amendmentno1toaandrcredi






                                                                EXECUTION VERSION                     AMENDMENT NO. 1 TO AMENDED AND RESTATED                                  CREDIT AGREEMENT                              THIS  AMENDMENT  NO.  1  TO  AMENDED  AND  RESTATED  CREDIT  AGREEMENT  (this  “Amendment”),  dated  as  of  November  15,  2019,  is  entered  into  by  and  among  Winnebago Industries, Inc., an Iowa corporation (the “Company”), Winnebago of Indiana, LLC, an Iowa  limited liability company (“Winnebago of Indiana”), Grand Design RV, LLC, an Indiana limited liability  company  (“Grand  Design”;  the  Company,  Winnebago  of  Indiana  and Grand  Design  are  collectively  referred to herein as the “Existing Borrowers”), Newmar Corporation, an Indiana corporation (“Newmar”;  Newmar  and  the  Existing  Borrowers  are  collectively  referred  to herein  as  the  “Borrowers”),  the  other  Loan Parties party hereto, the financial institutions party hereto as Lenders, and JPMorgan Chase Bank,  N.A., as Administrative Agent (the “Administrative Agent”).  Capitalized terms used but not otherwise  defined herein shall have the meanings given to them in the Credit Agreement referenced below.                                        WITNESSETH                WHEREAS,  the  Existing  Borrowers,  the  other  Loan  Parties  party  thereto  (including  Octavius Corporation), the financial institutions from time to time party thereto as Lenders (collectively,  the “Lenders”) and the Administrative Agent are parties to an Amended and Restated Credit Agreement,  dated as of October 22, 2019 (as amended by this Amendment, the “Credit Agreement”);                WHEREAS, Octavius Corporation has acquired all of the outstanding Equity Interests of  Newmar;                WHEREAS,  the  Existing  Borrowers  have  requested  that  the  Lenders  and  the  Administrative  Agent  agree  to  amend  the  Credit  Agreement  to  add  Newmar  as  a  borrower  and  make  certain other amendments thereto; and                WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to such  amendments on the terms and conditions set forth herein;                 NOW,  THEREFORE,  in  consideration  of  the  premises  set  forth  above, the terms and  conditions  contained  herein,  and  other  good  and  valuable  consideration,  the  receipt  and  sufficiency  of  which are hereby acknowledged, the Borrowers, the other Loan Parties party hereto, the Lenders party  hereto and the Administrative Agent hereby agree as follows:                 Section 1.   Amendments  to  Credit  Agreement.  The  parties  hereto  agree  that,  effective as of the date of satisfaction of the conditions precedent set forth in Section 2 below (such date,  the  “Effective  Date”),  the  Credit  Agreement  and  Exhibits  thereto  shall  be  amended  (i)  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 in the pages of the Credit Agreement and Exhibits thereto attached as Annex  A hereto and (ii) Schedules 3.15 and 3.18 to the Credit Agreement are hereby amended and restated in  their entirety to read as set forth on Annex B attached hereto.                 Section 2.   Conditions  of  Effectiveness.   The  effectiveness  of  this  Amendment  is  subject to the conditions precedent that the Administrative Agent shall have received:                (a)    counterparts  to  this  Amendment,  duly  executed  by  each  of  the  Borrowers,  the  other Loan Parties, the Lenders and the Administrative Agent;                                                 1 US-DOCS\111513709.3 





 






             (b)    all  documentation  and  other  information  regarding  Newmar  requested  in  connection  with  applicable  “know  your  customer”  and  anti-money laundering  rules  and  regulations,  including the USA PATRIOT Act, to the extent requested in writing of the Company and (ii) to the extent  Newmar qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender  that has requested, in a written notice to the Company prior to the Amendment No. 1 Effective Date, a  Beneficial Ownership Certification in relation to Newmar shall have received such Beneficial Ownership  Certification (provided that, upon the execution and delivery by such Lender of its signature page to this  Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied);                (c)    payment and reimbursement of the Administrative Agent’s and its affiliates’ fees  and  expenses  (including,  to  the extent  invoiced,  reasonable  fees  and  expenses  of  counsel  for  the  Administrative Agent) in connection with this Amendment and the other Loan Documents; and                 (d)    such other opinions, instruments and documents as are reasonably requested by  the Administrative Agent.                Section 3.   Representations  and  Warranties  of  the  Loan  Parties.  Each Loan  Party hereby represents and warrants as follows:                (a)    This Amendment has been duly executed  and  delivered  by  it  and  constitutes  its  legal,  valid  and  binding  obligations,  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.                (b)    Immediately  after  giving  effect  to  this  Amendment,  the  representations  and  warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material  respects (provided that any representation or warranty that is qualified by materiality, Material Adverse  Effect or similar language shall be true and correct in all respects) on and as of the date hereof, except to  the extent that such representations and warranties specifically refer to an earlier date, in which case they  shall  be  true  and  correct  in  all  material  respects  (provided  that  any  representation  or  warranty  that  is  qualified  by  materiality,  Material  Adverse  Effect  or  similar  language  shall  be  true  and  correct  in  all  respects) as of such earlier date.                (c)    Immediately after giving effect to this Amendment, no Default or Event of Default  shall have occurred and be continuing.                 Section 4.    Reaffirmation.  Except as specifically set forth in this Amendment, the  Loan Documents shall remain in full force and effect and are hereby reaffirmed, ratified and confirmed.   To the extent that any provision of this Amendment conflicts with any terms or conditions set forth in the  Loan  Documents,  the  provisions  of  this  Amendment  shall  supersede  and  control.   Except as  expressly  provided  herein,  the  execution  and  delivery  of  this  Amendment  shall  not:  (i)  constitute  an  extension,  modification,  or  waiver  of  any  aspect  of  the  Loan  Documents  or any  right  or  remedy  thereunder;  (ii)  extend the terms of the Loan Documents or the due date of any of the loans set forth therein; (iii) establish  a course of dealing between the Administrative Agent, the Issuing Bank and/or the Lenders and the Loan  Parties or give rise to any obligation on the part of the Administrative Agent, the Issuing Bank and/or any  Lender to extend, modify or waive any term or condition of the Loan Documents; or (iv) give rise to any  defenses or counterclaims to the Administrative Agent’s, the Issuing Bank’s and/or any Lender’s right to  compel payment of any loan or to otherwise enforce its rights and remedies under the Loan Documents.   Each of the Loan Parties restates, acknowledges and agrees that the Secured Obligations are outstanding  without  claim,  offset,  counterclaim,  defense  or  affirmative  defense  of  any  kind  and  the  Secured  Obligations remain the continuing and individual obligations of the Loan Parties, until the termination of                                              2 





 






all  Commitments,  payment  and  satisfaction  in  full  in  cash  of  all  Secured  Obligations  (other  than  Unliquidated   Obligations),  and  the  cash  collateralization  of  all  Unliquidated  Obligations  in  a  manner  satisfactory to the Administrative Agent.                Section 5.   Effect on Credit Agreement.  Upon  the  effectiveness  of  this  Amendment, on and after the date hereof, each reference in the Credit Agreement to “this Agreement,”  “hereunder,”  “hereof,”  “herein”  or  words  of  like  import  shall  mean  and  be  a  reference  to  the  Credit  Agreement, as amended and modified hereby.                Section 6.   GOVERNING  LAW.   THIS  AMENDMENT  SHALL  BE  GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE  OF NEW YORK.                Section 7.   Headings.  Section headings in this Amendment are included herein for  convenience of reference only and shall not constitute a part of this Amendment for any other purpose.                Section 8.   Counterparts.  This Amendment may be executed by one or more of the  parties  to  this  Amendment  on  any  number  of  separate  counterparts  and  all  of  said  counterparts  taken  together  shall  be  deemed  to  constitute  one  and  the  same  instrument.  A  facsimile  or  PDF  copy  of  any  signature hereto shall have the same effect as the original thereof.                         [The remainder of this page is intentionally blank.]                                               3 





 






  IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above  written.                                           . WINNEBAGO INDUSTRIES, INC.                                            By,   ~.if✓~                                                ~•k.i.R~                                                 Title: Cto                                           WINNEBAGO OF INDIANA, LLC                                            Bye    ~t./~------                                               -N-ame-: ~,.,,----= ~,----- -----                                                Title: ~~t~                                            GRAND DESIGN RV, LLC                                             NEWMAR CORPORATION                                             Bye~*                                                N~       ~•~ ~                                                Title:   C..~O        :                    Signature Page to Amendment No. I to Amended & Restated Credit Agreement                                    Winnebago Industries, Inc. 





 












 






                       GOLDMAN SACHS BANK USA,individually   as a                        Lender                         By: ~— ~.                             Name: Thomas Ma~lning                             Title: Authorized Signatory   Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement                   Winnebago Industries, Inc.





 












 






                                                    Annex A         [see attached]                                           





 






                                                             EXECUTION VERSION                                AMENDED AND RESTATED                                CREDIT AGREEMENT                                       dated as of                                     October 22, 2019                                         among                             WINNEBAGO INDUSTRIES, INC.                             WINNEBAGO OF INDIANA, LLC                                GRAND DESIGN RV, LLC                               NEWMAR CORPORATION                             The Other Loan Parties Party Hereto                                 The Lenders Party Hereto                             JPMORGAN CHASE BANK, N.A.                                 as Administrative Agent                                          and                                BMO HARRIS BANK N.A.                                  as Syndication Agent                             _____________________________                             JPMORGAN CHASE BANK, N.A.                         as Sole Bookrunner and Sole Lead Arranger                                 ASSET BASED LENDING   US-DOCS\ 110011973.10 111500703.3





 






                               TABLE OF CONTENTS                                                                                 Page  ARTICLE I DEFINITIONS                                                             1        SECTION 1.01.        Defined Terms                                          1       SECTION 1.02.        Classification of Loans and Borrowings                47       SECTION 1.03.       Terms Generally                                        47       SECTION 1.04.       Accounting Terms; GAAP; Pro Forma Calculations         47       SECTION 1.05.       Status of Obligations                                  48       SECTION 1.06.       Interest Rates; LIBOR Notifications                    49       SECTION 1.07.       Amendment and Restatement of the Existing Credit Agreement 49  ARTICLE II THE CREDITS                                                           50        SECTION 2.01.       Commitments                                            50       SECTION 2.02.       Loans and Borrowings                                   50       SECTION 2.03.       Requests for Borrowings                                51       SECTION 2.04.       Protective Advances                                    51       SECTION 2.05.       Swingline Loans and Overadvances                       52       SECTION 2.06.       Letters of Credit                                      53       SECTION 2.07.       Funding of Borrowings                                  58       SECTION 2.08.       Interest Elections                                     59       SECTION 2.09.       Termination  and  Reduction  of  Commitments;  Increase  in                            Commitments                                           60       SECTION 2.10.       Repayment of Loans; Evidence of Debt                   62       SECTION 2.11.       Prepayment of Loans                                    63       SECTION 2.12.       Fees                                                   63       SECTION 2.13.       Interest                                               64       SECTION 2.14.       Alternate Rate of Interest; Illegality                 65       SECTION 2.15.       Increased Costs                                        66       SECTION 2.16.       Break Funding Payments                                 68       SECTION 2.17.       Taxes                                                  68       SECTION 2.18.       Payments Generally; Allocation of Proceeds;  Pro  Rata  Treatment;                           Sharing of Set-offs                                    71       SECTION 2.19.       Mitigation Obligations; Replacement of Lenders         74       SECTION 2.20.       Defaulting Lenders                                     75       SECTION 2.21.       Returned Payments                                      77       SECTION 2.22.       Banking Services and Swap Agreements                   77  ARTICLE III REPRESENTATIONS AND WARRANTIES                                       78        SECTION 3.01.       Organization; Powers                                   78       SECTION 3.02.       Authorization; Enforceability                          78       SECTION 3.03.       Governmental Approvals; No Conflicts                   78       SECTION 3.04.       Financial Condition; No Material Adverse Change        78       SECTION 3.05.       Properties                                             79       SECTION 3.06.       Litigation and Environmental Matters                   79       SECTION 3.07.       Compliance with Laws and Agreements; No Default        79       SECTION 3.08.       Investment Company Status                              80       SECTION 3.09.       Taxes                                                  80       SECTION 3.10.       ERISA                                                  80       SECTION 3.11.       Disclosure                                             80       SECTION 3.12.       Material Agreements                                    80                                           i





 






       SECTION 3.13.       Margin Stock                                          80       SECTION 3.14.       Liens                                                  81       SECTION 3.15.       Capitalization and Subsidiaries                        81       SECTION 3.16.       No Burdensome Restrictions                             81       SECTION 3.17.       Solvency                                               81       SECTION 3.18.       Insurance                                              81       SECTION 3.19.       Security Interest in Collateral                        81       SECTION 3.20.       Employment Matters                                     82       SECTION 3.21.       Anti-Corruption Laws and Sanctions                     82       SECTION 3.22.       EEA Financial Institutions                             82       SECTION 3.23.       Use of Proceeds                                        82       SECTION 3.24.       Plan Assets; Prohibited Transactions                   82  ARTICLE IV CONDITIONS                                                            82        SECTION 4.01.       Effective Date                                         82       SECTION 4.02.       Each Other Credit Event                                83  ARTICLE V AFFIRMATIVE COVENANTS                                                  84        SECTION 5.01.       Financial Statements; Borrowing Base and Other Information 84       SECTION 5.02.       Notices of Material Events                             87       SECTION 5.03.       Existence; Conduct of Business                         87       SECTION 5.04.       Payment of Obligations                                 87       SECTION 5.05.       Maintenance of Properties                              88       SECTION 5.06.       Books and Records; Inspection Rights                   88       SECTION 5.07.       Compliance with Laws and Material Contractual Obligations 88       SECTION 5.08.       Use of Proceeds                                        88       SECTION 5.09.       Insurance                                              89       SECTION 5.10.       Casualty and Condemnation                              89       SECTION 5.11.       Appraisals                                             89       SECTION 5.12.       Field Examinations                                     89       SECTION 5.13.       Accuracy of Information                                90       SECTION 5.14.       Additional Collateral; Further Assurances              90  ARTICLE VI NEGATIVE COVENANTS                                                    92        SECTION 6.01.       Indebtedness                                           92       SECTION 6.02.       Liens                                                  94       SECTION 6.03.       Fundamental Changes                                    97       SECTION 6.04.       Investments, Loans, Advances, Guarantees and Acquisitions 98       SECTION 6.05.       Asset Sales                                           102        SECTION 6.06.       Sale and Leaseback Transactions                      104        SECTION 6.07.       Swap Agreements                                      104        SECTION 6.08.       Transactions with Affiliates                         104        SECTION 6.09.       Restricted Payments                                  105        SECTION 6.10.       Subordinated  Indebtedness  and  Amendments  to  Subordinated                            Indebtedness Documents                               107        SECTION 6.11.       Restrictive Agreements                               108        SECTION 6.12.       Fixed Charge Coverage Ratio                          109        SECTION 6.13.       [Intentionally Omitted]                              109        SECTION 6.14.       Depository Banks                                     109                                            ii





 






ARTICLE VII EVENTS OF DEFAULT                                                   110  ARTICLE VIII THE ADMINISTRATIVE AGENT                                           113         SECTION 8.01.       Authorization and Action                             113        SECTION 8.02.       Administrative Agent’s Reliance, Indemnification, Etc. 115        SECTION 8.03.       Posting of Communications                            116        SECTION 8.04.       The Administrative Agent Individually                117        SECTION 8.05.       Successor Administrative Agent                       117        SECTION 8.06.       Acknowledgements of Lenders and Issuing Bank         118        SECTION 8.07.       Collateral Matters                                   119        SECTION 8.08.       Credit Bidding                                       120        SECTION 8.09.       Certain ERISA Matters                                121        SECTION 8.10.       Flood Laws                                           122  ARTICLE IX MISCELLANEOUS                                                        122         SECTION 9.01.      Notices                                               122        SECTION 9.02.       Waivers; Amendments                                  124        SECTION 9.03.       Expenses; Indemnity; Damage Waiver                   127        SECTION 9.04.       Successors and Assigns                               129        SECTION 9.05.       Survival                                             134        SECTION 9.06.       Counterparts; Integration; Effectiveness; Electronic Execution 134        SECTION 9.07.       Severability                                         134        SECTION 9.08.       Right of Setoff                                      135        SECTION 9.09.       Governing Law; Jurisdiction; Consent to Service of Process 135        SECTION 9.10.       WAIVER OF JURY TRIAL                                 136        SECTION 9.11.       Headings                                             136        SECTION 9.12.       Confidentiality                                      136        SECTION 9.13.       USA PATRIOT Act                                      137        SECTION 9.14.       Several Obligations; Nonreliance; Violation of Law   137        SECTION 9.15.       Disclosure                                           137        SECTION 9.16.       Appointment for Perfection                           137        SECTION 9.17.       Interest Rate Limitation                             138        SECTION 9.18.       Release of Loan Guarantors                           138        SECTION 9.19.       Intercreditor Agreements                             138        SECTION 9.20.       Marketing Consent                                    139        SECTION 9.21.       Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial                            Institutions                                         139        SECTION 9.22.      No Fiduciary Duty, etc.                               139        SECTION 9.23.       Acknowledgement Regarding Any Supported QFCs         140  ARTICLE X LOAN GUARANTY                                                         141         SECTION 10.01.      Guaranty                                             141        SECTION 10.02.      Guaranty of Payment                                  141        SECTION 10.03.     No Discharge or Diminishment of Loan Guaranty         141        SECTION 10.04.      Defenses Waived                                      142        SECTION 10.05.      Rights of Subrogation                                142        SECTION 10.06.      Reinstatement; Stay of Acceleration                  142        SECTION 10.07.      Information                                          142        SECTION 10.08.      Termination                                          143        SECTION 10.09.      Taxes                                                143        SECTION 10.10.      Maximum Liability                                    143                                           iii





 






       SECTION 10.11.      Contribution                                         143        SECTION 10.12.      Liability Cumulative                                 144        SECTION 10.13.      Keepwell                                             144  ARTICLE XI THE BORROWER REPRESENTATIVE                                          144         SECTION 11.01.      Appointment; Nature of Relationship                  144        SECTION 11.02.      Powers                                               145        SECTION 11.03.      Employment of Agents                                 145        SECTION 11.04.     Notices                                               145        SECTION 11.05.      Successor Borrower Representative                    145        SECTION 11.06.      Execution of Loan Documents; Borrowing Base Certificate 145        SECTION 11.07.      Reporting                                            145  SCHEDULES:  Commitment Schedule Schedule 3.15 –     Capitalizations and Subsidiaries Schedule 3.18 –     Insurance Schedule 6.01 –     Existing Indebtedness Schedule 6.02 –     Existing Liens Schedule 6.04 –     Existing Investments Schedule 6.05 –     Dispositions Schedule 6.08 –     Transactions with Affiliates Schedule 6.11 –     Restrictive Agreements  EXHIBITS:  Exhibit A    –      Form of Assignment and Assumption Exhibit B-1  –      Form of Borrowing Base Certificate Exhibit B-2  –      Form Aggregate Borrowing Base Certificate Exhibit C    –      Form of Compliance Certificate Exhibit D    –      List of Closing Documents Exhibit E    –      Form of Joinder Agreement Exhibit F-1  –      U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for                      U.S. Federal Income Tax Purposes) Exhibit F-2  –      U.S. Tax Certificate (For Foreign Participants that are not Partnerships for                     U.S. Federal Income Tax Purposes) Exhibit F-3  –      U.S. Tax Certificate (For Foreign Participants that are Partnerships for               U.S. Federal Income Tax Purposes) Exhibit F-4  –      U.S. Tax  Certificate  (For  Foreign  that are  Partnerships  for  U.S. Federal              Income Tax Purposes) Exhibit G-1  –      Form of Borrowing Request Exhibit G-2  –      Form of Interest Election Request                                            iv





 






       AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement       ”) dated as of October 22, 2019 among Winnebago Industries, Inc., Winnebago of Indiana, LLC  and , GRAND DESIGN RV, LLC  and  NEWMAR   CORPORATION    , as Borrowers, the other LOAN PARTIES from time to time party hereto, the LENDERS from time to time party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.         WHEREAS, the Loan Parties, certain of the Lenders and the Administrative Agent are currently party to the Credit Agreement, dated as of November 8, 2016 (as amended prior to the date hereof, the “Existing Credit Agreement ”);         WHEREAS, the Borrowers, the other Loan Parties, the Lenders and the Administrative Agent have agreed to enter into this Agreement in order to (i) amend and restate the Existing Credit Agreement in its entirety; (ii) modify and re-evidence the “Obligations ” under, and as defined in, the Existing Credit Agreement, which shall be repayable in accordance with the terms of this Agreement and the other Loan Documents; and (iii) set forth the terms and conditions under which the Lenders will, from time to time, make loans and extend other financial accommodations to or for the benefit of the Loan Parties;         WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend and restate in  its  entirety  the  Existing  Credit  Agreement  and  re-evidence  the  obligations  and  liabilities  of  the Borrowers and the other Loan Parties outstanding thereunder, which shall be payable in accordance with the terms hereof; and         WHEREAS, it is also the intent of the Borrowers and the “Loan  Guarantors ” (as referred to and defined in the Existing Credit Agreement) to confirm that all obligations under the “Loan Documents ” (as referred  to  and  defined  in  the  Existing  Credit  Agreement)  shall  continue  in  full  force  and  effect  as modified  and/or  restated  by  the  Loan  Documents  and that,  from  and  after  the  Effective  Date,  all references to the “Credit  Agreement ” contained in any such existing “Loan  Documents ” shall be deemed to refer to this Agreement;        NOW,  THEREFORE,  in  consideration  of  the  premises  and  the  mutual  covenants  contained herein, the parties hereto hereby agree that the Existing Credit Agreement is hereby amended and restated as follows:                                        ARTICLE I                                         Definitions         SECTION 1.01. Defined   Terms .  As  used  in  this  Agreement,  the  following  terms  have  the meanings specified below:         “ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the REVLIBOR30 Rate.         “ABL  Priority  Collateral ” has the meaning assigned thereto in the ABL/Term Loan Intercreditor Agreement, and is intended to indicate that portion of the Collateral subject to a prior Lien in favor of the Administrative Agent on behalf of the Secured Parties.   US-DOCS\ 110011973.10 111500703.3





 






       “ABL/Term   Loan   Intercreditor   Agreement ”  means  the  Intercreditor  Agreement,  dated  as  of November 8,  2016,  by  and  among  the  Administrative  Agent,  as  ABL  Representative,  the  Term  Loan Agent, as Term Loan Representative, and each of the Loan Parties party thereto.         “Acceptable   Field   Examination ”  means,  with  respect  to  any  assets  of  any  Loan  Party,  a  field examination conducted by the Administrative Agent or its designee of such assets and related working capital matters and of such Loan Party’s related data processing and other systems, the results of which shall be satisfactory to the Administrative Agent in its Permitted Discretion.         “Acceptable   Inventory   Appraisal ”  means,  with respect to any Inventory, an appraisal  of  such Inventory from one or more firms satisfactory to the Administrative Agent, which appraisals shall be satisfactory to the Administrative Agent in its Permitted Discretion.        “Account ” has the meaning assigned to such term in the Security Agreement.         “Account Debtor ” means any Person obligated on an Account.         “Acquisition ” means any transaction, or any series of related transactions, consummated on or after the Effective Date, by which any Loan Party (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person.         “Adjusted  LIBO  Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by  (b) the Statutory Reserve Rate.         “Administrative  Agent ” means JPMorgan Chase Bank, N.A. (including its successors, branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.         “Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.         “Affiliate ” means, with respect to a specified 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 Indemnitee ” has the meaning assigned to it in Section 9.03(c).         “Agent Party ” has the meaning assigned to such term in Section 9.01(d) .         “Aggregate Availability ” means, at any time, the aggregate Availability of all the Borrowers.         “Aggregate Borrowing Base ” means the aggregate of the Borrowing Bases of all the Borrowers.         “Aggregate  Borrowing  Base  Certificate ” means a certificate, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B-2 or another form which is acceptable to the Administrative Agent in its sole discretion.                                              2





 






       “Aggregate   Commitment ”  means  the  aggregate  of  the  Commitments  of  all  of the  Lenders,  as reduced or increased from time to time pursuant to the terms and conditions hereof. Subject to the other terms set forth herein, as of the Effective Date, the Aggregate Commitment is $192,500,000.         “Aggregate  Revolving  Exposure ” means, at any time, the aggregate Revolving Exposures of all the Lenders at such time.         “Alternate  Base  Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus  1⁄2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus  1%, provided  that, for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not  available  for  such  one  month  Interest  Period,  the  Interpolated  Rate)  at  approximately  11:00  a.m. London time on such day, subject to the interest rate floors set forth therein. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14  hereof, then the Alternate Base Rate shall be the greater of clause  (a)  and (b) above and shall be determined without reference to clause  (c)  above. For the avoidance of doubt, if the Alternative Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.         “Amendment No. 1 Effective Date” means November 15, 2019.         “Anti-Corruption  Laws ” means all laws, rules, and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.        “Applicable  Percentage ” means, with respect to any Lender, a percentage equal to a fraction the numerator  of  which  is  such  Lender’s  Commitment  and the  denominator  of  which  is  the  Aggregate Commitment; provided  that, if the Commitments have terminated or expired, the Applicable Percentage with  respect  to  any  Lender  shall  be  determined  based  upon  such  Lender’s  share  of  the  Aggregate Revolving Exposure at such time. Notwithstanding the foregoing, in accordance with Section 2.20 , so long  as  any  Lender  shall  be  a  Defaulting  Lender,  such  Defaulting  Lender’s  Commitment  shall  be disregarded in the foregoing calculations.         “Applicable   Pledge   Percentage ”  means  (a)  in  the  case  of  a  pledge  by  the  Company or  any Subsidiary of its voting Equity Interests in an Excluded Domestic Subsidiary or an Excluded Foreign Subsidiary, 65%, and (b) in all other cases, 100%.         “Applicable  Rate ” means, for any day, with respect to any Loan, the applicable rate per annum set forth below under the caption “Eurodollar or REVLIBOR30 Spread ” or “Alternate Base Rate Spread ”, as the case may be, based upon the Average Quarterly Availability during the most recently ended fiscal quarter of the Company (it being understood and agreed, for purposes of clarity, that the “Eurodollar or REVLIBOR30 Spread” shall be applicable to ABR Loans at all times that ABR Loans bear interest by reference to the REVLIBOR30 Screen Rate and the “Alternate Base Rate Spread” shall be applicable to ABR Loans at all times that ABR Loans bear interest by reference to the Alternate Base Rate); provided that, the “Applicable Rate” shall be the applicable rates per annum set forth below in Category 1 during the period from the Effective Date to, but excluding, the first day following the end of the first full fiscal quarter of the Company ending after the Effective Date:        Average Quarterly Availability         Eurodollar or        Alternate Base Rate                                                                        Spread                                             3





 






                                         REVLIBOR30 Spread               Category 1    66% of the Aggregate Commitment          1.25%                    0.25%               Category 2   < 66% of the Aggregate Commitment but    >  33% of the Aggregate Commitment         1.50%                    0.50%               Category 3    < 33% of the Aggregate Commitment           1.75%                    0.75%  For purposes of the foregoing, each change in the Applicable Rate shall be effective during the period commencing on and including the first day of each fiscal quarter of the Company and ending on the last day of such fiscal quarter, it being understood and agreed that, for purposes of determining the Applicable Rate on the first day of any fiscal quarter of the Company, the Average Quarterly Availability during the most recently ended fiscal quarter of the Company shall be used.  Notwithstanding the foregoing, the Average Quarterly Availability shall be deemed to be in Category 3  at the option of the Administrative Agent or at the request of the Required Lenders if the Borrowers fail to deliver any Aggregate Borrowing Base Certificate or Borrowing Base Certificate required to be delivered by them pursuant to Section 5.01 , during the period from the expiration of the time for delivery thereof until five (5) days after the date each such Aggregate Borrowing Base Certificate or Borrowing Base Certificates, as applicable, are so delivered.        “Approved Electronic Platform ” has the meaning assigned to it in Section 8.03(a).         “Approved Fund ” has the meaning assigned to such term in Section 9.04(b) .        “Assignment  and  Assumption ” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04 ), and accepted by the Administrative Agent, in the form of Exhibit A  or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.         “Availability ” means, at any time:         (a)   with respect to the Company, an amount equal to the lesser of (i) an amount equal to (x) the Aggregate Commitment minus  (y) the Aggregate Revolving Exposure and (ii) an amount equal to (x) the Aggregate Borrowing Base minus  (y) the Aggregate Revolving Exposure;         (b)   with respect to Winnebago of Indiana, an amount equal to the lesser of (i) an amount equal to (x) the Aggregate Commitment minus  (y) the Aggregate Revolving Exposure and (ii) an amount equal to (x) the sum of Winnebago of Indiana’s Borrowing Base plus  the Company’s Borrowing Base minus  (y) the sum of (A) the Winnebago of Indiana Revolving Exposures of all Lenders plus  (B) the excess, if any, of the aggregate Company Revolving Exposures of all Lenders over  the an  amount  equal to  the  sum  of  (x)  the  Excess Grand Design Borrowing Base plus ( y)  the  Excess  Newmar  Borrowing Base  plus  ( C) an  amount  equal  to  the  sum  of  (x)  the Grand Design Utilization ; and  (y)  the  Newmar Utilization;         (c)   with respect to Grand Design, an amount equal to the lesser of (i) an amount equal to (x) the Aggregate Commitment minus  (y) the Aggregate Revolving Exposure and (ii) an amount equal to (x) the sum of Grand Design’s Borrowing Base plus  the Company’s Borrowing Base minus  (y) the sum of (A) the Grand Design Revolving Exposures of all Lenders plus  (B) the excess, if any, of the aggregate                                             4





 






Company Revolving Exposures of all Lenders over  the an  amount  equal  to  the  sum  of  (x)  the  Excess Winnebago  of  Indiana  Borrowing  Base  plus  ( y)   the   Excess   Newmar   Borrowing   Base    plus   ( C) an amount equal to the sum of (x)  the Winnebago of Indiana Utilization . and (y) the Newmar Utilization; and         (d)   with  respect  to  Newmar,  an  amount  equal  to  the  lesser  of  (i)  an  amount  equal  to  (x) the  Aggregate  Commitment  minus  (y)  the  Aggregate  Revolving  Exposure  and  (ii)  an  amount  equal to (x) the sum of Newmar’s Borrowing Base plus the Company’s Borrowing Base minus (y) the sum of  (A)  the  Newmar  Revolving  Exposures  of  all  Lenders  plus  (B)  the  excess,  if  any,  of  the  aggregate Company  Revolving  Exposures  of  all  Lenders  over  an  amount  equal  to  the  sum  of  (x)  the  Excess Winnebago  of  Indiana  Borrowing  Base  plus  (y)  the  Excess  Grand  Design  Borrowing  Base   plus  (C) an  amount  equal  to  the  sum  of  (x)  the  Winnebago  of  Indiana  Utilization  and  (y)  the  Grand  Design Utilization.         “Availability  Period ” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.         “Available   Commitment ”  means,  with  respect  to  any  Lender  at  any  time,  such  Lender’s Commitment minus such Lender’s Revolving Exposure.        “Average  Quarterly  Availability ” means, for any fiscal quarter of the Company, an amount equal to  the  average  daily  Aggregate  Availability  during such  fiscal  quarter,  as  determined  by  the Administrative  Agent;  provided   that,  in  order  to  determine  Aggregate  Availability  on  any  day  for purposes of this definition, the Aggregate Borrowing Base and each Borrower’s Borrowing Base for such day shall be determined by reference to the most recent Aggregate Borrowing Base Certificate and each other Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 5.01(f)  as of such day.         “Bail-In   Action ”  means  the  exercise  of  any  Write-Down  and  Conversion  Powers  by  the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In  Legislation ” means, with respect to any EEA Member Country implementing Article 55 of  Directive  2014/59/EU  of  the  European  Parliament and  of  the  Council  of  the  European  Union,  the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.        “Banking  Services ” means each and any of the following bank services provided to the Company or  any  Subsidiary  by  any  Lender  or  any  of  its  Affiliates:  (a) credit  cards  for  commercial  customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards, (c) merchant processing services, (d) treasury management services (including, without limitation, controlled disbursement,  automated  clearinghouse  transactions,  return  items,  any  direct  debit  scheme  or arrangement, overdrafts and interstate depository network services) and (e) Lease Financing.        “Banking   Services   Agreement ”  means  any  agreement  entered  into  by  the  Company  or  any Subsidiary in connection with Banking Services.         “Banking   Services   Obligations ”  means  any  and  all  obligations  of  the  Company  and its Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services; provided , however , that Banking Services Obligations in respect of Lease Financing shall be limited to Lease Deficiency Obligations.                                             5





 






       “Banking  Services  Reserves ” means all Reserves which the Administrative Agent from time to time establishes in its Permitted Discretion for Banking Services then provided or outstanding.         “Bankruptcy  Code ” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.         “Bankruptcy Event ” means, with respect to any Person, when such Person becomes the subject of a  voluntary  or  involuntary  bankruptcy  or  insolvency  proceeding,  or  has  had  a  receiver,  conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered  in  respect  thereof,  provided   that  a  Bankruptcy  Event  shall  not  result  solely  by  virtue  of  any ownership  interest,  or  the  acquisition  of  any  ownership  interest,  in  such  Person  by  a  Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs  of  attachment  on  its  assets  or  permits  such  Person  (or  such  Governmental  Authority  or instrumentality),  to  reject,  repudiate,  disavow  or disaffirm  any  contracts  or  agreements  made  by  such Person.         “Benefit   Plan ”  means  any  of  (a)  an  “employee  benefit  plan”  (as  defined  in  Section 3(3)  of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations 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”.        “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.         “Board ” means the Board of Governors of the Federal Reserve System of the United States of America.         “Bond  Hedge  Transaction ” has the meaning assigned to such term in the definition of “Permitted Call Spread Swap Agreement”.         “Borrower ” or “Borrowers ” means, individually or collectively, (a) the Company, (b) Winnebago of Indiana  and , (c) Grand Design  and (d) Newmar .         “Borrower Representative ” has the meaning assigned to such term in Section 11.01 .         “Borrowing ” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (b) Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (c) a Swingline Loan, (d) a Protective Advance and (e) an Overadvance.        “Borrowing  Base ” means, at any time, with respect to each Borrower, the sum of (a) 90% (less the Dilution Percentage then in effect) of an amount equal to (i) such Borrower’s Eligible Accounts at such time minus  (ii) the Specified Reserves with respect to such Borrower at such time plus  (b) the lesser of (i) 75% of such Borrower’s Eligible Inventory (other than any Eligible Non-Perpetual Inventory and any Eligible Non-U16 Inventory), at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis and (ii) the product of 85% multiplied  by  the Net Orderly Liquidation Value                                             6





 






percentage  identified  in  the  most  recent  inventory appraisal  ordered  by  the  Administrative  Agent multiplied  by  such Borrower’s Eligible Inventory (other than any Eligible Non-Perpetual Inventory and any  Eligible  Non-U16  Inventory),  valued  at  the  lower  of  cost  or  market  value,  determined  on  a first-in-first-out basis plus  (c) the lesser of (i) 55% of such Borrower’s Eligible Non-Perpetual Inventory and Eligible Non-U16 Inventory, at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis and (ii) the product of 65%  multiplied   by   the  Net  Orderly  Liquidation  Value percentage  identified  in  the  most  recent  inventory appraisal  ordered  by  the  Administrative  Agent multiplied by  such Borrower’s Eligible Non-Perpetual Inventory and Eligible Non-U16 Inventory, valued at the lower of cost or market value, determined on a first-in-first-out basis minus  (d) Reserves (other than the Specified Reserves or any Reserves related to dilution of Accounts that are captured in the definition of Dilution Percentage) related to such Borrower, such Eligible Accounts or such Eligible Inventory.        Notwithstanding the foregoing, no assets acquired pursuant to any Acquisition shall be included in the calculation of any Borrowing Base until such time as the Administrative Agent shall have received an Acceptable Inventory Appraisal and an Acceptable Field Examination shall have been completed with respect to such assets; provided  that, Eligible Accounts and Eligible Inventory acquired pursuant to any Acquisition but for which no Acceptable Inventory Appraisal has been received or no Acceptable Field Examination has been completed may be included in a Borrowing Base for a period of up to ninety (90) days following such Acquisition (or such longer period as the Administrative Agent may agree to in its sole discretion), so long as (i) the aggregate amount of such acquired assets included in such Borrowing Base shall not exceed an amount equal to 20% of such Borrowing Base (prior to giving effect to such acquired  assets)  at  any  time  and  (ii)  subject  to  clause   (i)   of  this  proviso,  such  Eligible  Accounts  and Eligible Inventory shall be included in such Borrowing Base with the following adjustments: (A) the advance rate set forth in clause  (a)  shall be 75% and (B) in lieu of including such Eligible Inventory in any Borrowing Base in accordance with clauses  (b)  and (c)  above, the applicable Borrowing Base shall include an amount equal to 50% of such Eligible Inventory, valued at the lower of cost or market value, determined on a first-in-first-out basis. For purposes of clarity, any such assets included in any Borrowing Base pursuant to the proviso of the preceding sentence shall be subject to all future appraisals and field examinations conducted pursuant to Section 5.11  or 5.12 , as applicable, after the acquisition thereof.        “Borrowing  Base  Certificate ” means a certificate, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B-1  or another form which is acceptable to the Administrative Agent in its sole discretion.         “Borrowing   Request ”  means  a  request  by  the  Borrower  Representative  for  a  Borrowing  in accordance with Section 2.03 .         “Burdensome   Restrictions ”  means  any  consensual  encumbrance  or  restriction  of  the  type described  in  clause (a)   or  (b)  of  Section 6.11   (without  giving  effect  to  any  exceptions  described  in clauses (i)  and (ii)  of the proviso to Section 6.11 ).         “Business  Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided  that, when used in connection with a Eurodollar Loan or a Loan accruing interest at REVLIBOR30 Rate without giving effect to the proviso contained in the definition for “REVLIBOR30 Rate, the term “Business Day” shall also exclude any day on which banks are not open for general business in London.        “Canadian Dollars ” and “Cdn.$ ” means dollars in the lawful currency of Canada.         “Capital  Expenditures ” means, for any period, (a) the additions to property, plant and equipment and other capital expenditures of the Company and its Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the Company and its Subsidiaries for such period prepared in                                             7





 






accordance with GAAP, excluding (i) any such expenditures made to restore, replace or rebuild assets to the condition of such assets immediately prior to any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, such assets to the extent such expenditures are made with insurance proceeds, condemnation awards or damage recovery proceeds relating  to  any  such  casualty,  damage,  taking,  condemnation  or  similar  proceeding,  (ii)  any  such expenditures constituting Permitted Acquisitions or any other acquisition of all the Equity Interests in, or all or substantially all the assets of (or the assets constituting a business unit, division, product line or line of business of), any Person and related costs and expenses and (iii) any such expenditures in the form of a substantially  contemporaneous  exchange  of  similar  property,  plant,  equipment  or  other  capital  assets, except to the extent of cash or other consideration (other than the assets so exchanged), if any, paid or payable by the Company and its Subsidiaries, and (b)  such  portion  of  principal  payments  on  Capital Lease Obligations made by the Company and its Subsidiaries  during  such  period  as  is  attributable  to additions to property, plant and equipment that have not otherwise been reflected on the consolidated statement of cash flows as additions to property, plant and equipment for such period.         “Capital  Lease  Obligations ” of any Person means 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  lease  obligations  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.        “CFC ” means any Subsidiary organized under the laws of any jurisdiction other than the United States of America, any state thereof or the District of Columbia, that is a “controlled foreign corporation” for purposes of Section 957 of the Code.        “Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company; (b) occupation at any time of a majority of the seats (other than vacant seats) on the board of  directors  of  the  Company  by  Persons  who  were  neither  (i)  nominated,  appointed  or  approved  for consideration by shareholders for election by the board of directors of the Company nor (ii) appointed by the directors of the Company so nominated, appointed or approved; (c) the acquisition of direct or indirect Control of the Company by any Person or group; (d) the occurrence of a change in control, or other similar  provision,  as  defined  in  any  agreement  or  instrument  evidencing  any  Material  Indebtedness (triggering a default or mandatory prepayment, which  default  or  mandatory  prepayment has not been waived in writing); or (e) the Company ceases to own, directly or indirectly, and Control 100% (other than directors’ qualifying shares) of the ordinary voting and economic power of any Borrower.        “Change  in  Law ” means the occurrence, after the date of this Agreement (or with respect to any Lender,  if  later,  the  date  on  which  such  Lender  becomes  a  Lender),  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) compliance  by  any  Lender  or  any  Issuing  Bank  (or,  for  purposes  of Section 2.15(b) , by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided  however , that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar                                             8





 






authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each  case  be  deemed  to  be  a  “Change   in   Law ”  regardless  of  the  date  enacted,  adopted,  issued  or implemented.         “Charges ” has the meaning assigned to such term in Section 9.17 .         “Class ” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans  comprising  such  Borrowing,  are  Revolving  Loans,  Swingline  Loans,  Protective  Advances  or Overadvances.         “Code ” means the Internal Revenue Code of 1986, as amended from time to time.        “Collateral ” means any and all property owned by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Secured Parties, to secure the Secured Obligations; provided  that in no case shall the “Collateral ” include any Excluded Assets.         “Collateral Access Agreement ” has the meaning assigned to such term in the Security Agreement.         “Collateral Documents ” means, collectively, the Security Agreement, the Mortgages and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees, subordination  agreements,  pledges,  powers  of  attorney,  consents,  assignments,  contracts,  fee  letters, notices, leases, financing statements and all other written matter whether heretofore, now, or hereafter executed by the Company or any of its Subsidiaries and delivered to the Administrative Agent.         “Collection Account ” has the meaning assigned to such term in the Security Agreement.         “Commercial  LC  Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all  outstanding  commercial  Letters  of  Credit  plus   (b)  the  aggregate  amount  of  all  LC  Disbursements relating  to  commercial  Letters  of  Credit  that  have not  yet  been  reimbursed  by  or  on  behalf  of  the Borrowers. The Commercial LC Exposure of any Lender at any time shall be its Applicable Percentage of the aggregate Commercial LC Exposure at such time.         “Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make  Revolving  Loans  and  to  acquire  participations in  Letters  of  Credit,  Overadvances,  Protective Advances and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to (a) Section 2.09  and (b) assignments by or to such Lender pursuant  to  Section 9.04 .  The  initial  amount  of  each  Lender’s  Commitment  is  set  forth  on  the Commitment  Schedule , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable.         “Commitment Schedule ” means the Schedule attached hereto identified as such.         “Commodity   Exchange   Act ”  means  the  Commodity  Exchange  Act  (7  U.S.C.  § 1  et  seq.),  as amended from time to time, and any successor statute.         “Communications ” has the meaning assigned to such term in Section 9.01(d) .                                              9





 






       “Company ” means Winnebago Industries, Inc., an Iowa corporation.         “Company  Revolving  Exposures ” means, with respect to any Lender at any time, and without duplication, the sum of (a) the outstanding principal amount of the Revolving Loans made by such Lender to the Company at such time plus  (b) such Lender’s LC Exposure with respect to Letters of Credit issued for the account of the Company at such time plus  (c) such Lender’s Swingline Exposure with respect to Swingline  Loans  made  to  the  Company  at  such  time  plus   (d)  an  amount  equal  to  its  Applicable Percentage of the aggregate principal amount of outstanding Protective Advances made to the Company at such time plus  (e) an amount equal to its Applicable Percentage of the aggregate principal amount of outstanding Protective Advances Overadvances  made to the Company at such time.         “Connection  Income  Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.         “Consolidated   EBITDA ”  means  Consolidated  Net  Income  plus ,  to  the  extent  deducted  from revenues  in  determining  Consolidated  Net  Income,  (i) Consolidated  Interest  Expense,  (ii) expense  for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary losses incurred other than in the ordinary course of business, (vi) non-cash charges, expenses or losses, (vii) any losses for such period attributable to early extinguishment of Indebtedness or obligations under any Swap Agreement, (viii) any unrealized losses for such period attributable to the application of “mark to market” accounting in respect of Swap Agreements, (ix) the cumulative effect for such period of a change in accounting principles, (x) non-recurring out-of-pocket transactional fees, costs and expenses relating to Permitted Acquisitions (or any failed Acquisitions), Investments, Indebtedness, securities offerings and Dispositions, including legal fees, advisory fees and upfront financing fees, (xi) non-recurring out-of-pocket fees, costs and expenses relating  to  the  incurrence,  refinancing,  amendment or  modification of Indebtedness on or prior to the Effective  Date,  (xii)  (A)  non-recurring  restructuring  charges  (including,  without  limitation,  relocation costs and costs relating to the opening, closure and/or consolidation of facilities) that are paid or to be paid in cash and (B) with respect to any acquisition or disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction occurring during such period, (1) any projected cost savings (net of continuing associated expenses) expected to be realized as a result of such event, to the extent such cost savings would be permitted to be reflected in financial statements prepared in compliance with Article 11 of  Regulation  S-X  under  the  Securities  Act  and  (2) any  other  demonstrable  cost-savings  (net  of continuing associated expenses) not included in the foregoing subclause (B)(1)  of this clause (xii)  that are reasonably projected in good faith by the Borrower Representative to be achieved in connection with any such event within the 18-month period following the consummation of such event, that are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Company and that are set forth in reasonable detail in a certificate of a Financial Officer of the Company (in the case of each of the foregoing subclauses (B)(1)  and (B)(2) , calculated on a pro forma basis as though such cost savings had been realized on the first day of such period, net of the amount of actual benefits realized during such period from such event); provided  that, (x) for purposes of determining Consolidated EBITDA for any period of four (4) consecutive fiscal quarters, the aggregate amount added back under subclauses  (A)  and (B)(2)  of this clause  (xii)  in respect of such period shall not exceed fifteen percent (15%) of Consolidated EBITDA (as calculated without giving effect to subclauses  (A)  and (B)(2)  of this clause  (xii) ), (y) all adjustments pursuant to the foregoing subclause  (B)  of this clause  (xii)  will be without duplication of any amounts that are otherwise included or added back in computing Consolidated EBITDA in accordance with this definition and (z) with respect to the foregoing subclause  (B)(2)  of this clause  (xii) , if any cost savings included in any pro forma calculations based on the anticipation that such cost savings will be achieved  within  such  18-month  period  shall  at  any  time  cease  to  be  reasonably  anticipated  by  the Company to be so achieved, then on and after such time, such cost savings shall no longer be added to Consolidated  EBITDA  pursuant  to  this  clause   (xii)   and  (xiii)  fees,  costs  and  expenses  incurred  in connection with the Company’s implementation of enterprise resource planning (ERP); provided  that, for                                            10





 






purposes of determining Consolidated EBITDA for any period of four (4) consecutive fiscal quarters of the Company, the aggregate amount added back under this clause  (xiii)  in respect of such period shall not exceed $8,000,000 minus , to the extent included in Consolidated Net Income, (1) interest income, (2) any cash payments made during such period in respect of items described in clause  (vi)  above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were incurred, (3) extraordinary gains realized other than in the ordinary course of business, (4) any non-cash gains for such period, including with respect to write-ups of assets or goodwill, determined on a consolidated basis in accordance with GAAP, (5) any gains attributable to the early extinguishment of Indebtedness or obligations under any Swap Agreement, determined on a consolidated basis in accordance with GAAP, (6) the cumulative effect for  such  period  of  a  change  in  accounting  principles  and  (7)  any  unrealized  gains  for  such  period attributable  to  the  application  of  “mark  to  market”  accounting  in  respect  of  Swap  Agreements,  all calculated for the Company and its Subsidiaries in accordance with GAAP on a consolidated basis. For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each such period, a “Reference  Period ”), (i) if at any time during such Reference Period the Company or any Subsidiary  shall  have  made  any  Material  Disposition,  the  Consolidated  EBITDA  for  such  Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, and  (ii) if  during  such  Reference  Period  the  Company  or  any  Subsidiary  shall  have  made  a  Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto (in the manner described in Section 1.04(b) ) as if such Material Acquisition occurred on the first  day  of  such  Reference  Period.  As  used  in  this  Agreement,  “Material   Acquisition ”  means  any acquisition  of  property  or  series  of  related  acquisitions  of  property  that  (a) constitutes  (i) assets comprising all or substantially all or any significant portion of a business or operating unit of a business, or (ii) all or substantially all of the common stock or other Equity Interests of a Person, and (b) involves the  payment  of  consideration  by  the  Company  and  its  Subsidiaries  in  excess  of  $10,000,000;  and “Material   Disposition ”  means  any  Disposition  of  property  or  series  of  related  sales,  transfers,  or dispositions of property that yields gross proceeds to the Company or any of its Subsidiaries in excess of $10,000,000.         “Consolidated   Interest   Expense ”  means,  with  reference  to  any  period,  the  interest  expense (including without limitation interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) of the Company and its Subsidiaries calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of the Company and its Subsidiaries allocable to such period in accordance with GAAP (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are allocable to such period in accordance with GAAP). In the event that the Company or any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant period, Consolidated Interest Expense shall be determined for such period on a pro forma basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.         “Consolidated  Net  Income ” means, with reference to any period, the net income (or loss) of the Company  and  its  Subsidiaries  calculated  in  accordance  with  GAAP  on  a  consolidated  basis  (without duplication) for such period; provided  that, there shall be excluded any income (or loss) of any Person other than the Company or a Subsidiary, but any such income so excluded may be included in such period or any later period to the extent of any cash dividends or distributions actually paid in the relevant period to the Company or any Subsidiary of the Company.                                             11





 






       “Consolidated Total Assets ” means, as of the date of any determination thereof, total assets of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the last day of the most recent Test Period, determined on a pro forma basis.         “Consolidated   Total   Indebtedness ” means at any time the sum, without duplication, of  (a) the aggregate Indebtedness of the Company and its Subsidiaries calculated on a consolidated basis as of such time  in  accordance  with  GAAP,  (b) the  aggregate  amount  of  Indebtedness  of  the  Company  and  its Subsidiaries relating to the maximum drawing amount of all letters of credit outstanding and bankers’ acceptances  and  (c) Indebtedness  of  the  type  referred  to  in  clauses (a)   or  (b)  hereof  of  another  Person guaranteed by the Company or any of its Subsidiaries; provided  that Consolidated Total Indebtedness shall exclude the aggregate amount of Indebtedness of the Company and its Subsidiaries in respect of undrawn  performance  and  commercial  letters  of  credit,  Guarantees  related  thereto,  obligations  with respect  to  deposits  and  advances  in  the  ordinary  course  of  business,  and  obligations  in  respect  of Repurchase Agreements.         “Consolidated   Total   Secured   Indebtedness ”  means,  as  of  any  date  of  determination,  any Consolidated Total Indebtedness that is secured by Liens on any assets or property of the Company or any of its Subsidiaries.        “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.         “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).        “Covered Party ” has the meaning assigned to it in Section 9.23 .         “Credit  Event ” means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.         “Credit  Party ” means the Administrative Agent, each Issuing Bank, the Swingline Lender or any other Lender.         “DDA  Access  Product ” means the bank service provided to any Loan Party by JPMCB in its sole discretion  consisting  of  direct  access  to  schedule payments  from  the  Funding  Account  by  electronic, internet  or  other  access  mechanisms  that  may  be  agreed  upon  from  time  to  time  by  JPMCB  and  the funding of such payments under the Loan Borrowing Option in the DDA Access Product Agreement.        “DDA Access Product Agreement ” means JPMCB’s Treasury Services End of Day Investment & Loan Sweep Service Terms, as in effect on the date of this Agreement, as the same may be amended from time to time.                                             12





 






       “Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.         “Defaulting  Lender ” means any Lender that (a) has failed, within two (2) Business Days of the date  required  to  be  funded  or  paid,  to  (i) fund  any  portion  of  its  Loans,  (ii) fund  any  portion  of  its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)  above, such Lender notifies the  Administrative  Agent  in  writing  that  such  failure  is  the  result  of  such  Lender’s  good  faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally  under  other  agreements  in  which  it  commits  to  extend  credit,  (c) has  failed,  within  three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans  and  participations  in  then  outstanding  Letters  of Credit  and  Swingline  Loans  under  this  Agreement,  provided   that  such  Lender  shall  cease  to  be  a Defaulting Lender pursuant to this clause (c)  upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (A) a Bankruptcy Event or (B) a Bail-In Action.         “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.         “Dilution  Percentage ” means,  with  respect  to  each  Borrower  at  any  time,  for  any  twelve-month period,   a   percentage   (rounded   to   the   nearest   tenth   of   one   percent)   determined   by   the   Administrative Agent,  based  on  information  contained  in  the  most  recent  field  examination  conducted  by  or  on  behalf  of the  Administrative  Agent  (or,  in  the  Permitted  Discretion  of  the  Administrative  Agent,  based  on  updated information  provided  to  the  Administrative  Agent  by  the  Borrowers),  that  reflects  the  amount  of  dilution of  such  Borrower’s  Accounts  expressed  as  a  percentage  of  gross  sales  for  the  applicable  twelve-month measurement period.         “Disposition ” has the meaning assigned to such term in Section 6.05 .         “Disqualified   Equity   Interest ” means, with respect to any Person, any Equity Interest  in  such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:         (a)   matures or is mandatorily redeemable (other than solely  for  Equity  Interests  in  such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;         (b)   is  or  becomes  convertible  or  exchangeable,  either mandatorily  or  at  the  option  of  the holder thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or        (c)    is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required                                            13





 






to be repurchased by the Company or any Subsidiary, in whole or in part, at the option of the holder thereof;  in each case, on or prior to the date that is ninety one (91) days after the Maturity Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests outstanding on the Effective Date, the Effective Date); provided , however , that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” (or similar event, however denominated) shall not constitute a Disqualified Equity Interest if any such requirement  becomes  operative  only  after  repayment in  full  of  all  the  Loans  and  all  other  Secured Obligations that are accrued and payable, the cancellation or expiration of all Letters of Credit and the termination or expiration of the Commitments and (ii) an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall not constitute a Disqualified Equity Interest solely because  it  may  be  required  to  be  repurchased  by  such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.         “Disqualified  Lenders ” means (a) entities that have been specifically identified by the Company to the Administrative Agent in writing prior to October 2, 2016, or after October 2, 2016 and prior to November 8,  2016  with  the  reasonable  consent  of  the  Lead  Arranger,  (b) entities  that  are  reasonably determined  by  the  Company  to  be  competitors  of  the Company  or  its  subsidiaries  (including  Grand Design and its subsidiaries) and which are specifically identified by the Company to the Administrative Agent in writing prior to November 8, 2016 and (c) in the case of the foregoing clauses (a)  and (b) , any of such entities’ Affiliates to the extent such Affiliates (x)(i) are clearly identifiable as Affiliates of such entities based solely on the similarity of such Affiliates’ and such entities’ names and (ii) are not bona fide debt investment funds or (y)(i) upon reasonable notice to the Administrative Agent after the Effective Date, are identified as Affiliates in writing after the Effective Date in a written supplement to the list of “Disqualified  Lenders ”, which supplement shall become effective three (3) Business Days after delivery to the Administrative Agent and the Lenders, but which shall not apply retroactively to disqualify any parties that have previously acquired an assignment or participation interest in the Loans and (ii) are not bona fide debt investment funds. It is understood and agreed that (i) any supplement to the list of Persons that are Disqualified Lenders contemplated by the foregoing clause  (c)  shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans (but solely with respect to such Loans), (ii) the Administrative  Agent  shall  have  no  responsibility  or liability to determine or monitor whether any Lender or potential Lender is a Disqualified Lender, (iii) the Company’s  failure  to  deliver  such  list  (or  supplement  thereto)  in  accordance  with  Section 9.01   shall render  such  list  (or  supplement)  not  received  and  not  effective  and  (iv)  “Disqualified   Lender ”  shall exclude  any  Person that the Company has designated as  no  longer  being  a  “Disqualified   Lender ”  by written notice delivered to the Administrative Agent from time to time in accordance with Section 9.01.         “Dividing Person ” has the meaning assigned to it in the definition of “Division. ”         “Division ”  means  the  division  of  the  assets,  liabilities  and/or  obligations  of  a  Person  (the “Dividing   Person ”) among two or more Persons (whether pursuant to a  “plan  of  division”  or  similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.        “Division  Successor ” means any Person that, upon the consummation of a Division of a Dividing Person,  holds  all  or  any  portion  of  the  assets,  liabilities  and/or  obligations  previously  held  by  such Dividing  Person  immediately  prior  to  the  consummation  of  such  Division.  A  Dividing  Person  which                                             14





 






retains  any  of  its  assets,  liabilities  and/or  obligations  after  a  Division  shall  be  deemed  a  Division Successor upon the occurrence of such Division.         “Document ” has the meaning assigned to such term in the Security Agreement.         “Dollars ” or “$” refers to lawful money of the United States of America.         “Domestic  Foreign  Holdco  Subsidiary ” means any Domestic Subsidiary substantially all of the assets of which consist of the Equity Interests (or  Equity  Interests  and  Indebtedness)  of  one  or  more CFCs.        “Domestic  Subsidiary ” means a Subsidiary organized under the laws of a jurisdiction located in the United States of America.         “DQ List ” has the meaning assigned to such term in Section 9.04(e)(iv) .         “ECP ” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange  Act  or  any  regulations  promulgated  thereunder  and  the  applicable  rules  issued  by  the Commodity Futures Trading Commission and/or the SEC.        “EEA  Financial  Institution ” means (a) any institution 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 institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a)  or (b)  of this definition and is subject to consolidated supervision with its parent.         “EEA   Member   Country ”  means  any  of  the  member  states  of  the  European  Union,  Iceland, Liechtenstein, and Norway.         “EEA  Resolution  Authority ” means any public administrative authority or any Person entrusted with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having responsibility for the resolution of any EEA Financial Institution.         “Effective  Date ” means the date on which the conditions specified in Section 4.01  are satisfied (or waived in accordance with Section 9.02 ).         “Electronic  Signature ” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.         “Electronic  System ” means any electronic system, including e-mail, e-fax, web portal access for any Borrower, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and the Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.        “Eligible  Accounts ” means, at any time, the Accounts of any Borrower which the Administrative Agent determines in its Permitted Discretion are eligible as the basis for the extension of Revolving Loans and Swingline Loans and the issuance of Letters of Credit. Without limiting the Administrative Agent’s discretion provided herein, Eligible Accounts shall not include any Account of a Borrower:                                             15





 






       (a)   other than to the extent a Reserve is established pursuant  to  clause   (b) ,  which  is  not subject to a first priority perfected security interest in favor of the Administrative Agent;        (b)    which is subject to any Lien, unless (i) such Lien constitutes (x) a Lien in favor of the Administrative Agent, (y) a Permitted Encumbrance which does not have priority over the Lien in favor of the Administrative Agent or (z) a Lien permitted under Section 6.02(a)(ii)  or (ii) the Administrative Agent shall have established a Reserve in its Permitted Discretion for liabilities of such Borrower that are secured by such Lien;         (c)   (i) which is unpaid more than ninety (90) days after  the  date  of  the  original  invoice therefor or more than sixty (60) days after the original due date therefor (“Overage ”) (when calculating the amount under this clause  (i) , for the same Account Debtor, the Administrative Agent shall include the net amount of such Overage and add back any credits, but only to the extent that such credits do not exceed the total gross receivables from such Account Debtor), or (ii) which has been written off the books of such Borrower or otherwise designated as uncollectible;         (d)   which is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor and its Affiliates are ineligible under clause (c)  above;         (e)   which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing  from  such  Account  Debtor  and  its  Affiliates  to  the  Borrowers  exceeds  20%  or  such  greater percentage as the Administrative Agent may determine from time to time in its Permitted Discretion of the aggregate amount of Eligible Accounts of all Borrowers (but will only be ineligible to the extent of such excess);         (f)   with respect to which any covenant, representation or warranty contained in any Loan Document has been breached or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality qualifier, has been breached or is not true in any respect);         (g)   which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation reasonably satisfactory to the Administrative Agent which has been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent upon such Borrower’s completion of any further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment or cash-on-delivery basis (other  than  general  product  warranties  given  in  the  ordinary  course  of  business)  or  (vi) relates  to payments of interest (but only to the extent thereof);        (h)    for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by such Borrower or if such Account was invoiced more than once;        (i)    with respect to which any check or other instrument  of  payment  has  been  returned uncollected for any reason;         (j)   which is owed by an Account Debtor which has (i) applied for, suffered, or consented to the appointment of any receiver, custodian, trustee, administrative receiver, administrator, compulsory manager, liquidator or other similar officer of its assets, (ii) had possession of all or a material part of its property  taken  by  any  receiver,  custodian,  trustee,  administrative  receiver,  administrator,  compulsory manager, liquidator or other similar officer, (iii) filed, or had filed against it, any request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt, administration, winding-up, or voluntary or involuntary case under any Federal, state or foreign bankruptcy, insolvency,                                            16





 






receivership or similar law, (iv) admitted in writing its inability, or is generally unable to, pay its debts as they become due or has had a moratorium declared in respect of it, (v) become insolvent, or (vi) ceased operation of its business (other than, in any such case,  post-petition  accounts  payable  of  an  Account Debtor that is a debtor-in-possession under the United States Bankruptcy Code and reasonably acceptable to the Administrative Agent);         (k)   which is owed by any Account Debtor which has sold all or substantially all of its assets;         (l)   which is owed by an Account Debtor which (i) does not  maintain  its  chief  executive office in the U.S. or Canada or (ii) is not organized under applicable laws of the U.S., any state of the U.S., Canada or any province of Canada, unless, in any such case, such Account is backed by a letter of credit or bank guarantee reasonably acceptable to the Administrative Agent;         (m)   which is owed in any currency other than U.S. dollars or Canadian Dollars;         (n)   which is owed by (i) any Governmental Authority of any country other than Canada (or any province or territory thereof) or the U.S. unless such Account is backed by a letter of credit or bank guarantee reasonably acceptable to the Administrative Agent or (ii) any Governmental Authority of the U.S.,  or  any  department,  agency,  public  corporation,  or  instrumentality  thereof,  unless  the  Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien of the Administrative Agent in such Account have been complied with to the Administrative Agent’s satisfaction;         (o)   which is owed by any Affiliate of any Loan Party or any employee, officer, or director of any Loan Party or any of its Affiliates;         (p)   which is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Loan Party is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;         (q)   which is subject to any counterclaim, deduction, defense, setoff or dispute, but only to the extent of any such counterclaim, deduction, defense, setoff or dispute;         (r)   which is evidenced by any promissory note, chattel paper or instrument;         (s)   which is owed by an Account Debtor (i) located in any State of the U.S. which requires filing of a “Notice  of  Business  Activities  Report ” or other similar report in order to permit such Borrower to seek judicial enforcement in such jurisdiction of payment of such Account, unless such Borrower has filed such report or qualified to do business in such jurisdiction (or may do so at a later date without material penalty or prejudice and without affecting the collectability of such Account) or (ii) which is a Sanctioned Person;        (t)    with respect to which such Borrower has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business (but  only  to  the  extent  of  any  such  reduction),  or any  Account  which  was  partially  paid  and  such Borrower created a new receivable for the unpaid portion of such Account;        (u)    which does not comply in all material respects with the requirements of all applicable laws and regulations, whether Federal, state, foreign, provincial or local, including without limitation the                                             17





 






Federal  Consumer  Credit  Protection  Act,  the  Federal  Truth  in  Lending  Act  and  Regulation Z  of  the Board;         (v)   unless  the  Administrative  Agent has established a Reserve in its Permitted Discretion, which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any Person other than such Borrower has or has had an ownership interest in such goods (including but not limited to by way of retention of title), or which indicates any party other than such Borrower as payee or remittance party;        (w)    which was created on cash on delivery terms; or        (x)    which is subject to any limitation on assignment or other restriction (whether arising by operation of law, by agreement or otherwise) which would under the local governing law of the contract have the effect of restricting the assignment for or by way of security or the creation of security, in each case, unless the Administrative Agent has determined that such limitation is not enforceable.        In the event that an Account of a Borrower which was previously an Eligible Account ceases to be  an  Eligible  Account  hereunder,  such  Borrower  or the  Borrower  Representative  shall  notify  the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Aggregate  Borrowing  Base  Certificate  and  the  Borrowing  Base  Certificate  of  such  Borrower.  In determining the amount of an Eligible Account of a Borrower, the face amount of an Account may, in the Administrative Agent’s Permitted Discretion, be reduced by, without duplication and to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending,  promotional  program  allowances,  price  adjustments,  finance  charges  or  other  allowances (including any amount that such Borrower may be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by such Borrower to reduce the amount of such Account. Notwithstanding the foregoing, the eligibility criteria for “Eligible Accounts” may not be made more restrictive or newly established after the Effective Date (i) without at least three (3) Business Days’ prior notice to the Borrower Representative and (ii) in response to circumstances or events in existence on the Effective Date and disclosed to the Administrative Agent prior to the Effective Date (including under any field examinations or appraisals conducted prior to the Effective Date); provided  that, the foregoing limitation in clause  (ii)  shall not apply in the event of a material change in the scope or magnitude of any such circumstances or events.         “Eligible Inventory ” means, at any time, the Inventory of any Borrower which the Administrative Agent determines in its Permitted Discretion is eligible as the basis for the extension of Revolving Loans and Swingline Loans and the issuance of Letters of Credit. Without limiting the Administrative Agent’s discretion provided herein, Eligible Inventory of a Borrower shall not include any Inventory:        (a)    other than to the extent a Reserve is established pursuant  to  clause   (b) ,  which  is  not subject to a first priority perfected security interest in favor of the Administrative Agent;        (b)    which is subject to any Lien, unless (i) such Lien constitutes (x) a Lien in favor of the Administrative Agent, (y) a Permitted Encumbrance which does not have priority over the Lien in favor of the Administrative Agent or (z) a Lien permitted under Section 6.02(a)(ii)  or (ii) the Administrative Agent shall have established a Reserve in its Permitted Discretion for liabilities of such Borrower that are secured by such Lien;                                             18





 






       (c)   which is, in the Administrative Agent’s Permitted Discretion,  slow  moving,  obsolete, unmerchantable, defective, used, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category and/or quantity;        (d)    with respect to which any covenant, representation or warranty contained in any Loan Document has been breached or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality qualifier, has been breached or is not true in any  respect)  and  which  does  not  conform  to  all  applicable  standards  imposed  by  any  Governmental Authority;        (e)    in  which  any  Person  other  than  such  Borrower  shall  (i) have  any  direct  or  indirect ownership, interest or title (including, without limitation, any interest that a customer may have in any chassis included in such Inventory that were acquired by such customer using financing provided by any Loan Party) or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;        (f)    which  constitutes  work-in-process  (other  than  U16 Inventory),  spare  or  replacement parts,  subassemblies,  packaging  and  shipping  material,  manufacturing  supplies,  samples,  prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return (unless undamaged and able to be resold in the ordinary course of business), repossessed goods, repurchased goods, defective or damaged goods, goods held by such Borrower on consignment, or goods which are not of a type held for sale in the ordinary course of business; provided  that up to $70,000,000 of  work-in-process  Inventory  (other  than  U16  Inventory)  of  the  Borrowers  that  otherwise  constitutes “Eligible  Inventory”  may  be  included  as  Eligible  Inventory  (such  Inventory  (subject  to  such  cap), “Eligible Non-U16 Inventory ”) despite the foregoing provisions of this clause (f);        (g)    which is not located in the U.S. (including any territory thereof) or Canada or in transit with a common carrier from vendors and suppliers, provided  that, up to $7,500,000 of Inventory in transit from vendors and suppliers may be included as Eligible Inventory despite the foregoing provision of this clause (g)  so long as:               (i)    the Administrative Agent shall have received (1) a true and correct copy of the       bill of lading and other shipping documents for such Inventory and (2) evidence of satisfactory       casualty insurance naming the Administrative Agent as lender loss payee and otherwise covering       such risks as the Administrative Agent may reasonably request,               (ii)   if the bill of lading is non-negotiable, the Inventory must be in transit within the       U.S., and the Administrative Agent shall have received, if requested, a duly executed Collateral       Access  Agreement,  in  form  and  substance  satisfactory  to  the  Administrative  Agent,  from  the       applicable customs broker, freight forwarder or carrier for such Inventory,               (iii)  if the bill of lading is negotiable, the Inventory must be in transit from outside the       U.S., and the Administrative Agent shall have received (1) confirmation that the bill is issued in       the  name  of  such  Borrower  and  consigned  to  the  order  of  the  Administrative  Agent,  and  an       acceptable  agreement  has  been  executed  with  such  Borrower’s  customs  broker,  in  which  the       customs broker agrees that it holds the negotiable bill as agent for the Administrative Agent and       has  granted  the  Administrative  Agent  access  to  the Inventory,  (2)  confirmation  that  such       Borrower has paid for the goods, and (3) an estimate from such Borrower of the customs duties       and customs fees associated with the Inventory in order to establish an appropriate Reserve,               (iv)   the common carrier is not an Affiliate of the applicable vendor or supplier, and                                            19





 






             (v)    the customs broker is not an Affiliate of such Borrower;         (h)   which  is  located  in  any  location  leased  by  such  Borrower  unless  (i)  the  lessor  has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Reserve for rent, charges and  other  amounts  due  or  to  become  due  with  respect  to  such  facility  has  been  established  by  the Administrative Agent in its Permitted Discretion;         (i)   which is located in any third party warehouse or is in the possession of a bailee (other than a third party processor) and is not evidenced by a Document, unless (i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as  the  Administrative  Agent  may  require  or  (ii) an appropriate  Reserve  has  been  established  by  the Administrative Agent in its Permitted Discretion;         (j)   which is being processed offsite at a third party location  or  outside  processor,  or  is in-transit to or from such third party location or outside processor, unless (i) such processor has delivered to  the  Administrative  Agent  a  Collateral  Access  Agreement  and  such  other  documentation  as  the Administrative  Agent  may  require  or  (ii)  an  appropriate  Reserve  has  been  established  by  the Administrative Agent in its Permitted Discretion;         (k)   which is a discontinued product or component thereof (unless such discontinuance does not adversely impact the salability of the remaining Inventory);         (l)   which is the subject of a consignment by such Borrower  as  consignor;  provided   that, consigned  Inventory  may  be  eligible  if  the  applicable  consignee  has  delivered  to  the  Administrative Agent a Collateral Access Agreement and such other documentation and the Administrative Agent may reasonably require;        (m)    which contains or bears any intellectual property rights licensed to such Borrower unless the  Administrative  Agent  is  satisfied  that  it  may  sell  or  otherwise  dispose  of  such  Inventory  without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement;        (n)    which is not reflected in a current perpetual inventory report of such Borrower (unless such inventory (i) is reflected in a report to the Administrative Agent as “in transit” inventory or (ii) constitutes Eligible Non-U16 Inventory); provided  that, notwithstanding the foregoing provisions of this clause  (n) , up to $20,000,000 of Inventory of the Borrowers not reflected in a current perpetual inventory report,  which  $20,000,000  limitation  shall  not  apply  to  Eligible  Non-U16  Inventory  or  “in-transit” inventory, and otherwise constituting “Eligible  Inventory ” may be included as Eligible Inventory (such Inventory (subject to such cap), “Eligible Non-Perpetual Inventory ”);         (o)   for which reclamation rights have been asserted by the seller;         (p)   for which any contract or related documentation (such as invoices or purchase orders) relating to such Inventory includes retention of title rights in favor of the vendor or supplier thereof; provided  that, Inventory of a Borrower which may be subject to any rights of retention of title shall not be excluded  from  Eligible  Inventory  solely  pursuant  to  this  clause   (p)   in  the  event  that  (A)  the Administrative Agent shall have received evidence satisfactory to it that the full purchase price of such Inventory has or will have been paid or (B) a Letter of Credit has been issued under and in accordance with the terms of this Agreement for the purchase of such Inventory;                                             20





 






       (q)   which has been acquired from a Sanctioned Person; or         (r)   other than to the extent permitted by the Administrative Agent in its Permitted Discretion, which constitutes raw materials of Winnebago of Indiana.         In the event that Inventory of any Borrower which was previously Eligible Inventory ceases to be Eligible  Inventory  hereunder,  such  Borrower  or  the Borrower  Representative  shall  notify  the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Aggregate  Borrowing  Base  Certificate  and  the  Borrowing  Base  Certificate  of  such  Borrower. Notwithstanding the foregoing, the eligibility criteria for “Eligible Inventory” may not be made more restrictive or newly established after the Effective Date (i) without at least three (3) Business Days’ prior notice to the Borrower Representative and (ii) in response to circumstances or events in existence on the Effective Date and disclosed to the Administrative Agent prior to the Effective Date (including under any field  examinations  or  appraisals  conducted  prior  to  the  Effective  Date);  provided   that,  the  foregoing limitation in clause  (ii)  shall not apply in the event of a material change in the scope or magnitude of any such circumstances or events.         “Eligible  Non-Perpetual  Inventory ” has the meaning assigned to such term in clause  (n)  of the definition of “Eligible Inventory”.         “Eligible   Non-U16   Inventory ”  has  the  meaning  assigned  to  such  term  in  clause   (f)   of  the definition of “Eligible Inventory”.         “Environmental   Laws ”  means  all  laws,  rules,  regulations,  codes,  ordinances,  orders,  decrees, judgments,  injunctions,  notices  or  binding  agreements  issued,  promulgated  or  entered  into  by  any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources,  the  management,  release  or  threatened  release  of  any  Hazardous  Material  or  to  health  and safety matters.         “Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the  generation,  use,  handling,  transportation, storage,  treatment  or  disposal  of  any  Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.         “Equipment ” has the meaning assigned to such term in the Security Agreement.         “Equity  Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing.        “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 Company, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.                                            21





 






       “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) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate  any  Plan  or  Plans  or  to  appoint  a  trustee  to  administer  any  Plan;  (f) the  incurrence  by  the Company  or  any  of  its  ERISA  Affiliates  of  any  liability  with  respect  to  the  withdrawal  or  partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan  from  the  Company  or  any  ERISA  Affiliate  of  any  notice,  concerning  the  imposition  upon  the Company or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan  is,  or  is  expected  to  be,  insolvent,  in  critical  status  or  in  reorganization,  within  the  meaning of Title IV of ERISA.        “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 ” when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.         “Event of Default ” has the meaning assigned to such term in Article VII .         “Excess   Grand   Design   Borrowing   Base ”  means,  at  any  time,  the  excess,  if  any,  of  (a)  Grand Design’s Borrowing Base at such time over (b) the aggregate Grand Design Revolving Exposures of all Lenders at such time.         “Excess  Newmar  Borrowing  Base”  means,  at  any  time,  the  excess,  if  any,  of  (a)  Newmar’s Borrowing  Base  at  such  time  over  (b)  the  aggregate  Newmar  Revolving  Exposures  of  all  Lenders  at such time.         “Excess   Winnebago   of   Indiana   Borrowing   Base ”  means,  at  any  time,  the  excess,  if  any,  of (a) Winnebago of Indiana’s Borrowing Base at such time over (b) the aggregate Winnebago of Indiana Revolving Exposures of all Lenders at such time.         “Excluded  Accounts ” means, collectively, (a) payroll accounts, trust accounts, employee benefit accounts  and  zero-balance  disbursement  accounts  (that  are  not  collection  accounts)  and  (b) deposit accounts that have balances of no more than $250,000 individually or $1,000,000 in the aggregate for any period of thirty (30) consecutive days.        “Excluded Assets ” means, collectively:         (a)   any  fee-owned  real property that does not constitute  Material  Real  Property  and  all leasehold interests in real property;        (b)    any  “intent-to-use”  application  for  registration  of  a  trademark  filed  pursuant  to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d)  of  the  Lanham  Act  or  an  “Amendment  to Allege  Use”  pursuant  to  Section 1(c)  of  the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in                                            22





 






which,  the  grant  of  a  security  interest  therein  would  impair  the  validity  or  enforceability  of  any registration that issues from such intent-to-use application under applicable federal law;         (c)   assets  in  respect  of  which  pledges  and  security  interests  are  prohibited  by  applicable U.S. law, rule or regulation or agreements with any U.S. governmental authority (other than to the extent that such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law); provided that, immediately upon the ineffectiveness, lapse or termination of any such prohibitions, such assets shall automatically cease to constitute Excluded Assets;         (d)   margin stock (within the meaning of Regulation U issued by the Board);         (e)   Equity Interests in any entity other than wholly-owned Material Subsidiaries and, to the extent not requiring the consent of one or more unaffiliated third parties or prohibited by the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement, other Material Subsidiaries and joint ventures;        (f)    letter of credit rights with a value of less than $5,000,000 (other than to the extent the security interest in such letter of credit right may be perfected by the filing of UCC financing statements) and commercial tort claims with a value of less than $5,000,000;         (g)   any lease, license, capital lease obligation or other agreement or any property subject to a purchase money security interest, similar agreement or other contractual restriction to the extent that a grant of a security interest therein would violate or invalidate such lease, license, capital lease obligation or  agreement  or  purchase  money  arrangement  or  other  contraction  restriction  or  create  a  right  of termination in favor of any other party thereto (other than a Loan Party) (other than (x) proceeds and receivables  thereof,  the  assignment  of  which  is  expressly  deemed  effective  under  the  UCC notwithstanding such prohibition, (y) to the extent that any such term has been waived or (z) to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law); provided  that, immediately  upon  the  ineffectiveness,  lapse  or  termination  of  any  such  term,  such  assets  shall automatically cease to constitute Excluded Assets;         (h)   any foreign assets (including foreign intellectual  property)  (other  than  pledges  of  the Applicable Pledge Percentage of the issued and outstanding Equity Interests in any First Tier Foreign Subsidiary which is a Material Foreign Subsidiary as contemplated by this Agreement) or credit support;         (i)   those assets as to which the Administrative Agent and the Company reasonably agree that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby;        (j)    any aircrafts and aircraft engines; and        (k)    Excluded Accounts.  Notwithstanding the foregoing, “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets).        “Excluded  Domestic  Subsidiary ” means (a) any Domestic Subsidiary whose Equity Interests are owned directly or indirectly by a CFC and (b) any Domestic Foreign Holdco Subsidiary.                                             23





 






       “Excluded  Foreign  Subsidiary ” means a Foreign Subsidiary which is (a) a CFC or (b) a direct or indirect Foreign Subsidiary owned by a CFC or Domestic Foreign Holdco Subsidiary.         “Excluded   Swap   Obligation ”  means,  with  respect  to  any  Loan  Party,  any  Specified  Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or the grant of such security interest becomes effective with respect to such Specified Swap Obligation. If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.         “Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political  subdivision  thereof)  or  (ii) that  are  Other  Connection  Taxes,  (b) in  the  case  of  a  Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant to an assignment request by any Borrower under Section 2.19(b) ) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17 , amounts with respect  to  such  Taxes  were  payable  either  to  such  Lender’s  assignor  immediately  before  such  Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender immediately before  it  changed  its  lending  office,  (c) Taxes  attributable  to such Recipient’s failure to comply with Section 2.17(f)  and (d) any U.S. Federal withholding Taxes imposed under FATCA.         “Extenuating   Circumstance ”  means  any  period  during  which  the  Administrative Agent  has determined  in  its  sole  discretion  (a)  that  due  to  unforeseen  and/or  nonrecurring  circumstances,  it  is impractical and/or not feasible to submit or receive a Borrowing Request or Interest Election Request by email or fax or through Electronic System, and (b) to accept a Borrowing Request or Interest Election Request telephonically.         “FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted  pursuant  to  any  intergovernmental  agreement,  treaty  or  convention  among  Governmental Authorities and implementing such Sections of the Code.         “FCCR Test Period ” means any period (a) commencing on the last day of the most recently ended Test Period on or prior to the date Aggregate Availability is less than the greater of $16,500,000 and 10% of the Aggregate Commitment at any time and (b) ending on the day after Aggregate Availability has exceeded the greater of $16,500,000 and 10% of the Aggregate Commitment for thirty (30) consecutive days.        “Federal  Funds  Effective  Rate ” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary  institutions  (as  determined  in  such  manner  as  the                                            24





 






NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business  Day  by  the  NYFRB  as  the  effective  federal funds  rate,  provided   that,  if  the  Federal  Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.         “Federal  Reserve  Board ” means the Board of Governors of the Federal Reserve System of the United States of America.         “Final Release Conditions ” has the meaning assigned to such term in Section 9.19(c) .        “Financial   Officer ”  means  the  chief  financial  officer,  principal  accounting officer, treasurer or controller of the Company.         “First Lien Net Leverage Ratio ” means, as of any date of determination, the ratio of (a) an amount equal  to  (i)  Consolidated  Total  Secured  Indebtedness,  but  excluding  any  secured  indebtedness  to  the extent the Liens with respect thereto are subordinated to the Liens securing the Secured Obligations or the Term Loan Obligations, as of the last day of the most recent Test Period on or prior to such date of determination  minus   (ii)  the  aggregate  amount  of  unrestricted  and  unencumbered  cash  and  Permitted Investments included in the consolidated balance sheet of the Company and its Subsidiaries as of such date, which aggregate amount shall be determined without giving pro forma effect to the proceeds of Indebtedness incurred on such date to (ii) Consolidated EBITDA of the Company and its Subsidiaries for such Test Period.         “First  Tier  Foreign  Subsidiary ” means each Foreign Subsidiary with respect to which any one or more  of  the  Company  and  its  Domestic  Subsidiaries  directly  owns  more  than  50%  of  such  Foreign Subsidiary’s issued and outstanding Equity Interests.         “Fixed  Charge  Coverage  Ratio ” means, for any period, the ratio of (a) Consolidated EBITDA minus  Capital Expenditures (other than Capital Expenditures (i) financed with Indebtedness (other than Revolving  Loans),  (ii)  made  to  restore,  replace  or rebuild  assets  subject  to  casualty  or  condemnation events to the extent made with the cash proceeds of insurance or condemnation awards, (iii) to the extent made with the cash proceeds of permitted asset dispositions and/or (iv) constituting capital assets acquired in a Permitted Acquisition) to (b) Fixed Charges, all calculated for the Company and its Subsidiaries on a consolidated basis in accordance with GAAP.         “Fixed   Charges ”  means,  for  any  period,  without  duplication,  (a)  cash  Consolidated  Interest Expense plus  (b) to the extent positive, expenses for income taxes paid in cash plus  (c) scheduled cash principal  payments  made  on  Indebtedness  for  borrowed  money  plus   (d)  cash  dividends  paid  by  the Company, plus  (e) cash contributions to any Plan (to the extent not accounted for in the calculation of Consolidated EBITDA), all calculated for the Company and its Subsidiaries (except as provided in clause (d) )  on  a  consolidated  basis  in  accordance  with  GAAP; provided   that,  for  purposes  of  determining satisfaction  of  the  Payment  Condition,  “Fixed  Charges”  shall  also include, without duplication (i) all Restricted Payments paid in cash by the Company and its Subsidiaries on a consolidated basis during such period pursuant to Section 6.09(g)  and (ii) cash payments of earn-out obligations.         “Flood Laws ” has the meaning assigned to such term in Article VIII .         “Foreign Lender ” means (a) if the applicable Borrower is a U.S. Person, a Lender, with respect to such  Borrower,  that  is  not  a  U.S. Person,  and  (b) if  the  applicable  Borrower  is  not  a  U.S. Person,  a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.                                            25





 






       “Foreign Subsidiary ” means any Subsidiary which is not a Domestic Subsidiary.        “Funding Account ” has the meaning assigned to such term in Section 4.01(f) .         “GAAP ” means generally accepted accounting principles in the United States of America.        “Governmental   Authority ” means the government of the United States of America,  any  other nation  or  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.         “Grand Design ” means Grand Design RV, LLC, an Indiana limited liability company.         “Grand Design Revolving Exposures ” means, with respect to any Lender at any time, and without duplication, the sum of (a) the outstanding principal amount of the Revolving Loans made by such Lender to Grand Design at such time plus  (b) such Lender’s LC Exposure with respect to Letters of Credit issued for the account of Grand Design at such time plus  (c) such Lender’s Swingline Exposure with respect to Swingline  Loans  made  to  Grand  Design  at  such  time  plus   (d)  an  amount  equal  to  its  Applicable Percentage of the aggregate principal amount of outstanding Protective Advances made to Grand Design at such time plus  (e) an amount equal to its Applicable Percentage of the aggregate principal amount of outstanding Protective Advances Overadvances  made to Grand Design at such time.         “Grand  Design  Utilization ” means, at any time, the excess, if any, of (a) the aggregate Grand Design Revolving Exposures of all Lenders over (b) the Grand Design Borrowing Base.         “Guarantee ” of or by any Person (the “guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation 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 other obligation or to purchase (or to advance or  supply  funds  for  the  purchase  of)  any  security  for  the  payment  thereof,  (b) to  purchase  or  lease property,  securities  or  services  for  the  purpose  of  assuring  the  owner  of  such  Indebtedness  or  other obligation of the payment thereof, (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 other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.         “Hazardous  Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.         “Hostile   Acquisition ”  means  (a) the  acquisition  of  the  Equity  Interests  of  a  Person  through  a tender offer or similar solicitation of the owners of such Equity Interests which has not been approved (prior to such acquisition) by the board of directors (or any other applicable governing body) of such Person or by similar action if such Person is not a corporation and (b) any such acquisition as to which such approval has been withdrawn.         “IBA ” has the meaning assigned to such term in Section 1.06 .                                             26





 






       “Impacted   Interest   Period ”  has  the  meaning  assigned  to  such  term  in  the  definition  of  “LIBO Rate ”.          “Incremental  Term  Loan  Amount ” means, at any time, an amount of Indebtedness such that, as of  the  most  recently  completed  Test  Period  ending  prior  to  the  date  of  the  incurrence  of  such Indebtedness, after giving pro forma effect to such incurrence and such acquisition in accordance with Section 1.04(b), the First Lien Net Leverage Ratio calculated is less than or equal to 2.50 to 1.00.         “Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments,  (c) all  obligations  of  such  Person  upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person  in  respect  of  the  deferred  purchase  price  of  property  or  services  (excluding  current  accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has  been  assumed,  (g) all  Guarantees  by  such  Person  of  Indebtedness  of  others,  (h) all  Capital  Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) obligations of such Person under Sale and Leaseback Transactions (other than such obligations constituting operating lease obligations). 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.  Notwithstanding  the  foregoing,  the  term “Indebtedness” shall not include (i) purchase price adjustments, earnouts, holdbacks or deferred payments of  a  similar  nature  (including  deferred  compensation  representing  consideration  or  other  contingent obligations incurred in connection with an acquisition), except in each case to the extent that such amount payable is, or becomes, reasonably determinable and contingencies have been resolved or such amount would  otherwise  be  required  to  be  reflected  on  a  balance  sheet  prepared  in  accordance  with  GAAP; (ii) current accounts payable incurred in the ordinary course of business; (iii) obligations in respect of non-competes  and  similar  agreements;  (iv)  Swap  Obligations;  (v)  Banking  Services  Obligations;  (vi) licenses  and  operating  leases;  or  (vii)  Permitted  Call  Spread  Swap  Agreements,  and  any  obligations thereunder.         “Indemnified  Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) , Other Taxes.        “Indemnitee ” has the meaning assigned to such term in Section 9.03(b) .         “Ineligible Institution ” has the meaning assigned to such term in Section 9.04(b) .         “Information ” has the meaning assigned to such term in Section 9.12 .         “Intercreditor  Agreement ” means (a) in respect of the Term Loan Facility, the ABL/Term Loan Intercreditor Agreement (b) in respect of any other Indebtedness intended to be secured by some or all of the Collateral on a pari passu basis with the Obligations, an intercreditor agreement reasonably acceptable to  the  Administrative  Agent,  the  terms  of  which  are  consistent  with  market  terms  governing  security arrangements for the sharing of Liens on a pari passu basis at the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such Liens, as reasonably                                            27





 






determined by the Administrative Agent and the Borrower Representative and (c) in respect of any other Indebtedness intended to be secured by some or all of the Collateral on a junior priority basis with the Obligations, an intercreditor agreement reasonably acceptable to the Administrative Agent the terms of which are consistent with market terms governing security arrangements for the sharing of Liens on a junior basis at the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such Liens, as reasonably determined by the Administrative Agent and the Borrower Representative.        “Interest   Election   Request ”  means  a  request  by  the  Borrower  Representative  to  convert  or continue a Revolving Borrowing in accordance with Section 2.08 .         “Interest  Payment  Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), the first Business Day of January, April, July and October and the Maturity Date and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date of the Facility under which such Eurodollar Loan was made.        “Interest Period ” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower Representative may elect; provided , that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.         “Interpolated  Rate ” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time. Notwithstanding the foregoing, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.         “Inventory ” has the meaning assigned to such term in the Security Agreement.         “Investment ” means, with respect to a specified Person, (a) any direct or indirect acquisition of or investment  by  such  Person  in  any  Equity  Interests, evidences  of  Indebtedness  or  other  securities (including  any  option,  warrant  or  other  right  to  acquire  any  of  the  foregoing)  of,  or  any  capital contribution or loans or advances (other than advances made in the ordinary course of business that would be recorded as accounts receivable on the balance sheet of the specified Person prepared in accordance with GAAP) to, Guarantees of any Indebtedness or other obligations of, or any other investment in, any other Person that are held or made by the specified Person and (b) the purchase or acquisition (in one transaction or a series of related transactions) of all or substantially all the property and assets or business of another Person or assets constituting a business unit, line of business, division or product line of such                                            28





 






other Person. The amount, as of any date of determination, of (i) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date (excluding any portion thereof representing  paid-in-kind  interest  or  principal  accretion),  without  any  adjustment  for  write-downs  or write-offs  (including  as  a  result  of  forgiveness  of  any  portion  thereof)  with  respect  to  such  loan  or advance after the date thereof, (ii) any Investment in the form of a Guarantee shall be determined in accordance with the definition of the term “Guarantee”, (iii) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair value (as determined reasonably and in good faith by the Company in accordance with GAAP) of such Equity Interests or other property as of the time of the transfer, minus  any payments actually received in cash, or other property that has been converted into cash or is readily marketable for cash, by such specified Person representing a return of capital of, or dividends or other distributions in respect of, such Investment, but without any adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such transfer, (iv) any Investment (other than any Investment referred to in clause  (i) , (ii)  or (iii) above) by the specified Person in the form of a purchase or other acquisition for value of any Equity Interests, evidences of Indebtedness, other securities or assets of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus  the cost of all additions, as of such date, thereto, and minus  the amount, as of such date, of any portion of such Investment repaid to the investor in cash as a repayment of principal or a return of capital, and of any payments or other amounts actually received by such investor representing dividends, returns, interest, profits, distributions, income or similar amount, in respect of such Investment, as the case may be, but without  any  other  adjustment  for  increases  or  decreases  in  value  of,  or  write-ups,  write-downs  or write-offs with respect to, such Investment after the date of such Investment, and (v) any Investment (other than any Investment referred to in clause  (i) , (ii), (iii) or (iv) above) by the specified Person in any other Person resulting from the issuance by such other Person of its Equity Interests to the specified Person shall be the fair value (as determined reasonably and in good faith by a Financial Officer of the Company) of such Equity Interests at the time of the issuance thereof. For purposes of Section 6.04 , if an Investment involves the acquisition of more than one Person, the amount of such Investment shall be allocated  among  the  acquired  Persons  in  accordance with  GAAP;  provided   that  pending  the  final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer of the Company.         “IRS ” means the United States Internal Revenue Service.         “Issuing  Bank ” means, individually and collectively, each of JPMCB, in its capacity as the issuer of  Letters  of  Credit  hereunder,  and  any  other  Lender  from  time  to  time  designated  by  the  Borrower Representative as an Issuing Bank, with the consent of such Lender and the Administrative Agent, and their respective successors in such capacity as provided in Section 2.06(i) . Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it  being  agreed  that  such  Issuing  Bank  shall,  or  shall  cause  such  Affiliate  to,  comply  with  the requirements of Section 2.06  with respect to such Letters of Credit). At any time there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.        “Issuing  Bank  Sublimits ” means, as of the Effective Date, (i) in the case of JPMCB, $5,000,000 and (ii) in the case of any other Issuing Bank, such amount as shall be designated to the Administrative Agent and the Borrower Representative in writing by such Issuing Bank; provided  that, any Issuing Bank shall be permitted at any time, with the consent of the Borrower Representative and the Administrative                                             29





 






Agent, to increase or reduce its Issuing Bank Sublimit in its discretion (it being understood and agreed that any such increase may be limited to the issuance of a particular Letter of Credit).        “Joinder Agreement ” means a Joinder Agreement in substantially the form of Exhibit E .         “JPMCB ” means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.         “LC Collateral Account ” has the meaning assigned to such term in Section 2.06(j) .         “LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.         “LC Exposure ” means, at any time, the sum of the Commercial LC Exposure and the Standby LC Exposure at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.         “Lead  Arranger ” means JPMorgan Chase Bank, N.A. in its capacity as the sole lead arranger and bookrunner for the credit facility evidenced by this Agreement.        “Lease   Deficiency   Obligation ”  means  after  default,  repossession  and  disposition  of  the Equipment which is the subject of or which secures a Lease Financing, the amount, if any, by which (i) any and all obligations of the Loan Parties or their Subsidiaries to a Lessor, arising, evidenced or acquired  (including  all  renewals,  extensions  and  modifications  thereof  and  substitutions  therefor)  in connection with a specific Lease Financing, exceeds (ii) the Net Proceeds realized by the Lessor upon the disposition of the Equipment which is the subject of or which secures the specific Lease Financing.         “Lease  Financing ” means (i) a lease of specific Equipment as defined in Article 2-A of the UCC, and (ii) a secured financing transaction secured by specific Equipment, whether that transaction is called a lease or a loan, entered into by any Loan Party or its Subsidiaries with any Lender or any of its Affiliates (in this context, the “Lessor ”).         “Lender   Parent ”  means,  with  respect  to  any  Lender,  any  Person  as to  which  such  Lender  is, directly or indirectly, a subsidiary.         “Lenders ” means the Persons listed on the Commitment Schedule and any other Person that shall have  become  a  Lender  hereunder  pursuant  to  Section 2.09   or  Assignment  and  Assumption  or  other documentation contemplated hereby, other than any such Person that ceases to be a party hereto pursuant to  an  Assignment  and  Assumption  or  other  documentation  contemplated  hereby.  Unless  the  context otherwise requires, the term “Lenders” includes the Swingline Lender and each Issuing Bank.         “Lessor ” has the meaning assigned to such term in the definition of “Lease Financing”.         “Letter of Credit ” means any letter of credit issued pursuant to this Agreement.         “Letter of Credit Agreement ” has the meaning assigned to it in Section 2.06(b).         “LIBO  Rate ” means, with respect to any Eurodollar Borrowing for any applicable Interest Period or  for  any  ABR  Borrowing,  the  London  interbank  offered  rate  as  administered  by  ICE  Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other  information  service  that  publishes  such  rate from  time  to  time  as  shall  be  selected  by  the                                            30





 






Administrative  Agent  in  its  reasonable  discretion, in  each  case  (the  “LIBO   Screen   Rate ”)  at approximately  11:00  a.m.,  London  time,  two  (2) Business  Days  prior  to  the  commencement  of  such Interest  Period;  provided  that, (x) if the LIBO Screen Rate shall be less than  zero,  such  rate  shall  be deemed to be zero for the purposes of this Agreement and (y) if the LIBO Screen Rate shall not be available at such time for a period equal in length to such Interest Period (an “Impacted  Interest  Period ”), then the LIBO Rate shall be the Interpolated Rate at such time, subject to Section 2.14  in the event that the Administrative Agent shall conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error); provided  further , that, if any Interpolated  Rate  shall  be  less  than  zero,  such  rate  shall  be  deemed  to  be  zero  for  purposes  of  this Agreement. Notwithstanding the above, to the extent that “LIBO  Rate ” or “Adjusted  LIBO  Rate ” is used in connection with an ABR Borrowing, such rate shall be determined as modified by the definition of Alternate Base Rate.         “LIBO Screen Rate ” has the meaning assigned to such term in the definition of “LIBO Rate”.         “Lien ”  means,  with  respect  to  any  asset,  (a) any  mortgage,  deed  of  trust,  lien,  pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (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  and  (c) in  the  case  of  securities,  any  purchase option, call or similar right of a third party with respect to such securities.        “Loan  Borrowing  Option ” has the meaning assigned to such term in the DDA Access Product Agreement.        “Loan   Documents ”  means,  collectively,  this  Agreement,  the  Collateral  Documents,  the  Loan Guaranty,  the  Intercreditor  Agreements,  any  promissory  notes  executed  and  delivered  pursuant  to Section 2.10(e) ,  any  Letter  of  Credit  applications  and  any  agreements  between  the  Borrower Representative and the Issuing Bank regarding the Issuing Bank’s Issuing Bank Sublimit or the respective rights and obligations between any Borrower and the Issuing Bank in connection with the issuance of Letters of Credit, and any and all other instruments and documents executed and delivered in connection with any of the foregoing.         “Loan Guarantor ” means each Loan Party.         “Loan Guaranty ” means Article X  of this Agreement.         “Loan   Parties ”  means,  collectively,  the  Borrowers,  the  Company’s  Material  Domestic Subsidiaries  and  any  other  Person  who  becomes  a  party  to  this  Agreement  pursuant  to  a  Joinder Agreement and their successors and assigns, and the term “Loan Party” shall mean any one of them or all of them individually, as the context may require.         “Loans ”  means  the  loans  and  advances  made  by  the  Lenders pursuant  to  this  Agreement, including Swingline Loans, Overadvances and Protective Advances.        “Margin   Stock ”  means  margin  stock  within  the  meaning  of  Regulations  T,  U  and  X,  as applicable.         “Material  Adverse  Effect ” means a material adverse effect on (a) the business, assets, operations, or financial condition of the Company and the Subsidiaries taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform any of their respective payment obligations under this Agreement,                                            31





 






(c)  the  validity  or  enforceability  of  this  Agreement  or  any  and  all  other  Loan Documents, or (d) the material rights or remedies of the Administrative Agent or the Lenders under the Loan Documents.        “Material   Domestic   Subsidiary ”  means  each  Domestic  Subsidiary  (other  than  an  Excluded Domestic Subsidiary) that constitutes a Material Subsidiary.        “Material   Foreign   Subsidiary ”  means  each  Foreign  Subsidiary  that  constitutes  a Material Subsidiary.         “Material  Indebtedness ” means any Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Company and its Subsidiaries  in  an  aggregate  principal  amount  exceeding  $15,000,000.  For  purposes  of  determining Material Indebtedness, the “principal amount” of the obligations of the Company or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting  agreements)  that  the  Company  or  such  Subsidiary  would  be  required  to  pay  if  such  Swap Agreement were terminated at such time.         “Material  Real  Property ” means real property located in the United States with a book value (as reflected  in  the  financial  statements  delivered  pursuant  to  Section 5.01(a)   or  5.01(b)   (or,  prior  to  the delivery of any such financial statements, the financial statements referred to in Section 3.04 )) of more than $7,500,000 that is owned by the Company or any Domestic Subsidiary that is a Loan Party.         “Material  Subsidiary ” means each Subsidiary (i) which, as of the most recent fiscal quarter of the Company  during  the  Test  Period,  contributed  greater  than  five  percent  (5%) of  the  Company’s Consolidated  EBITDA  for  such  period  or  (ii) which  contributed  greater  than  five  percent  (5%) of Consolidated  Total  Assets  as  of  such  date;  provided  that,  if  at  any  time  the  aggregate  amount  of Consolidated EBITDA or Consolidated Total Assets attributable to all Subsidiaries that are not Material Subsidiaries  exceeds  twenty  percent  (20%) of  Consolidated  EBITDA  for  any  such  period  or  twenty percent (20%) of Consolidated Total Assets as of the end of any such fiscal quarter, the Company (or, in the event the Company has failed to do so within ten days, the Administrative Agent) shall designate sufficient  Subsidiaries  as  “Material  Subsidiaries” to  eliminate  such  excess,  and  such  designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries.         “Maturity  Date ” means the earliest to occur of (i) October 22, 2024, (ii) the date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof, (iii) the date that is  ninety-one (91) days prior to the maturity date of  the  Term  Loan  Facility,  if  any  Term  Loans  are outstanding on such date, (iv) the date that is ninety-one (91) days prior to the earliest maturity date of any outstanding Incremental Equivalent Debt (as defined in the Term Loan Agreement as of the date hereof), if any Incremental Equivalent Debt is outstanding on such date and (v) the date that is ninety-one (91)  days  prior  to  the  earliest  maturity  date  of  any  outstanding  Permitted  Convertible  Notes,  if  any Permitted Convertible Notes are outstanding on such date; provided  further  that, in each case, if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.         “Maximum Rate ” has the meaning assigned to such term in Section 9.17 .         “MNPI ”  means  material  information  concerning  the  Company  and  the  Subsidiaries  and  their securities that has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the Securities Act and the Securities Exchange Act of 1934.         “Moody’s ” means Moody’s Investors Service, Inc.                                             32





 






       “Monthly   Reporting   Period ”  means  any  period  of  time  commencing  on  any  day  that  the Aggregate Revolving Exposure (other than the aggregate LC Exposure) has exceeded $50,000,000 for more  than  five  (5)  consecutive  days  and  continuing until  such  subsequent  day,  if  any,  on  which  the Aggregate Revolving Exposure (other than the aggregate LC Exposure) has not exceeded $0 for more than sixty (60) consecutive days.         “Mortgage ” means each mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Secured Parties,  on  real  property  of  a  Loan  Party,  including  any  amendment,  restatement,  modification  or supplement thereto; provided  that no Mortgage shall contain any defaults other than by reference to the defaults set forth in this Agreement; and further provided, in the event the Mortgage shall be recorded in a jurisdiction  which  charges  mortgage  recording  taxes,  intangible  taxes  or  documentary  taxes  or  other similar  taxes  and/or  charges,  such  Mortgage  shall  only  secure  such  an  amount  not  to  exceed  the  fair market value (as reasonably determined by Borrower Representative and as reasonably acceptable to the Administrative Agent) of the Material Real Property secured by such Mortgage.         “Mortgage  Instruments ” means with respect to any Material Real Property for which a Mortgage is being recorded, (a) such title reports and ALTA title insurance policies (or unconditional commitment to  issue  such  policy  or  policies)  reasonably  acceptable  to  Administrative  Agent,  in  an  amount  not  to exceed  110%  of  the  fair market value (as reasonably acceptable to the Administrative Agent) of such Material  Real  Property  (with  endorsements  reasonably  requested  by  Administrative  Agent  and  as  are available in the applicable jurisdiction) and with all premiums fully paid, (b) either (i) an ALTA survey reasonably acceptable to Administrative Agent or (ii) previously obtained ALTA survey and affidavits of “no-change”  with  respect  to  each  such  survey,  such survey and affidavit to be in form and substance reasonably acceptable to the Administrative Agent and to be sufficient to issue title insurance policies to the Administrative Agent providing all reasonably required  survey  coverage and survey endorsements and zoning endorsements, (c) acquisition of FEMA standard life-of-loan flood hazard determinations for such Material Real Property, and if any building located on such Material Real Property is determined to be in a special hazard area, delivery of (i) a notice with respect to such flood insurance and (ii) evidence of flood insurance, (d) a local counsel opinion as to the enforceability of each Mortgage in the state in which the Material Real Property described in such Mortgage is located and other matters customarily covered  in  real  estate  enforceability  opinions  in  form  and  substance  reasonably  acceptable  to Administrative  Agent,  except   with  respect  to  the  Material  Real  Property  located  in  Oregon,  written confirmation from local counsel that is in form and substance reasonably acceptable to Administrative Agent that such Mortgage Instrument satisfies the basic requirements for amending a deed of trust under Oregon law and is suitable for recording, (e) mortgage tax affidavits and declarations and other similar information and related certifications that are required in the jurisdiction in which a Mortgage is being filed in order to permit such filing and such affidavits and certificates as are required to issue the title insurance  policies,  provided,  appraisals  shall  not be  required  to  be  delivered  in  connection  with  any Mortgage (in each case, other than such documentation already in the possession of any Loan Party) and (f)  environmental  assessments  and  reports  and  zoning  reports  in  form  and  substance  reasonably acceptable to the Administrative Agent.         “Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.         “Net   Orderly   Liquidation   Value ” means, with respect to Inventory of any Person, the  orderly liquidation value thereof as determined in a manner reasonably acceptable to the Administrative Agent by an appraiser acceptable to the Administrative Agent, net of all costs of liquidation thereof.         “Newmar” means Newmar Corporation, an Indiana corporation.                                             33





 






       “Newmar   Revolving   Exposures”   means,   with   respect   to   any   Lender   at   any   time,   and without  duplication,  the  sum  of  (a)  the  outstanding  principal  amount  of  the  Revolving  Loans  made by such Lender to Newmar at such time plus (b) such Lender’s LC Exposure with respect to Letters of  Credit  issued  for  the  account  of  Newmar  at  such  time  plus  (c)  such  Lender’s  Swingline  Exposure with   respect   to   Swingline   Loans   made   to   Newmar   at   such   time   plus   (d)   an   amount   equal   to   its Applicable  Percentage  of  the  aggregate  principal  amount  of  outstanding  Protective  Advances  made to   Newmar   at   such   time   plus   (e)   an   amount   equal   to   its   Applicable   Percentage   of   the  aggregate principal amount of outstanding Overadvances made to Newmar at such time.         “Newmar  Utilization”  means,  at  any  time,  the  excess,  if  any,  of  (a)  the  aggregate  Newmar Revolving Exposures of all Lenders over (b) the Newmar Borrowing Base.         “Non-Consenting Lender ” has the meaning assigned to such term in Section 9.02(e) .         “NYFRB ” means the Federal Reserve Bank of New York.         “NYFRB  Rate ” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business  Day,  for  the  immediately  preceding  Business  Day);  provided   that  if  none  of  such  rates  are published for any day that is a Business Day, the term “NYFRB  Rate ” means the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided , further , that if any of the aforesaid  rates  shall  be  less  than  zero,  such  rate shall  be  deemed  to  be  zero  for  purposes  of  this Agreement.        “Obligated Party ” has the meaning assigned to such term in Section 10.02 .        “Obligations ” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure,  all  accrued  and  unpaid  fees  and  all  expenses,  reimbursements,  indemnities  and  other obligations  and  indebtedness  (including  interest  and  fees  accruing  during  the  pendency  of  any bankruptcy,  insolvency,  receivership  or  other  similar  proceeding,  regardless  of  whether  allowed  or allowable in such proceeding), obligations and liabilities of any of the Loan Parties to any of the Lenders, the  Administrative  Agent  any  Issuing  Bank  or  any  indemnified  party,  individually  or  collectively, existing  on  the  Effective  Date  or  arising  thereafter,  direct  or  indirect,  joint  or  several,  absolute  or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation  of  law  or  otherwise,  arising  or  incurred under  this  Agreement  or  any  of  the  other  Loan Documents or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof.         “OFAC ” means the Office of Foreign Assets Control of the U.S. Department of Treasury.         “Other  Connection  Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document).         “Other  Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing  or  similar  Taxes  that  arise  from  any  payment  made  under,  from  the  execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or                                            34





 






otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19 ).         “Overadvance ” has the meaning assigned to such term in Section 2.05(b) .        “Overnight  Bank  Funding  Rate ” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.        “Participant ” has the meaning set forth in Section 9.04 .         “Participant Register ” has the meaning set forth in Section 9.04(c) .         “Patriot   Act ”  means  the  USA  PATRIOT  Act  (Title  III  of  Pub.  L.  107-56  (signed  into  law October 26, 2001)).         “Payment   Condition ”  means,  with  respect  to  any  proposed  designated  action  on  any  date,  a condition that is satisfied if (a) after giving effect to such proposed designated action as if it occurred on the first day of the applicable Pro Forma Period, the pro forma Aggregate Availability shall be greater than the greater of $33,000,000 and 20% of the Aggregate  Commitment  at  all  times  during  such  Pro Forma Period or (b) both (i) after giving effect to such proposed designated action as if it occurred on the first day of such Pro Forma Period, the pro forma Aggregate Availability shall be greater than the greater of $24,750,000 and 15% of the Aggregate Commitment at all times during such Pro Forma Period and (ii) the Fixed Charge Coverage Ratio, computed on a pro forma basis for the period of four consecutive fiscal quarters ending on the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01 , shall be greater than 1.10 to 1.00.        “PBGC  ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.         “Permitted  Acquisition ” means any Acquisition by any Loan Party or Subsidiary in a transaction that satisfies each of the following requirements:         (a)   such Acquisition is not a Hostile Acquisition;         (b)   such Person or division or line of business is engaged in the same or a similar line of business  as  the  Company  or  any  of  its  Subsidiaries or  any  business  activities  reasonably  related  or ancillary thereto;        (c)    no Default exists at the time of such Acquisition or would result therefrom;        (d)    if such Acquisition constitutes a Material Acquisition,  the  Administrative  Agent  shall have received a description of the material terms of such Acquisition and the audited financial statements (or,  if  unavailable,  management-prepared  financial statements)  of  such  Person  or  division  or  line  of business of such Person for its two most recently ended fiscal years and for any fiscal quarters ended within the fiscal year to-date for which such financial statements are available;        (e)    if such Acquisition involves a merger, amalgamation  or  a  consolidation  involving  the Company or any other Loan Party, the Company or a Loan Party, as applicable, shall be the surviving entity in compliance with Section 6.03  (subject to any grace periods specified in Section 5.14 ); and                                            35





 






       (f)   the Company shall have delivered to the Administrative Agent final executed material documentation relating to such Acquisition promptly after request therefor by the Administrative Agent.        “Permitted  Call  Spread  Swap  Agreements ” means (a) any Swap Agreement (including, but not limited  to,  any  bond  hedge  transaction  or  capped  call  transaction)  pursuant  to  which  the  Company acquires an option requiring the counterparty thereto to deliver to the Company shares of common stock of the Company (or other securities or property following a merger event or other change of the common stock of the Company), the cash value thereof or a combination thereof from time to time upon exercise of such option entered into by the Company in connection with the issuance of Permitted Convertible Notes (such transaction, a “Bond  Hedge  Transaction ”) and (b) any Swap Agreement pursuant to which the Company issues to the counterparty thereto warrants to acquire common stock of the Company (or other  securities  or  property  following  a  merger  event  or  other  change  of  the  common  stock  of  the Company) (whether such warrant is settled in shares, cash or a combination thereof) entered into by the Company in connection with the issuance of Permitted Convertible Notes (such transaction, a “Warrant Transaction ”); provided  that (i) the terms, conditions and covenants of each such Swap Agreement shall be acceptable to the Administrative Agent in its Permitted Discretion), (ii) the purchase price for such Bond Hedge Transaction, less the proceeds received by the Company from the sale of any related Warrant Transaction, does not exceed the net proceeds received by the Company from the issuance of the related Permitted Convertible Notes and (iii) in the case of clause  (b)  above, such Swap Agreement would be classified as an equity instrument in accordance with GAAP.        “Permitted   Convertible   Notes ”  means  any  unsecured  notes  issued  by  the  Company  that  are convertible into a fixed number (subject to customary anti-dilution adjustments, “make-whole” increases and other customary changes thereto) of shares of common stock of the Company (or other securities or property following a merger event or other change of the common stock of the Company), cash or any combination thereof (with the amount of such cash or such combination determined by reference to the market price of such common stock or such other securities); provided  that, the Indebtedness thereunder must  satisfy  each  of  the  following  conditions:  (i) both  immediately  prior  to  and  after  giving  effect (including pro forma effect) thereto, no Default or Event of Default shall exist or result therefrom, (ii) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled or otherwise required payments of principal prior to, and does not permit any Loan Party to elect optional redemption or optional acceleration that would be settled on a date prior to, the date that is ninety-one (91) days after the Maturity Date (it being understood that neither (x) any provision requiring an offer to purchase such Indebtedness as a result of change of control or other fundamental change nor (y) any early conversion of any Permitted Convertible Notes in accordance with the terms thereof, in either case, shall violate  the  foregoing  restriction),  (iii)  such  Indebtedness  is  not  guaranteed  by  any  Subsidiary  of  the Company  other  than  a  Loan  Party  (which  guarantees, if  such  Indebtedness  is  subordinated,  shall  be expressly subordinated to the Secured Obligations on terms not less favorable to the Lenders than the subordination terms of such Subordinated Indebtedness) and (iv) the terms, conditions and covenants of such Indebtedness must be customary for convertible Indebtedness of such type (as determined by the board of directors of the Company, or a committee thereof, in good faith).         “Permitted   Discretion ”  means  a  determination  made  in  good  faith  and  in  the  exercise  of reasonable (from the perspective of a secured asset-based lender) business judgment.         “Permitted Encumbrances ” means:         (a)   Liens imposed by law for Taxes that are not yet delinquent  or  are  being  contested  in compliance with Section 5.04 ;                                             36





 






       (b)   carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than sixty (60) days or are being contested in compliance with Section 5.04 ;         (c)   (i) pledges and deposits made in the ordinary course  of  business  in  compliance  with workers’  compensation,  unemployment  insurance  and  other  social  security  laws  or  regulations  and (ii) pledges  and  deposits  in  the  ordinary  course  of  business  securing  liability  for  reimbursement  or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Company or any Subsidiary;        (d)    deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety,  stay,  customs  and  appeal  bonds,  performance  bonds  and  other  obligations  of  a  like  nature (including (i) those to secure health, safety and environmental obligations and (ii) letters of credit and bank guarantees required or requested by any Governmental Authority in connection with any contract or law), in each case in the ordinary course of business;        (e)    judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k)  of Article VII ;         (f)   matters of record affecting title to any real or leased property and any survey exceptions, encroachments, rights of parties in possession under written leases or occupancy agreements, title defects, easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or  arising  in  the  ordinary  course  of  business  that do  not  secure  any  monetary  obligations  that  are substantial in amount and do not materially detract from the value of the affected property or interfere in any material respect with the ordinary conduct of business of the Company or any Subsidiary;         (g)   Liens in favor of a banking or other financial institution arising as a matter of law or in the ordinary course of business under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;        (h)    Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;        (i)    Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens  attaching  to  commodity  trading  accounts  or  other  brokerage  accounts  incurred  in  the  ordinary course of business and not for speculative purposes;        (j)    (i) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business  that  do  not  (A) interfere  in  any  material respect  with  the  business  of  the  Company  and  its Subsidiaries, taken as a whole or (B) secure any Indebtedness or (ii) the rights reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit held by the Company or any of its Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;                                             37





 






       (k)   ground leases or subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Company or any Subsidiary are located;         (l)   (i) zoning,  building,  entitlement  and  other  land  use  regulations  by  Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries, taken as a whole;        (m)    Liens arising from precautionary UCC financing statement or similar filings;        (n)    licenses, sublicenses and cross-licenses of Intellectual Property in the ordinary course of business; and        (o)    any interest or title of a lessor, sublessor, lessee or sublessee under any lease in existence on the day hereof or permitted by this Agreement and the Collateral Documents.        “Permitted Investments ” means:         (a)   direct  obligations  of,  or  obligations  the  principal  of  and  interest  on  which  are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;         (b)   investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;         (c)   investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic  office  of  any  commercial  bank  organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;         (d)   fully collateralized repurchase agreements with a term of not more than thirty (30) days for  securities  described  in  clause (a)  above and entered into with a financial institution  satisfying  the criteria described in clause (c)  above;         (e)   money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment  Company  Act  of  1940,  (ii) are  rated  AAA by  S&P  and  Aaa  by  Moody’s  and  (iii) have portfolio assets of at least $5,000,000,000;        (f)    other  investments  made  in  accordance  with  the  Company’s  investment  policy  as disclosed  to  the  Administrative  Agent  prior  to  the Effective  Date  and  with  such  amendments  or modifications thereto as are from time to time approved by the Administrative Agent;         (g)   investments in Indebtedness that is (x) issued by Persons  with  (i)  a  short  term  credit rating of “P-1 ” or higher from Moody’s or “A-1 ” or higher from S&P or (ii) a long term rating of “A2 ” or higher from Moody’s or “A” or higher from S&P, in each case for clauses  (i)  and (ii)  with maturities not more  than  twelve  (12)  months  after  the  date  of  acquisition  and  (y)  of  a  type  customarily  used  by companies for cash management purposes;                                             38





 






       (h)   securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, by any political subdivision  or  taxing  authority  of  any  such  state, commonwealth  or  territory  or  by  any  foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) receive at least (i) a short term credit rating of “P-1 ” or higher from Moody’s or “A-1 ” or higher from S&P or (ii) a long term rating of “A2 ” or higher from Moody’s or “A” or higher from S&P;        (i)    investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (a)  through (h)  above;         (j)   securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any  commercial  bank  satisfying  the  requirements  of clause (c)  above; and         (k)   in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.         “Permitted  Unsecured  Indebtedness ” means Indebtedness of the Company or any Subsidiary (a) that is not (and any Guarantees thereof by the Company or Subsidiaries are not) secured by any collateral (including the Collateral), (b) that does not mature earlier than the date that is ninety-one (91) days after the Maturity Date, and has a Weighted Average Life to Maturity no shorter than the Maturity Date in effect at the time of incurrence of such Indebtedness, (c) that, in the case of such Indebtedness in the form of  bonds,  debentures,  notes  or  similar  instrument, does  not  provide  for  any  amortization,  mandatory prepayment,  redemption  or  repurchase  (other  than  upon  a  change  of  control,  fundamental  change, customary asset sale or event of loss mandatory offers to purchase and customary acceleration rights after an  event  of  default  and,  for  the  avoidance  of  doubt,  rights  to  convert  or  exchange  in  the  case  of convertible or exchangeable Indebtedness) prior to the Maturity Date, (d) that contains covenants, events of  default,  guarantees  and  other  terms  that  are  customary  for  similar  Indebtedness  in  light  of then-prevailing  market  conditions  (it  being  understood  and  agreed  that  such  Indebtedness  shall  not include  any  financial  maintenance  covenants  and  that  applicable  negative  covenants  shall  be incurrence-based to the extent customary for similar Indebtedness) and, when taken as a whole (other than interest rates, rate floors, fees and optional prepayment or redemption terms), are not more favorable (as reasonably  determined  by  the  Company  in  good  faith)  to  the  lenders  or  investors  providing  such Permitted Unsecured Indebtedness, as the case may be, than those set forth in the Loan Documents are with respect to the Lenders (other than covenants or other provisions applicable only to periods after the Maturity  Date);  provided   that  a  certificate  of  a  Financial  Officer  of  the  Company  delivered  to  the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness or the modification, refinancing, refunding, renewal or extension thereof (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a reasonably detailed description of the material  terms  and  conditions  of  such  resulting  Indebtedness  or  drafts  of  the  material  definitive documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirements shall be conclusive, and (e) that is not guaranteed by any Person other than on an unsecured basis by the Company and/or Subsidiaries that are Loan Parties.        “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 Code or Section 302 of ERISA, and in respect of                                            39





 






which  the  Company  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.        “Plan  Asset  Regulations ” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.         “Platform ”  means  Debt  Domain,  Intralinks,  Syndtrak  or  a  substantially  similar  electronic transmission system.         “Pledge   Subsidiary ”  means  (i) each  Domestic  Subsidiary  and  (ii) each First  Tier  Foreign Subsidiary which is a Material Subsidiary.         “Prime   Rate ” means the rate of interest last quoted by The Wall  Street  Journal  as  the  “Prime Rate ” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.        “Pro   Forma   Period ”  means  the  period  commencing  thirty  (30)  days  prior  to  the  date  of  any proposed designated action and ending on the date of such proposed designated action.         “Projections ” has the meaning assigned to such term in Section 3.11 .         “Protective Advance ” has the meaning assigned to such term in Section 2.04 .         “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.        “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).         “QFC Credit Support ” has the meaning assigned to it in Section 9.23 .        “Qualified   Equity   Interests ”  means  Equity  Interests  of  the  Company  other  than Disqualified Equity Interests.         “Qualified  ECP  Guarantor ” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes  an  “eligible  contract  participant”  under  the  Commodity  Exchange  Act  or  any  regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.        “Recipient ”  means,  as  applicable,  (a) the  Administrative  Agent,  (b) any  Lender  and  (c) any Issuing Bank, or any combination thereof (as the context requires).         “Refinancing Convertible Notes ” has the meaning assigned to such term in Section 6.09 .        “Refinancing  Indebtedness ” means, in respect of any Indebtedness (the “Original  Indebtedness ”), any  Indebtedness  that  extends,  renews  or  refinances  such  Original  Indebtedness  (or  any  Refinancing Indebtedness in respect thereof); provided  that (a) the principal amount (or accreted value, if applicable)                                            40





 






of such Refinancing Indebtedness shall not exceed the principal amount (or accreted value, if applicable) of such Original Indebtedness except by an amount no  greater  than  accrued  and  unpaid  interest  with respect to such Original Indebtedness and any reasonable fees, premium and expenses relating to such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness; (c) such Refinancing Indebtedness shall not be required to be  repaid,  prepaid,  redeemed,  repurchased  or  defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a change in control, fundamental change, or upon conversion or exchange in the case of convertible or exchangeable Indebtedness or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to (i) if such Refinancing Indebtedness is secured on a pari passu basis with the Revolving Loans, the maturity of such Original Indebtedness or (ii) otherwise, the date that is ninety  one  (91)  days  after  the  Maturity  Date;  (d)  the  Weighted  Average  Life  to  Maturity  of  such Refinancing Indebtedness shall be longer than the Weighted Average Life to Maturity of such Original Indebtedness remaining as of the date of such extension, renewal or refinancing; (e) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Subsidiary, in each  case  that  shall  not  have  been  (or,  in  the  case of after-acquired Subsidiaries, shall not have been required to become pursuant to the terms of the Original  Indebtedness)  an  obligor  in  respect  of  such Original Indebtedness, and shall not constitute an obligation of any Borrower if such Borrower shall not have been  an  obligor  in  respect  of  such  Original  Indebtedness,  and,  in  each  case,  shall  constitute  an obligation of such Subsidiary or of such Borrower only to the extent of their obligations in respect of such Original Indebtedness; (f) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; (g) if secured by the Collateral on a junior lien basis or if unsecured, such  Refinancing  Indebtedness  does  not  provide  for any  amortization,  mandatory  prepayment, redemption or repurchase (other than upon a change of control, fundamental change, customary asset sale or event of loss mandatory offers to purchase and customary acceleration rights after an event of default and, for the avoidance of doubt, rights to convert or exchange in the case of convertible or exchangeable Indebtedness) prior to the latest maturity date of the Indebtedness being refinanced, (h) such Refinancing Indebtedness  does  not  contain  covenants,  events  of default  and  other  terms  customary  for  similar Indebtedness in light of then-prevailing market conditions that, when taken as a whole (other than interest rates, rate floors, fees and optional prepayment or redemption terms), are more favorable (as reasonably determined by the Borrower Representative in good faith) to the lenders, holders or investors, as the case may  be,  providing  such  Refinancing  Indebtedness  than  those  applicable  to  the  relevant  Original Indebtedness (provided  that a certificate of a Financial Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Refinancing Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Refinancing Indebtedness or drafts of the material definitive documentation relating thereto, stating that the Borrower Representative has determined in good faith that such terms and conditions satisfy the requirement of this clause (h) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower Representative within such five (5) Business Day period that it disagrees with  such  determination  (including  a  description  of  the  basis  upon  which  it  disagrees)),  and  (i)  such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to  the  terms  thereof)  or,  in  the  event  Liens  securing  such  Original  Indebtedness  shall  have  been contractually subordinated to any Lien securing the Obligations, by any Lien that shall not have been contractually subordinated to at least the same extent (and, if such Original Indebtedness is subject to an                                             41





 






Intercreditor Agreement, such Refinancing Indebtedness shall, if secured, be subject to an Intercreditor Agreement).         “Register ” has the meaning set forth in Section 9.04 .         “Regulation  D ” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.        “Regulation  T ” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.         “Regulation  U ” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.        “Regulation  X ” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.        “Related  Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates.         “Release ”  means  any  releasing,  spilling,  leaking,  pumping, pouring,  emitting,  emptying, discharging,  injecting,  escaping,  leaching,  migrating,  disposing  or  dumping  of  any  substance  into  the environment.         “Report ” means reports prepared by the Administrative Agent  or  another  Person  showing  the results  of  appraisals,  field  examinations  or  audits  pertaining  to  the  assets  of  the  Borrowers  from information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent.         “Repurchase   Agreements ”  means,  collectively,  repurchase  agreements,  by  and  among  one  or more Loan Parties and a financial institution that provides financing to a dealer who purchases vehicles from one or more Loan Parties, which repurchase agreements (i) provide that, in the event of default by a dealer  in  its  obligation  to  such  financial  institution, such Loan Party or Loan Parties will repurchase vehicles sold to the dealer that have not been purchased by customers and (ii) are entered into by the applicable Loan Parties in the ordinary course of business consistent with past practices (or are otherwise customarily entered into in the ordinary course of business generally by manufacturers of recreational vehicles).        “Required   Lenders ”  means,  subject  to  Section 2.20 ,  at  any  time,  Lenders  having  Revolving Exposures and unused Commitments representing at least 66 2/3% of the sum of the total Revolving Exposures and unused Commitments at such time; provided  that, at any time that there are two (2) or more Lenders, “Required  Lenders ” must include at least two (2) Lenders (that are not Affiliates of one another).         “Requirement  of  Law ” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, or other organizational or governing documents of such Person and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator  or  court  or  other  Governmental  Authority  (including  Environmental  Laws),  in  each  case                                             42





 






applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject         “Reserves ” means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, to maintain (including, without limitation, reserves for accrued and unpaid interest on  the  Secured  Obligations,  Banking  Services  Reserves,  Specified  Reserves,  Specified  Reporting Reserves, reserves for rent at locations leased by any Loan Party and for consignee’s, warehousemen’s and bailee’s charges, reserves for dilution of Accounts, reserves for Inventory shrinkage, reserves for customs charges and shipping charges related to any Inventory in transit, reserves for Swap Agreement Obligations, reserves for contingent liabilities of any Loan Party, reserves for uninsured losses of any Loan  Party,  reserves  for  uninsured,  underinsured,  un-indemnified  or  under-indemnified  liabilities  or potential  liabilities  with  respect  to  any  litigation  and  reserves  for  taxes,  fees,  assessments,  and  other governmental charges) with respect to the Collateral or any Loan Party; provided  that, notwithstanding the foregoing, (i) the Administrative Agent may not implement any new reserves or increase the amount of  any  existing  Reserves  without  at  least  three  (3)  Business  Days’  prior  notice  to  the  Borrower Representative and (ii) Reserves shall not be in duplication of eligibility criteria.         “Responsible   Officer ”  means  the  chief  executive  officer,  president,  a  Financial  Officer  or  a member of the senior management team of the Company or any other Person designated by any such Person in writing to the Administrative Agent and reasonably acceptable to the Administrative Agent.         “Restricted   Payment ” means any dividend or other distribution (whether  in  cash,  securities  or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of  the  purchase,  redemption,  retirement,  acquisition,  cancellation  or  termination  of  any  such  Equity Interests in the Company or any option, warrant or other right to acquire any such Equity Interests in the Company.         “REVLIBOR30   Rate ” means the London interbank offered rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a one (1) month period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that  publishes  such  rate  from  time  to  time  as  shall  be  selected  by  the  Administrative  Agent  in  its reasonable  discretion;  in  each  case,  the  “REVLIBOR30   Screen   Rate ”)  at  approximately  11:00  a.m., London time, two (2) Business Days prior to the first (1st) Business Day of each month, adjusted monthly on the first (1st) Business Day of each month; provided  that, (x) if the REVLIBOR30 Screen Rate shall be  less  than  zero,  such  rate  shall  be  deemed  to be zero for purposes of this Agreement and (y) if the REVLIBOR30 Screen Rate shall not be available at such time for such a period, then the REVLIBOR30 Rate shall be equal to the Alternate Base Rate.         “Revolving   Exposure ”  means,  with  respect  to  any  Lender  at  any  time,  the  sum  of  (a)  the outstanding  principal  amount  of  such  Lender’s  Revolving  Loans,  its  LC  Exposure  and  its  Swingline Exposure at such time plus  (b) an amount equal to its Applicable Percentage of the aggregate principal amount  of  Protective  Advances  outstanding  at  such  time  plus   (c)  an  amount  equal  to  its  Applicable Percentage of the aggregate principal amount of Overadvances outstanding at such time.         “Revolving Exposure Limitations ” has the meaning set forth in Section 2.01 .         “Revolving Loan ” means a Loan made pursuant to Section 2.01(a) .                                             43





 






       “Sale  and  Leaseback  Transaction ” means any sale or other transfer of any property or asset by any Person with the intent to lease such property or asset as lessee.         “S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.         “Sanctioned  Country ” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).        “Sanctioned   Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated  Persons  maintained  by  OFAC,  the  U.S. Department  of  State,  the  United  Nations  Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom  or  other  relevant  sanctions  authority,  (b) any  Person  operating,  organized  or  resident  in  a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a)  or (b)  or (d)  any Person otherwise the subject of any Sanctions.         “Sanctions ” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union  member  state,  Her  Majesty’s  Treasury  of  the  United  Kingdom  or  other  relevant  sanctions authority.         “SEC ” means the United States Securities and Exchange Commission.         “Secured  Obligations ” means all Obligations, together with all (i) Banking Services Obligations and  (ii)  Swap  Agreement  Obligations  owing  to  one  or  more  Lenders  or  their  respective  Affiliates; provided , however , that the definition of “Secured  Obligations ” shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor.         “Secured  Parties ” means (a) the Administrative Agent, (b) the Lenders, (c) the Issuing Bank, (d) each provider  of  Banking Services, to the extent the  Banking  Services  Obligations  in  respect  thereof constitute  Secured  Obligations,  (e)  each  counterparty  to  any  Swap  Agreement,  to  the  extent  the obligations  thereunder  constitute  Secured  Obligations,  (f)  the  beneficiaries  of  each  indemnification obligation undertaken by any Loan Party under any Loan Document, and (g) the successors and assigns of each of the foregoing.        “Securities Act ” means the United States Securities Act of 1933, as amended from time to time.        “Security   Agreement ”  means  the  Amended  and  Restated  Pledge  and  Security  Agreement (including any and all supplements thereto), dated as of the date hereof, between the Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, as the same may be amended, restated or otherwise modified from time to time.         “Settlement ” has the meaning assigned to such term in Section 2.05(d) .        “Settlement Date ” has the meaning assigned to such term in Section 2.05(d) .         “Specified  Reporting  Reserve ” means a Reserve established by the Administrative Agent during each fiscal quarter (the “current fiscal quarter”) of the Company (other than during a Monthly Reporting Period or Weekly Reporting Period) in an amount equal to $10,000,000 on the 45th day following the end                                            44





 






of the immediately preceding fiscal quarter (the “prior fiscal quarter”), which amount shall be increased to $20,000,000 on the 75th day following the end of the prior fiscal quarter and subsequently decreased to $0 upon the Administrative Agent’s receipt of an Aggregate Borrowing Base Certificate and a Borrowing Base Certificate for each Borrower for the current fiscal quarter.        “Specified   Reserves ”  means,  with  respect  to  any  Borrower,  Reserves  established  by  the Administrative Agent in its Permitted Discretion from time to time for (a) repurchase obligations of such Borrower,  (b)  warranty  obligations  of  such  Borrower,  (c)  accrued  sales  rebates  provided  by  such Borrower and (d) free on board (FOB) destination delivery terms provided by such Borrower.         “Specified  Swap  Obligation ” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.         “Standby  LC  Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all standby Letters of Credit outstanding at such time plus  (b) the aggregate amount of all LC Disbursements relating to standby Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers at such time. The Standby LC Exposure of any Lender at any time shall be its Applicable Percentage of the aggregate Standby LC Exposure at such time.         “Statements ” has the meaning assigned to such term in Section 2.18(g) .         “Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number  one  and  the  denominator  of  which  is  the  number  one  minus   the  aggregate  of  the  maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) established by the  Board  to  which  the  Administrative  Agent  is  subject with  respect  to  the  Adjusted  LIBO  Rate,  for eurocurrency funding (currently referred to as “Eurocurrency  Liabilities ” in Regulation D of the Board). Such  reserve  percentages  shall  include  those  imposed  pursuant  to  such  Regulation D  of  the  Board. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D of the Board or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.         “Subordinated   Indebtedness ”  means  any  Indebtedness  of  the  Company  or  any  Subsidiary  the payment of which is subordinated to payment of the obligations under the Loan Documents.         “Subordinated   Indebtedness   Documents ”  means  any  document,  agreement  or  instrument evidencing  any  Subordinated  Indebtedness  or  entered  into  in  connection  with  any  Subordinated Indebtedness.         “subsidiary ”  means,  with  respect  to  any  Person  (the  “parent”) at  any  date,  any  corporation, limited  liability  company,  partnership,  association  or  other  entity  the  accounts  of  which  would  be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited  liability  company,  partnership,  association  or  other  entity  (a) of  which  securities  or  other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.                                             45





 






       “Subsidiary ” means any subsidiary of the Company.         “Supported QFC ” has the meaning assigned to it in Section 9.23 .         “Swap  Agreement ” means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any  combination  of  these  transactions;  provided   that  no  phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrowers or the Subsidiaries shall be a Swap Agreement.         “Swap   Agreement   Obligations ”  means  any  and  all  obligations  of  the  Loan  Parties  and  their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or  acquired  (including  all  renewals,  extensions  and  modifications  thereof  and  substitutions  therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction permitted hereunder with a Lender or an Affiliate of a Lender.         “Swap  Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.         “Swingline   Exposure ”  means,  at  any  time,  the  sum  of  the  aggregate  principal  amount  of  all outstanding Swingline Loans. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the aggregate Swingline Exposure.         “Swingline  Lender ” means JPMCB, in its capacity as lender of Swingline Loans hereunder. Any consent required of the Administrative Agent or the Issuing Bank shall be deemed to be required of the Swingline Lender and any consent given by JPMCB in its capacity as Administrative Agent or Issuing Bank shall be deemed given by JPMCB in its capacity as Swingline Lender.         “Swingline Loan ” has the meaning assigned to such term in Section 2.05(a) .         “Syndication Agent ” means BMO Harris Bank N.A.         “Target Balance ” has the meaning assigned to such term in the DDA Access Product Agreement.         “Taxes ”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments,  fees  or  other  charges  imposed  by  any  Governmental  Authority,  including  any  interest, additions to tax or penalties applicable thereto.         “Term  Loan  Agent ” means JPMCB, in its capacity as administrative agent under the Term Loan Agreement (or any successor agent thereunder or under any replacement thereof).         “Term  Loans ” has the meaning assigned to it in the Term Loan Agreement (as in effect on the Effective Date).         “Term   Loan   Agreement ”  means  that  certain  Loan  Agreement,  dated  as  of  November 8,  2016, among Octavius Corporation, as borrower, the other Loan Parties from time to time party thereto, the Term Loan Agent and the lenders from time to time party thereto, as the same may be amended, restated,                                            46





 






supplemented or otherwise modified from time to time and as replaced or refinanced in whole or in part (whether with the same group of lenders or a different group of lenders) in accordance with the terms hereof and of the ABL/Term Loan Intercreditor Agreement.        “Term   Loan   Documents ”  means,  collectively,  the  Term  Loan  Agreement  and all  other agreements, instruments, documents and certificates executed and/or delivered in connection therewith, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and of the ABL/Term Loan Intercreditor Agreement.        “Term  Loan  Facility ” means the term loan facility incurred pursuant to the terms of the Term Loan Agreement.         “Term  Loan  Obligations ” means the Indebtedness and other obligations of the Company and its Subsidiaries under the Term Loan Documents.         “Test   Period ”  means,  for  any  date  of  determination  under  this  Agreement,  a  single  period consisting  of  the  most  recent  four  consecutive  fiscal  quarters  of  the  Company  for  which  financial statements  have  been  required  to  be  delivered  pursuant  to  Section 5.01(a)   or  Section 5.01(b) ,  as applicable (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a)  or (b) , the most recent financial statements referred to in Section 3.04(a)) .         “Total   Commitment   Utilization ”  means,  at  any  time,  a  percentage  equal  to  a  fraction  the numerator of which is the Aggregate Revolving Exposure at such time and the denominator of which is the Aggregate Commitment at such time.        “Total  Net  Leverage  Ratio ” means, as of any date of determination, the ratio of (a) an amount equal to (i) Consolidated Total Indebtedness as of the last day of the most recently ended Test Period minus   (ii)  the  aggregate  amount  of  unrestricted  and  unencumbered  cash  and  Permitted  Investments included  in  the  consolidated  balance  sheet  of  the  Company  and  its  Subsidiaries  as  of  such  date  of determination to (b) Consolidated EBITDA for such Test Period, all calculated for the Company and its Subsidiaries on a consolidated basis in accordance with GAAP.         “Transaction   Costs ”  means  any  fees  or  expenses  incurred  or  paid  by  the  Company  or  any Subsidiary in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.        “Transactions ”  means,  collectively,  (a)  the  execution,  delivery and  performance  by  the  Loan Parties of this Agreement, the borrowing of Loans, the use of the proceeds thereof and the granting of Liens by the Loan Parties under the Loan Documents, (b) the consummation of any other transactions in connection with the foregoing and (c) the payment of the fees and expenses incurred in connection with any of the foregoing.         “Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.         “UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.         “U16   Inventory ”  mean  work-in-process  Inventory  of  a  Borrower  constituting  near-complete finished units that are categorized as “U16 ” (or such other designation assigned to such near-complete                                            47





 






finished  units  with  notice  to  the  Administrative  Agent  after  completion  of  the  Company’s  ERP implementation)  in  accordance  with  the  Company’s  accounting  practices  in  the  ordinary  course  of business  consistent  with  past  practice  prior  to  the  Effective  Date  or  otherwise  acceptable  to  the Administrative Agent in its Permitted Discretion.         “Unliquidated  Obligations ” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.         “U.S. Person ” means a “United  States  person ” within the meaning of Section 7701(a)(30) of the Code.         “U.S. Special Resolution Regime ” has the meaning assigned to it in Section 9.23 .         “U.S. Tax   Compliance   Certificate ”  has  the  meaning  assigned  to  such  term  in Section 2.17(f)(ii)(B)(3) .         “USA  PATRIOT  Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.        “Warrant  Transaction ” has the meaning assigned to such term in the definition of “Permitted  Call Spread Swap Agreement ”.         “Weekly  Reporting  Period ” means any period of time (a) when an Event of Default has occurred and is continuing or (b) commencing on any day that the Aggregate Availability is less than the greater of $16,500,000 and 10% of the Aggregate Commitment and continuing until such subsequent date, if any, as when the Aggregate Availability has exceeded the greater  of  $16,500,000  and  10%  of  the Aggregate Commitment for thirty (30) consecutive days.        “Weighted  Average  Life  to  Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.         “Winnebago of Indiana ” means Winnebago of Indiana, LLC, an Iowa limited liability company.         “Winnebago  of  Indiana  Revolving  Exposures ” means, with respect to any Lender at any time, and without duplication, the sum of (a) the outstanding principal amount of the Revolving Loans made by such Lender to Winnebago of Indiana at such time plus  (b) such Lender’s LC Exposure with respect to Letters of Credit issued for the account of Winnebago of Indiana at such time plus  (c) such Lender’s Swingline Exposure with respect to Swingline Loans made to Winnebago of Indiana at such time plus  (d) an amount equal to its Applicable Percentage of the aggregate principal amount of outstanding Protective Advances  made  to  Winnebago  of  Indiana  at  such  time plus   (e)  an  amount  equal  to  its  Applicable Percentage of the aggregate principal amount of outstanding Protective  Advances Overadvances  made to Winnebago of Indiana at such time.                                             48





 






       “Winnebago  of  Indiana  Utilization ” means, at any time, the excess, if any, of (a) the aggregate Winnebago of Indiana Revolving Exposures of all Lenders over (b) the Borrowing Base of Winnebago of Indiana.        “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.        “Withholding Agent ” means any Loan Party or the Administrative Agent.         “Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation  for  the  applicable  EEA  Member  Country, which  write-down  and  conversion  powers  are described in the EU Bail-In Legislation Schedule.         SECTION 1.02. Classification of Loans and Borrowings . For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving  Loan ”) or by Type (e.g., a “Eurodollar Loan ”) or by Class and Type (e.g., a “Eurodollar  Revolving  Loan ”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving  Borrowing ”) or by Type (e.g., a “Eurodollar  Borrowing ”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing ”).        SECTION 1.03. Terms   Generally .  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”. The word “law” shall be construed as referring  to  all  statutes,  rules,  regulations,  codes  and  other  laws  (including  official  rulings  and interpretations thereunder having the force of law or with which affected Persons customarily comply), and  all  judgments,  orders  and  decrees,  of  all  Governmental  Authorities.  Unless  the  context  requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated,  supplemented  or  otherwise  modified  (subject  to  any  restrictions  on  such  amendments, restatements,  supplements  or  modifications  set  forth herein), (b) any definition of or reference to any statute,  rule  or  regulation  shall  be  construed  as  referring  thereto  as  from  time  to  time  amended, supplemented  or  otherwise  modified  (including  by  succession  of  comparable  successor  laws),  (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”,  “hereof”  and  “hereunder”,  and  words  of  similar  import,  shall  be  construed  to  refer  to  this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference in any definition to the phrase “at any time” or “for any period” shall refer to the same time or period for all calculations or determinations within such definition and (g) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.         SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations .         (a)   Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided  that, if the                                            49





 






Borrower Representative notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof,  then  such  provision  shall  be  interpreted  on  the  basis  of  GAAP  as  in  effect  and  applied immediately before such change shall have become effective until such notice shall have been withdrawn or  such  provision  amended  in  accordance  herewith.  Notwithstanding  any  other  provision  contained herein,  (i)  all  terms  of  an  accounting  or  financial  nature  used  herein  shall  be  construed,  and  all computations  of  amounts and ratios referred to herein  shall  be  made  (x) without  giving  effect  to  any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (y) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness  shall  at  all  times  be  valued  at  the  full  stated  principal  amount  thereof  and  (ii) notwithstanding the Company’s adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS  842 ”) any lease (or similar arrangement conveying the right  to  use)  that  was  not  required  to  be  treated  as  a  capital  lease  under  GAAP  as  in  effect  on December 31, 2015 shall not be considered a capital lease, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance with the foregoing. For the avoidance of doubt, and without limitation of the foregoing, Permitted Convertible Notes shall at all times be valued at the full stated principal amount thereof and shall not include any reduction or appreciation in value of the shares deliverable upon conversion thereof.        (b)    All  pro  forma  computations  required  to  be  made  hereunder  giving  effect  to  any acquisition  or  disposition,  or  issuance,  incurrence or assumption of Indebtedness, or other transaction shall in each case be calculated after giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder, to determine whether such acquisition, disposition, issuance, incurrence or assumption of Indebtedness or other transaction is permitted to be consummated hereunder) immediately after giving effect to such acquisition, disposition, issuance, incurrence or assumption of Indebtedness or other transaction consummated since the first day of the period for which such pro forma computation is being made and on or prior to the date of such computation, as if such transaction had occurred on the first day of the most recent Test Period, and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of (but without giving effect to any synergies or cost savings, except as set forth in the definition of “Consolidated  EBITDA ”) and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period for which such pro forma computation is being made (taking into account any Swap Agreement applicable to such Indebtedness).        SECTION 1.05. Status  of  Obligations . In the event that the Company or any other Loan Party shall at any time issue or have outstanding any Subordinated Indebtedness, the Company shall take or cause  such  other  Loan  Party  to  take  all  such  actions  as  shall  be  necessary  to  cause  the  Secured Obligations  to  constitute  senior  indebtedness  (however  denominated)  in  respect  of  such  Subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Secured Obligations are                                            50





 






hereby designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import  under  and  in  respect  of  any  indenture  or  other  agreement  or  instrument  under  which  such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.         SECTION 1.06. Interest  Rates;  LIBOR  Notifications . The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct  Authority  announced  that,  after  the  end  of 2021,  it  would  no  longer  persuade  or  compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA ”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 2.14(c)  of this Agreement, such Section 2.14(c)  provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower Representative, pursuant to Section 2.14 , in advance of any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect  to  any  alternative  or  successor  rate  thereto,  or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.14(c) , will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.         SECTION 1.07. Amendment  and  Restatement  of  the  Existing  Credit  Agreement . The parties to this  Agreement  agree  that,  on  the  Effective  Date,  the  terms  and  provisions  of  the  Existing  Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All loans made and obligations incurred under the Existing Credit Agreement which are outstanding on the Effective  Date  shall  continue  as  Loans  and  Secured Obligations  under  (and  shall  be  governed  by the terms  of)  this  Agreement  and  the  other  Loan  Documents.  Without  limiting  the  foregoing,  upon  the effectiveness  hereof:  (a)  all  references  in  the  “Loan  Documents”  (as  defined  in  the  Existing  Credit Agreement) to the “Administrative Agent,” the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) Letters of Credit which remain outstanding on the Effective Date shall continue as Letters of Credit under (and shall be  governed  by  the  terms  of)  this  Agreement,  (c)  all  obligations  constituting  “Obligations”  with  any Lender or any Affiliate of any Lender which are outstanding  on  the  Effective  Date  shall  continue  as Obligations under this Agreement and the other Loan Documents, (d) the liens and security interests in favor of the Administrative Agent for the benefit of the Secured Parties securing payment of the Secured Obligations (and all filings with any Governmental Authority in connection therewith) are in all respects continuing and in full force and effect with respect to all Secured Obligations, (e) the Administrative Agent  shall,  in  consultation  with  the Borrowers, make  such  reallocations,  sales,  assignments  or  other relevant actions in respect of each Lender’s credit and loan exposure under the Existing Credit Agreement                                            51





 






as are necessary in the judgment of the Administrative Agent in order that each such Lender’s outstanding Revolving Loans hereunder reflect such Lender’s ratable share of the outstanding Revolving Loans on the Effective  Date  and  (f)  each  of  the  Loan  Parties  reaffirms  the  terms  and  conditions  of  the  “Loan Documents” (as referred to and defined in the Existing Credit Agreement) executed by it, as modified and/or  restated  by  the  “Loan  Documents”  (as  referred  to  and  defined  herein),  and  acknowledges  and agrees that each “Loan Document” (as referred to and defined in the Existing Credit Agreement) executed by it, as modified and/or restated by the “Loan Documents” (as referred to and defined herein), remains in full force and effect and is hereby ratified, reaffirmed and confirmed.                                        ARTICLE II                                        The Credits         SECTION 2.01. Commitments . Subject to the terms and conditions set forth herein, each Lender (severally and not jointly) agrees to make Revolving Loans to the Borrowers in Dollars from time to time during the Availability Period if, after giving effect thereto:               (i)    such  Lender’s  Revolving  Exposure  would  not  exceed such  Lender’s        Commitment;               (ii)   the aggregate Company Revolving Exposures would not exceed an amount equal        to (x) the Aggregate Borrowing Base minus  (y) the sum of the Winnebago of Indiana Revolving        Exposures of all Lenders plus  the Grand Design Revolving Exposures of all Lenders  plus  the        Newmar Revolving Exposures of all Lenders ;               (iii)  the aggregate Winnebago of Indiana Revolving Exposures would not exceed an        amount equal to (x) the sum of Winnebago of Indiana’s Borrowing Base plus  the Company’s        Borrowing  Base  minus   (y)  the  sum  of  (A)  the  excess,  if  any,  of  the  aggregate  Company        Revolving Exposures of all Lenders over an  amount  equal  to  the  sum  of  (x)  the Excess Grand        Design Borrowing   Base   and   (y)   the   Excess   Newmar   Borrowing  Base  plus   (B) an   amount        equal to the sum of (x)  the Grand Design Utilization ; and  (y) the Newmar Utilization;               (iv)   the aggregate Grand Design Revolving Exposures would not exceed an amount        equal to (x) the sum of Grand Design’s Borrowing Base plus  the Company’s Borrowing Base        minus  (y) the sum of (A) the excess, if any, of the aggregate Company Revolving Exposures of        all Lenders over the amount  equal  to  the  sum  of  (x)  Excess Winnebago of Indiana Borrowing        Base plus ( y)  the  Excess  Newmar  Borrowing  Base  plus  ( B) the  amount  equal  to  the  sum  of        (x ) the Winnebago of Indiana Utilization  plus (y) the Newmar Utilization ; and               (v)    the   aggregate   Newmar   Revolving   Exposures   would   not   exceed   an   amount        equal   to   (x)   the   sum   of   Newmar’s   Borrowing   Base   plus   the   Company’s   Borrowing   Base        minus  (y)  the  sum  of  (A)  the  excess,  if  any,  of  the  aggregate  Company  Revolving  Exposures        of   all   Lenders   over   the   amount   equal   to   the   sum   of   (x)   Excess   Winnebago   of   Indiana        Borrowing   Base   plus   (y)   the   Excess   Grand   Design   Borrowing   Base   plus   (B)   the   amount        equal   to   the   sum   of   (x)   the   Winnebago   of   Indiana   Utilization   plus   (y)   the   Grand   Design        Utilization; and  subject, in each case, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances and Overadvances pursuant to the terms of Sections 2.04  and 2.05 . Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow                                             52





 






Revolving Loans. The limitations on Borrowings referred to in clauses  (i)  through (iv)  above are referred to collectively as the “Revolving Exposure Limitations ”.        SECTION 2.02. Loans and Borrowings .        (a)    Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the applicable Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be  made  by  it  shall  not  relieve  any  other  Lender  of  its  obligations  hereunder;  provided   that  the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Any Protective Advance, any Overadvance and any Swingline Loan shall be made in accordance with the procedures set forth in Sections 2.04  and 2.05 .         (b)   Subject to Section 2.14 , each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower Representative may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14 , 2.15 , 2.16  and 2.17  shall apply to such Affiliate to the same extent as to such Lender); provided  that any exercise of such option shall not affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this Agreement.         (c)   At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000. ABR Borrowings may be in any amount. Borrowings of more than one Type and Class may be outstanding at the same time; provided  that there shall not at any time be more than a total of six (6) Eurodollar Borrowings outstanding.        (d)    Notwithstanding any other provision of this Agreement,  the  Borrower  Representative shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.        SECTION 2.03. Requests   for   Borrowings .  To  request  a  Revolving  Borrowing,  the  Borrower Representative shall notify the Administrative Agent of such request either in writing (delivered by hand or  facsimile)  in  the  form  attached  hereto  as  Exhibit G-1   or  such  other  form  approved  by  the Administrative  Agent  and  signed  by  a  Responsible  Officer  of  the  Borrower  Representative  or  by telephone  or  through  Electronic  System,  if  arrangements  for  doing  so  have  been  approved  by  the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone), not later than (a) in the case of a Eurodollar Borrowing, 10:00 a.m., Chicago time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, 10:00 a.m., Chicago time, on the date of the proposed Borrowing; provided  that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e)  may be given not later than 9:00 a.m., Chicago time, on the date of such proposed Borrowing. Each such Borrowing Request shall be irrevocable and each such telephonic Borrowing Request, if permitted, shall be confirmed immediately upon  the  cessation  of  the  Extenuating  Circumstance by  hand  delivery,  facsimile  or  a  communication through  Electronic  System  to  the  Administrative  Agent  of  a  written  Borrowing  Request  in  the  form attached hereto as Exhibit G-1  or such other form approved by the Administrative Agent and signed by a Responsible  Officer  of  the  Borrower  Representative.  Each  such  written  (or  if  permitted,  telephonic) Borrowing Request shall specify the following information in compliance with Section 2.02 :        (a)    the name of the applicable Borrower;                                             53





 






       (b)   the aggregate amount of the requested Borrowing and a breakdown of the separate wires comprising such Borrowing;        (c)    the date of such Borrowing, which shall be a Business Day;        (d)    whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and        (e)    in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”.        If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.         SECTION 2.04. Protective Advances .         (a)   Subject to the limitations set forth below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall have absolutely no obligation to), to make Loans to the Borrowers, on behalf of all Lenders, which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the  Collateral,  or  any  portion  thereof,  (ii)  to  enhance  the  likelihood  of,  or  maximize  the  amount  of, repayment of the Loans and other Obligations, or (iii) to pay any other amount chargeable to or required to be paid by the Borrowers pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 9.03 ) and other sums payable under the Loan Documents (any of such Loans are herein referred to as “Protective  Advances ”); provided  that, the aggregate amount of Protective Advances outstanding at any time, when aggregated with the amount of  Overadvances  outstanding  at  such  time,  shall  not  at  any  time  exceed  10%  of  the  Aggregate Commitment;  provided   further   that,  the  Aggregate  Revolving  Exposure  after  giving  effect  to  the Protective Advances being made shall not exceed the Aggregate Commitment. Protective Advances may be made even if the conditions precedent set forth in Section 4.02  have not been satisfied. The Protective Advances shall be secured by the Liens in favor of the Administrative Agent in and to the Collateral and shall constitute Obligations hereunder. All Protective Advances shall be ABR Borrowings. The making of a  Protective  Advance  on  any  one  occasion  shall  not obligate  the  Administrative  Agent  to  make  any Protective Advance on any other occasion. The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. At any time that there is sufficient Aggregate Availability and the conditions precedent set forth in Section 4.02 have been satisfied, the Administrative Agent may request the Lenders to make a Revolving Loan to repay a Protective Advance. At any other time the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.04(b) .         (b)   Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default), each Lender shall be deemed, without further action by any party hereto,  to  have  unconditionally  and  irrevocably  purchased  from  the  Administrative  Agent,  without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Applicable Percentage. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest                                            54





 






and  all  proceeds  of  Collateral  received  by  the  Administrative  Agent  in  respect  of  such  Protective Advance.         SECTION 2.05. Swingline Loans and Overadvances .         (a)   The Administrative Agent, the Swingline Lender and the Lenders agree that in order to facilitate  the  administration  of  this  Agreement  and  the  other  Loan  Documents,  promptly  after  the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a)  apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount requested, same day funds to the Borrowers, on the date of the applicable Borrowing to the Funding  Account(s)  (each  such  Loan  made  solely  by  the  Swingline  Lender  pursuant  to  this Section 2.05(a)  is referred to in this Agreement as a “Swingline Loan ”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(d) . Each Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account. In addition,  the  Borrower  Representative  hereby  authorizes  the  Swingline  Lender  to,  and  the  Swingline Lender may, subject to the terms and conditions set forth herein (but without any further written notice required), to the extent that from time to time on any Business Day funds are required under the DDA Access  Product  to  reach  the  Target  Balance  (a  “Deficiency   Funding   Date ”),  make  available  to  the Borrowers the proceeds of a Swingline Loan in the amount of such deficiency up to the Target Balance, by means of a credit to the Funding Account on or before the start of business on the next succeeding Business Day, and such Swingline Loan shall be deemed made on such Deficiency Funding Date. The aggregate amount of Swingline Loans outstanding at any time shall not exceed an amount equal to 10% of the Aggregate Commitment. The Swingline Lender shall not make any Swingline Loan if the requested Swingline  Loan  results  in  the  Borrowers  failing  to be  in  compliance  with  the  Revolving  Exposure Limitations (before or after giving effect to such Swingline Loan). All Swingline Loans shall be ABR Borrowings.         (b)   Any provision of this Agreement to the contrary notwithstanding, at the request of the Borrower  Representative, the Administrative Agent may in its sole discretion (but with absolutely no obligation), make Revolving Loans to the Borrowers, on behalf of the Lenders, in amounts that exceed Aggregate  Availability  or  any  Borrower’s  Availability  (any  such  excess  Revolving  Loans  are  herein referred to collectively as “Overadvances ”); provided  that, no Overadvance shall result in a Default due to Borrowers’ failure to comply with Section 2.01  for so long as such Overadvance remains outstanding in accordance with the terms of this paragraph, but solely with respect to the amount of such Overadvance. In addition, Overadvances may be made even if the condition precedent set forth in Section 4.02(c)  has not been satisfied. All Overadvances shall constitute ABR Borrowings. The making of an Overadvance on any one occasion shall not obligate the Administrative Agent to make any Overadvance on any other occasion. The authority of the Administrative Agent to make Overadvances is limited to an aggregate amount not to exceed, when aggregated with the aggregate amount of Protective Advances outstanding at such time, 10% of the Aggregate Commitment at any time, no Overadvance may remain outstanding for more than thirty (30) days and no Overadvance shall cause any Lender’s Revolving Exposure to exceed its Commitment; provided  that, the Required Lenders may at any time revoke the Administrative Agent’s authorization to make Overadvances. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof.         (c)   Upon the making of a Swingline Loan or an Overadvance (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline  Loan  or  Overadvance),  each  Lender  shall  be  deemed,  without  further  action  by  any  party hereto,  to  have  unconditionally  and  irrevocably  purchased  from  the  Swingline  Lender  or  the Administrative  Agent,  as  the  case  may  be,  without  recourse  or  warranty,  an  undivided  interest  and                                            55





 






participation in such Swingline Loan or Overadvance in proportion to its Applicable Percentage of the Commitment. The Swingline Lender or the Administrative Agent may, at any time, require the Lenders to fund their participations. From and after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan or Overadvance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swingline Loan or Overadvance.        (d)    The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement ”) with the Lenders on at least a weekly basis and on any date that the Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon, Chicago time, on the date of such requested Settlement (the “Settlement  Date ”). Each Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect  to  which  Settlement  is  requested  to  the  Administrative  Agent,  to  such  account  of  the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable  conditions  precedent  set  forth  in  Section 4.02   have  then  been  satisfied.  Such  amounts transferred to the Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Lenders, respectively. If any such amount is not transferred to the Administrative Agent by any Lender on such Settlement Date, the Swingline Lender shall be entitled to  recover  from  such  Lender  on  demand  such  amount, together  with  interest  thereon,  as  specified  in Section 2.07 .         SECTION 2.06. Letters of Credit .         (a)   General .  Subject  to  the  terms  and  conditions  set  forth  herein,  the  Borrower Representative may request the issuance of Letters of Credit for its own account or for the account of another Borrower denominated in Dollars as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form reasonably acceptable to the Administrative Agent and the relevant Issuing Bank, at any time and from time to time during the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrowers to, or entered into by the Borrowers with, the relevant Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.  Notwithstanding  anything  herein  to  the  contrary,  the  Issuing  Bank  shall  have  no  obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (B) in any manner that  would  result  in  a  violation  of  any  Sanctions  by  any  party  to  this  Agreement,  (ii)  if  any  order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Requirement of Law relating to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good faith deems material to it, or (iii) if the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally; provided  that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street                                            56





 






Reform  and  Consumer  Protection  Act  and  all  requests,  rules,  guidelines,  requirements  or  directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed not to be in effect on the Effective Date for purposes of clause  (ii)  above, regardless of the date enacted, adopted, issued or implemented.        (b)    Notice  of  Issuance,  Amendment,  Renewal,  Extension;  Certain  Conditions . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower Representative shall hand deliver or telecopy (or transmit through Electronic Systems, if arrangements for doing so have been approved by the relevant Issuing Bank) to an Issuing Bank and the Administrative Agent (reasonably in advance of, but in any event no less than three (3) Business Days prior  to,  the  requested  date  of  issuance,  amendment,  renewal  or  extension)  a  notice  requesting  the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c)  of this Section), the amount of such Letter of Credit, the name and address  of  the  beneficiary  thereof  and  such  other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. In addition, as a  condition  to  any  such  Letter  of  Credit  issuance, the  applicable  Borrower  shall  have  entered  into  a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter of credit application in each case, as required by the Issuing Bank and using such Issuing Bank’s  standard  form  (each,  a  “Letter   of   Credit   Agreement ”). If requested by such Issuing Bank, the applicable Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in  connection  with  any  request  for  a  Letter  of  Credit.  A  Letter  of  Credit  shall  be  issued,  amended, renewed or extended only if (and upon issuance, amendment,  renewal  or  extension  of  each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure shall not exceed $19,250,000 and (ii) the Borrowers  shall  be  in  compliance  with  the  Revolving  Exposure  Limitations.  Notwithstanding  the foregoing or anything to the contrary contained herein, no Issuing Bank shall be obligated to issue or modify any Letter of Credit if, immediately after giving effect thereto, the outstanding LC Exposure in respect of all Letters of Credit issued by such Person and its Affiliates would exceed such Issuing Bank’s Issuing Bank Sublimit. Without limiting the foregoing and without affecting the limitations contained herein, it is understood and agreed that the Borrower Representative may from time to time request that an Issuing Bank issue Letters of Credit in excess of its individual Issuing Bank Sublimit in effect at the time of such request, and each Issuing Bank agrees to consider any such request in good faith. Any Letter of Credit so issued by an Issuing Bank in excess of its individual Issuing Bank Sublimit then in effect shall nonetheless constitute a Letter of Credit for all purposes of the Credit Agreement, and shall not affect the Issuing Bank Sublimit of any other Issuing Bank, subject to the limitations on the aggregate LC Exposure set forth in clause (i)  of this Section 2.06(b) .         (c)   Expiration   Date .  Each  Letter  of  Credit  shall  expire  (or  be  subject  to  termination  or non-renewal by notice from the relevant Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the  case  of  any  renewal  or  extension  thereof,  including,  without  limitation,  any  automatic  renewal provision, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date.        (d)    Participations . By the issuance of a Letter of Credit (or an amendment  to  a  Letter  of Credit increasing the amount thereof) and without any further action on the part of any Issuing Bank or the Lenders, each Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from each                                            57





 






Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the relevant Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement  made  by  such  Issuing  Bank  and  not  reimbursed  by  the  Borrowers  on  the  date  due  as provided in paragraph (e)  of this Section, or of any reimbursement payment required to be refunded to the Borrowers  for  any  reason.  Each  Lender  acknowledges and  agrees  that  its  obligation  to  acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.         (e)   Reimbursement . If the Issuing Bank shall make any LC Disbursement  in  respect  of  a Letter of Credit, the Borrowers shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement (i) not later than 11:00 a.m., Chicago time, on the date that such LC Disbursement is made, if the Borrower Representative shall have received notice of such LC Disbursement prior to 9:00 a.m., Chicago time, on such date, or, (ii) if such notice has not been received by the Borrower Representative prior to such time on such date, then not later than 11:00 a.m., Chicago time, on (A) the Business Day that the Borrower Representative receives such notice, if such notice is received prior to 9:00 a.m., Chicago time, on the day of receipt, or (B) the Business Day immediately following the day that the Borrower Representative receives such notice, if such notice is not received prior to such time on the day of receipt; provided  that, the Borrowers may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03  or 2.05  that such payment be financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed,  the  Borrowers’  obligation  to  make  such  payment  shall  be  discharged  and  replaced  by  the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrowers fail to make such payment when  due,  the  Administrative  Agent  shall  notify  each  Revolving  Lender  of  the  applicable  LC Disbursement, the payment then due from the Borrowers in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrowers, in the same manner as provided in Section 2.07  with respect to Loans made by such Lender (and Section 2.07  shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute  a  Loan  and  shall  not  relieve  the  Borrowers  of  their  obligation  to  reimburse  such  LC Disbursement.         (f)   Obligations   Absolute .  The  Borrowers’  joint  and  several  obligation  to  reimburse  LC Disbursements  as  provided  in  paragraph (e)   of  this  Section shall  be  absolute,  unconditional  and irrevocable, and shall be performed in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) any payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not                                            58





 






comply  with  the  terms  of  such  Letter  of  Credit,  or (iv) any  other  event  or  circumstance  whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a  legal  or  equitable  discharge  of,  or  provide  a  right  of  setoff  against,  the  Borrowers’  obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties,  shall  have  any  liability  or  responsibility  by  reason  of  or  in  connection  with  the  issuance  or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter  of  Credit  (including  any  document  required  to  make  a  drawing  thereunder),  any  error  in interpretation  of  technical  terms  or  any  consequence  arising  from  causes  beyond  the  control  of  the relevant  Issuing  Bank;  provided  that the foregoing shall not be construed to excuse any Issuing Bank from  liability  to  the  Borrowers  to  the  extent  of  any  direct  damages  (as  opposed  to  special,  indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by any Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as finally determined by a court of competent  jurisdiction),  such  Issuing  Bank  shall  be  deemed  to  have  exercised  care  in  each  such determination.  In  furtherance  of  the  foregoing  and without  limiting  the  generality  thereof,  the  parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information  to  the  contrary,  or  refuse  to  accept  and  make  payment  upon  such  documents  if  such documents are not in strict compliance with the terms of such Letter of Credit.         (g)   Disbursement   Procedures .  Each  Issuing  Bank  shall,  promptly  following  its  receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Each  Issuing  Bank  shall  promptly  notify  the  Administrative  Agent  and  the  applicable  Borrower  by telephone (confirmed by fax or through Electronic Systems) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided  that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.        (h)    Interim  Interest . If any Issuing Bank shall make any LC Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrowers reimburse such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans and such interest shall be payable on the date when such reimbursement is due; provided  that, if the Borrowers fail to reimburse such LC Disbursement when due pursuant to paragraph (e)  of this Section, then Section 2.13(d)  shall apply. Interest accrued pursuant to this paragraph shall be for the account of such Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e)  of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.        (i)    Replacement and Resignation of an Issuing Bank . (A) Any Issuing Bank may be replaced at  any  time by  written  agreement  among the Borrower  Representative,  the  Administrative  Agent,  the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b) . From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters                                            59





 






of Credit to be issued thereafter and (ii) references herein to the term “Issuing  Bank ” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement  of  an  Issuing  Bank  hereunder,  the  replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or extend or otherwise amend any existing Letters of Credit.                      (B)    Subject to the appointment and acceptance of a successor Issuing Bank              in  accordance  with  the  terms  of  this  Agreement,  any  Issuing  Bank  may  resign  as  an              Issuing Bank at any time upon thirty (30) days’ prior written notice to the Administrative              Agent,  the  Borrower  Representative  and  the  Lenders,  in  which  case,  such  resigning              Issuing Bank shall be replaced in accordance with Section 2.06(i)(A)  above.         (j)   Cash   Collateralization . If any Event of Default shall occur and be continuing,  on  the Business  Day  that  the  Borrower  Representative  receives  notice  from  the  Administrative  Agent  or  the Required Lenders (or, if the maturity of the Loans has  been  accelerated,  Revolving  Lenders  with  LC Exposure representing greater than 66 2/3% of the aggregate LC Exposure) demanding the deposit of cash  collateral  pursuant  to  this  paragraph,  the  Borrowers  shall  deposit  in  an  account  with  the Administrative  Agent,  in  the  name  of  the  Administrative  Agent  and  for  the  benefit  of  the  Revolving Lenders  (the  “LC   Collateral   Account ”),  an  amount  in  cash  equal  to  103%  of the amount of  the  LC Exposure as of such date plus  accrued and unpaid interest thereon; provided  that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in clause (h)  or (i)  of Article VII . Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Secured Obligations. The Administrative  Agent  shall  have  exclusive  dominion and  control,  including  the  exclusive  right  of withdrawal, over the LC Collateral Account and the Borrowers hereby grant the Administrative Agent a security interest in the LC Collateral Account and all money or other assets on deposit therein or credited thereto. Other than any interest earned on the investment of such deposits, which investments shall be made  at  the  option  and  sole  discretion  of  the  Administrative  Agent  and  at  the  Borrowers’  risk  and expense,  such  deposits  shall  not  bear  interest.  Interest  or  profits,  if  any,  on  such  investments  shall accumulate in the LC Collateral Account. Moneys in the LC Collateral Account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed  and,  to  the  extent  not  so  applied,  shall  be  held  for  the  satisfaction  of  the  reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater than 66 2/3% of the aggregate LC Exposure), be applied to satisfy other Secured Obligations. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three (3) Business Days after all such Events of Default  have  been  cured  or  waived  as  confirmed  in writing by the Administrative Agent.         (k)   Issuing   Bank   Reports   to   the   Administrative   Agent .  Unless  otherwise  agreed  by  the Administrative  Agent,  each  Issuing  Bank  shall,  in  addition  to  its  notification  obligations  set  forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment,  renewal  or  extension,  and  the  stated  amount  of  the  Letters  of  Credit  issued,  amended,                                            60





 






renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any  Business  Day  on  which  any  Borrower  fails  to  reimburse  an  LC  Disbursement  required  to  be reimbursed  to  such  Issuing  Bank  on  such  day,  the  date  of  such  failure  and  the  amount  of  such  LC Disbursement, and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.        (l)    LC  Exposure  Determination . For all purposes of this Agreement, the amount of a Letter of  Credit  that,  by  its  terms  or  the  terms  of  any  document  related  thereto,  provides  for  one  or  more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.        (m)    Letters   of   Credit   Issued   for   Account   of   Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like, of or for such Letter of Credit, and without derogating from any rights of the Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary in respect of such Letter of Credit, the Borrowers (i) shall reimburse, indemnify and compensate the Issuing Bank hereunder for such Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued solely for the account of a Borrower and (ii) irrevocably waives any and all defenses that might  otherwise  be  available  to  it  as  a  guarantor  or  surety  of  any  or  all  of  the  obligations  of  such Subsidiary in respect of such Letter of Credit. Each Borrower hereby acknowledges that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.        SECTION 2.07. Funding of Borrowings .        (a)    Each Lender shall make each Loan to be made by such Lender hereunder on the proposed date thereof solely by wire transfer of immediately available funds by 1:00 p.m., Chicago time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable Percentage; provided  that, Swingline Loans shall be made as provided in Section 2.05 . The Administrative Agent will make such Loans available to the Borrower  Representative  by  promptly  crediting  the  funds  so  received  in  the  aforesaid  account  of  the Administrative Agent to the Funding Account; provided  that ABR Revolving Loans made to finance the reimbursement  of  (i)  an  LC  Disbursement  as  provided  in  Section 2.06(e)   shall  be  remitted  by  the Administrative  Agent  to  the  Issuing  Bank  and  (ii)  a  Protective  Advance  or  an  Overadvance  shall  be retained by the Administrative Agent.        (b)    Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a)  of this Section and may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then  the  applicable  Lender  and  such  Borrower  severally  agree  to  pay  to  the  Administrative  Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative  Agent,  at  (i) in  the  case  of  such  Lender,  the  greater  of  the  NYFRB  Rate  and  a  rate determined  by  the  Administrative  Agent  in  accordance  with  banking  industry  rules  on  interbank                                            61





 






compensation or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan  included  in  such  Borrowing,  provided ,  that  any  interest  received  from  a  Borrower  by  the Administrative  Agent  during  the  period  beginning  when  Administrative  Agent  funded  the  Borrowing until such Lender pays such amount shall be solely for the account of the Administrative Agent.         SECTION 2.08. Interest Elections .         (a)   Each Borrowing initially shall be of the Type specified  in  the  applicable  Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower Representative may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower Representative may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, Overadvances, or Protective Advances, which may not be converted or continued.         (b)   To make an election pursuant to this Section, the Borrower Representative shall notify the Administrative Agent of such election either in writing (delivered by hand or fax) by delivering an Interest Election Request signed by a Responsible Officer  of  the  Borrower  Representative  or  through Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating  Circumstance  shall  exist,  by  telephone)  by  the  time  that  a  Borrowing  Request  would  be required under Section 2.03  if the Borrowers were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be  irrevocable  each  such  telephonic  Interest  Election  Request,  if  permitted,  shall  be  confirmed immediately upon the cessation of the Extenuating Circumstance by hand delivery, Electronic System or facsimile to the Administrative Agent of a written Interest Election Request in the form attached hereto as Exhibit G-2  (or such other form approved by the Administrative Agent) and signed by a Responsible Officer of the Borrower Representative. Notwithstanding any contrary provision herein, this Section shall not be construed to permit any Borrower to elect an Interest Period for Eurodollar Loans that does not comply with Section 2.02(d) .         (c)   Each written (or if permitted, telephonic) Interest Election Request (including requests submitted  through  Electronic  System)  shall  specify the  following  information  in  compliance  with Section 2.02 :               (i)    the name of the applicable Borrower and the Borrowing to which such Interest       Election  Request  applies  and,  if  different  options are  being  elected  with  respect  to  different       portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case       the information to be specified pursuant to clauses (iii)  and (iv)  below shall be specified for each        resulting Borrowing);               (ii)   the effective date of the election made pursuant to such Interest Election Request,       which shall be a Business Day;               (iii)  whether the resulting Borrowing is to be an ABR Borrowing  or  a  Eurodollar        Borrowing; and                                             62





 






             (iv)   if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be        applicable thereto after giving effect to such election,  which  Interest  Period  shall  be  a period        contemplated by the definition of the term “Interest Period”.         If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.        (d)    Promptly following receipt of an Interest Election  Request,  the  Administrative  Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.        (e)    If the Borrower Representative fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower Representative, then, so long as an Event of Default is continuing (i) no outstanding Borrowing  may  be  converted  to or continued as a Eurodollar  Borrowing  and  (ii)  unless  repaid,  each Eurodollar  Borrowing  shall  be  converted  to  an  ABR  Borrowing  at  the  end  of  the  Interest  Period applicable thereto.        SECTION 2.09. Termination and Reduction of Commitments; Increase in Commitments .         (a)   Unless previously terminated, the Commitments shall terminate on the Maturity Date.         (b)   The Borrowers may at any time terminate the Commitments upon (i) the payment in full of all outstanding Loans, together with accrued and unpaid interest thereon and on any Letters of Credit, (ii) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of a cash deposit (or at the discretion of the Administrative Agent a back-up standby letter of credit satisfactory to the Administrative Agent and Issuing Bank) equal to 103% of the LC Exposure as of such date), (iii) the payment in full of the accrued and unpaid fees, and (iv) the payment in full of all reimbursable expenses and other Obligations (other than Unliquidated Obligations), together with accrued and unpaid interest thereon.        (c)    The Borrowers may from time to time reduce the Commitments; provided  that (i) each reduction of the Commitments shall be in an amount that is an integral multiple of $10,000,000 and not less than $10,000,000; (ii) the Borrowers shall not terminate or reduce the Commitments if, after giving effect  to  any  concurrent  prepayment  of  the  Revolving  Loans  in  accordance  with  Section 2.10 ,  the Borrowers  shall  not  be  in  compliance  with  the  Revolving  Exposure  Limitations;  and  (iii) any  such reduction shall be permanent.         (d)   The Borrower Representative shall notify the Administrative  Agent  of  any  election  to terminate or reduce the Commitments under the foregoing paragraphs of this Section at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise  the  Lenders  of  the  contents  thereof.  Each  notice  delivered  by  the  Borrower  Representative pursuant to this Section shall be irrevocable; provided  that a notice of termination of the Commitments delivered by the Borrower Representative may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower Representative (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 shall be permanent. Each reduction of the                                            63





 






Commitments  shall  be  made  ratably  among  the  Lenders  in  accordance  with  their  respective Commitments.         (e)   The Borrowers shall have the right to increase the Commitments by obtaining additional Commitments, either from one or more of the Lenders or another lending institution provided  that (i) any such request for an increase shall be in a minimum amount of $25,000,000 (or such lesser amount that represents all remaining availability hereunder), (ii) after giving effect thereto, the sum of the total of the additional Commitments does not exceed $100,000,000, (iii) the Administrative Agent and the Issuing Bank(s)  have  approved  the  identity  of  any  such  new Lender,  such  approvals  not  to  be  unreasonably withheld, (iv) any such new Lender assumes all of the rights and obligations of a “Lender ” hereunder, and (v) the procedure described in Section 2.09(f)  have been satisfied. Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.         (f)   Any amendment hereto for such an increase or addition shall be in form and substance reasonably satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrowers and each Lender being added or increasing its Commitment. As a condition precedent to such an increase or addition, the Borrowers shall deliver to the Administrative Agent  (i)  a  certificate  of  each  Loan  Party  signed  by  an  authorized  officer  of  such  Loan  Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case of the Borrowers, certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties contained in Article III  and the other Loan Documents are true and correct in all material respects (provided  that any representation or warranty that is qualified by materiality or Material Adverse Effect is true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect are true and correct in all respects) as of such earlier date, (2) no Default exists and (3) the Borrowers are in compliance (on a pro forma basis) with the covenant contained in Section 6.12  (calculated assuming an FCCR Test Period is then in effect) and (ii) legal opinions and documents consistent with those delivered on the Effective Date, to the extent reasonably requested by the Administrative Agent.         (g)   On the effective date of any such increase or addition, (i) any Lender increasing (or, in the  case  of  any  newly  added  Lender,  extending)  its Commitment  shall  make  available  to  the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase or addition and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its revised Applicable Percentage of such outstanding Revolving Loans, and the Administrative Agent shall make such other adjustments among the Lenders with respect to the Revolving Loans then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to effect such reallocation and (ii) the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase (or addition) in the Commitments (with  such  reborrowing  to  consist  of  the  Types  of Revolving  Loans,  with  related  Interest  Periods  if  applicable,  specified  in  a  notice  delivered  by  the Borrower Representative, in accordance with the requirements of Section 2.03 ). The deemed payments made pursuant to clause (ii)  of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification  by  the  Borrowers  pursuant  to  the  provisions  of  Section 2.16   if  the  deemed  payment occurs  other  than  on  the  last  day  of  the  related  Interest  Periods.  Within  a  reasonable  time  after  the effective date of any increase or addition, the Administrative Agent shall, and is hereby authorized and                                            64





 






directed to, revise the Commitment Schedule to reflect such increase or addition and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrower Representative, whereupon such revised  Commitment  Schedule shall  replace  the  old  Commitment  Schedule and  become  part  of  this Agreement.         SECTION 2.10. Repayment of Loans; Evidence of Debt .         (a)   The Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date, (ii) to the Administrative Agent the then unpaid amount of each Protective Advance on the earlier of the Maturity Date and demand by the Administrative Agent and (iii) to the Administrative Agent the then unpaid principal amount of each Overadvance on the earlier of the Maturity Date and demand by the Administrative Agent.         (b)   At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement,  on  each  Business  Day,  the  Administrative  Agent  shall  apply  all  funds  credited  to  the Collection Account on such Business Day or the immediately preceding Business Day (at the discretion of  the  Administrative  Agent,  whether  or  not  immediately  available)  first  to  prepay  any  Protective Advances and Overadvances that may be outstanding, pro rata, and second to prepay the Revolving Loans (including Swingline Loans) and to cash collateralize outstanding LC Exposure.         (c)   Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.         (d)   The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof  and  the  Interest  Period  applicable  thereto, (ii) the  amount  of  any  principal  or  interest  due  and  payable  or  to  become  due  and  payable  from  the Borrowers  to  each  Lender  hereunder  and (iii) the amount  of  any  sum  received  by  the  Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.         (e)   The  entries  made  in  the  accounts  maintained  pursuant  to  paragraph (c)   or  (d)  of  this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided  that the failure of any Lender or the Administrative Agent to maintain such accounts or any error  therein  shall  not  in  any  manner  affect  the  obligation  of  the  Borrowers  to  repay  the  Loans  in accordance with the terms of this Agreement.         (f)   Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in a form approved by the Administrative Agent. Thereafter, the  Loans  evidenced  by  such  promissory  note  and  interest  thereon  shall  at  all  times  (including  after assignment pursuant to Section 9.04 ) be represented by one or more promissory notes in such form.         SECTION 2.11. Prepayment of Loans .        (a)    The Borrowers shall have the right at any time and  from  time  to  time  to  prepay  any Borrowing  in  whole  or  in  part,  subject  to  prior  notice  in  accordance  with  paragraph (c)   of  this Section and, if applicable, payment of any break funding expenses under Section 2.16 .                                             65





 






       (b)   Except for Protective Advances and Overadvances permitted  under  Sections 2.04   and 2.05 , if at any time the Borrowers are not in compliance with the Revolving Exposure Limitations, the Borrowers shall prepay the Revolving Loans, LC Exposure and/or Swingline Loans or cash collateralize LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j) , as applicable, in an aggregate amount equal to such excess.         (c)   The Borrower Representative shall notify the Administrative Agent (and, in the case of prepayment  of  a  Swingline  Loan,  the  Swingline  Lender)  by  telephone  (confirmed  by  facsimile)  or through  Electronic  System,  if  arrangements  for  doing  so  have  been  approved  by  the  Administrative Agent,  of  any  prepayment  hereunder  not  later  than  10:00 a.m.,  Chicago  time,  (A) in  the  case  of prepayment of a Eurodollar Borrowing, three (3) Business Days before the date of prepayment or (B) in the case of prepayment of an ABR Borrowing, on the date  of  prepayment.  Each  such  notice  shall  be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided  that if a notice of prepayment is given in connection with a conditional notice  of  termination  of  the  Commitments  as  contemplated  by  Section 2.09 ,  then  such  notice  of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09 . Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02 . Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13  and amounts due under Section 2.16 .         SECTION 2.12. Fees .         (a)   The Borrowers agree to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at 0.25% per annum on the average daily amount of the Available Commitment of such Lender during the period from and including the Effective Date to but excluding the date  on  which  such  Lender’s  Commitment  terminates. Accrued  commitment  fees  shall  be  payable  in arrears on the first Business Day of January, April, July and October of each year and on the date on which  the  Commitments  terminate,  commencing  on  the first such date to occur after the date hereof; provided  that any commitment fees accruing after the date on which the Commitments terminate shall be payable on demand. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, the Commitment of a Lender shall be deemed to be used to the extent of the outstanding Loans and LC Exposure of such Lender.         (b)   The Borrowers agree to pay (i) to the Administrative  Agent  for  the  account  of  each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the average  daily  amount  of  such  Lender’s  LC  Exposure  (excluding  any  portion  thereof  attributable  to unreimbursed  LC  Disbursements)  during  the  period  from  and  including  the  Effective  Date  to  but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the applicable Issuing Bank, for its own account, a fronting fee, which shall accrue at the rate per annum separately agreed upon by the Company and such Issuing Bank on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by such Issuing Bank during the period from and including the Effective Date to but excluding the later of the date of termination of the  Commitments  and  the  date  on  which  there  ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder.                                            66





 






Participation fees and fronting fees accrued through and including the last day of each calendar quarter shall be payable on the first Business Day of each January, April, July and October following such last day, commencing on the first such date to occur after the Effective Date; provided  that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).        (c)    The  Borrowers agree to pay to the Administrative Agent,  for  its  own  account,  fees payable  in  the  amounts  and  at  the  times  separately agreed  upon  between  the  Borrowers  and  the Administrative Agent.        (d)    All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the  case  of  commitment  fees  and  participation  fees, to the Lenders. Fees paid shall not be refundable under any circumstances.        SECTION 2.13. Interest .         (a)   The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the REVLIBOR30 Rate plus  the Applicable Rate.         (b)   The Loans comprising each Eurodollar Borrowing shall  bear  interest  at  the  Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus  the Applicable Rate.        (c)    Each Protective Advance and each Overadvance shall bear interest at the Alternate Base Rate plus  the Applicable Rate for Revolving Loans plus  2%.        (d)    Notwithstanding the foregoing, during the occurrence and continuance of an Event of Default, the Administrative Agent or the Required Lenders may, at their option, by written notice to the Borrower  Representative  (which  notice  may  be  revoked  at  the  option  of  the  Required  Lenders notwithstanding any provision of Section 9.02  requiring the consent of “each Lender affected thereby” for reductions in interest rates), declare that (i) all Loans shall bear interest at 2% plus  the rate otherwise applicable to such Loans as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount outstanding hereunder, such amount shall accrue at 2% plus  the rate applicable to such fee or other obligation as provided hereunder; provided that no notice shall be required and the foregoing rates shall automatically take effect upon the occurrence of an Event of Default under clause (a) , (h) , (i)  or (j)  of Article VII .         (e)   Accrued interest on each Loan (for ABR Loans, accrued through the last day of the prior calendar  month)  shall  be  payable  in  arrears  on  each  Interest  Payment  Date  for  such  Loan  and  upon termination  of  the  Commitments;  provided   that  (i) interest  accrued  pursuant  to  paragraph (d)   of  this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than  a  prepayment  of  an  ABR  Revolving  Loan  prior  to  the  end  of  the  Availability  Period),  accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.                                             67





 






       (f)   All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate, REVLIBOR30 Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.        SECTION 2.14. Alternate Rate of Interest; Illegality .        (a)    If prior to the commencement of any Interest Period for a Eurodollar Borrowing:               (i)    the Administrative Agent determines (which determination shall be conclusive       and  binding  absent  manifest  error)  that  adequate  and  reasonable  means  do  not  exist  for       ascertaining  the  Adjusted  LIBO  Rate  or  the  LIBO  Rate,  as  applicable  (including,  without       limitation, by means of an Interpolated Rate or because the LIBO Screen Rate is not available or       published on a current basis) for such Interest Period; or               (ii)   the Administrative Agent is advised by the Required Lenders that the Adjusted       LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly       reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)       included in such Borrowing for such Interest Period;  then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lenders through Electronic System as provided in Section 9.01  as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (B) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.        (b)    If any Lender determines that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain, fund or continue any Eurodollar Borrowing, 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 Representative through the Administrative Agent, any obligations of such Lender to make, maintain, fund or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings will be suspended until such Lender notifies the Administrative Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrowers will upon demand from such Lender (with a copy to the Administrative Agent), either convert all Eurodollar Borrowings of such Lender to ABR Borrowings or prepay all such Eurodollar Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such conversion or prepayment, the Borrowers will also pay accrued interest on the amount so converted or prepaid.        (c)    If  at  any  time  the  Administrative  Agent  determines  (which  determination  shall  be conclusive absent manifest error) that (i) the circumstances set forth in clause  (a)(i)  have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause  (a)(i)  have not                                            68





 






arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement  that  the  administrator  of  the  LIBO  Screen  Rate  is  insolvent  (and  there  is  no  successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used  for  determining  interest  rates  for  loans,  then  the  Administrative  Agent  and  the  Borrower Representative shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate). Notwithstanding  anything  to  the  contrary  in  Section 9.02 ,  such  amendment  shall  become  effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with  this  clause   (c)   (but,  in  the  case  of  the  circumstances  described  in  clause (ii)(w) ,  clause   (ii)(x)   or clause (ii)(y)  of the first sentence of this Section 2.14(c) , only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request  that  requests  the  conversion  of  any  Borrowing  to,  or  continuation  of  any  Borrowing  as,  a Eurodollar  Borrowing  shall  be  ineffective  and  any  such  Eurodollar  Borrowing  shall  be  repaid  or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing; provided  that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.         SECTION 2.15. Increased Costs .         (a)   If any Change in Law shall:               (i)    impose,  modify  or  deem  applicable  any  reserve,  special  deposit,  liquidity  or        similar  requirement  (including  any  compulsory  loan requirement,  insurance  charge  or  other        assessment)  against  assets  of,  deposits  with  or  for  the  account  of,  or  credit  extended  by,  any        Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing        Bank;               (ii)   impose on any Lender or the Issuing Bank or the London interbank market any       other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by       such Lender or any Letter of Credit or participation therein; or               (iii)  subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes       described  in  clauses   (b)   through  (d)   of  the  definition  of  Excluded  Taxes  and  (C) Connection        Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or        its deposits, reserves, other liabilities or capital attributable thereto;                                             69





 






and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any  such  Loan)  or  to  increase  the  cost to such Lender,  the  Issuing  Bank  or  such  other  Recipient  of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest  or  otherwise),  then  the  Borrowers  will  pay  to  such  Lender,  the  Issuing  Bank  or  such  other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered as reasonably determined by the Administrative Agent, such Lender or such Issuing Bank (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent, such Lender or such Issuing Bank, as applicable, under agreements having provisions similar to this Section 2.15 , after consideration of  such  factors  as  the  Administrative  Agent,  such  Lender  or  such  Issuing  Bank,  as  applicable,  then reasonably determines to be relevant).        (b)    If any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of, or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below  that  which  such  Lender  or  the  Issuing  Bank  or  such  Lender’s  or  the  Issuing  Bank’s  holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender  or  the  Issuing  Bank  or  such  Lender’s  or  the Issuing  Bank’s  holding  company  for  any  such reduction  suffered  as  reasonably  determined  by  the Administrative  Agent  or  such  Lender  (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent or such Lender, as applicable, under agreements having provisions similar to this Section 2.15 , after consideration of such factors as the Administrative Agent or such Lender, as applicable, then reasonably determines to be relevant).         (c)   A  certificate  of  a  Lender  or  the  Issuing  Bank  setting  forth  the  amount  or  amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified  in  paragraph (a)   or  (b)  of this Section shall be delivered to the Borrower  Representative  and shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the Issuing Bank, as the  case  may  be,  the  amount  shown  as  due  on  any  such  certificate  within  ten  (10) days  after  receipt thereof.        Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided  that the Borrowers shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided , further , that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.         SECTION 2.16. Break  Funding  Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a                                            70





 






result  of  an  Event  of  Default  or  as  a  result  of  any  prepayment  pursuant  to  Section 2.11 ),  (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(a) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower Representative pursuant to Section 2.19  or 9.02(e) , then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Eurodollar Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Eurodollar Loan (but not the Applicable Rate applicable thereto), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurodollar Loan), over  (ii) the  amount  of  interest  which  would  accrue  on  such  principal  amount  for  such  period  at  the interest  rate  which  such  Lender  would  bid  were  it  to  bid,  at  the  commencement  of  such  period,  for deposits in Dollars of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or  amounts  that  such  Lender  is  entitled  to  receive pursuant to this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.        SECTION 2.17. Taxes .         (a)   Payments  Free  of  Taxes . Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an  applicable  Withholding  Agent)  requires  the  deduction  or  withholding  of  any  Tax  from  any  such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction  or  withholding  and  shall  timely  pay  the  full  amount  deducted  or  withheld  to  the  relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17 ) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.         (b)   Payment  of  Other  Taxes  by  the  Borrowers . The relevant Borrower shall timely pay to the relevant  Governmental  Authority  in  accordance  with applicable  law,  or  at  the  option  of  the Administrative Agent timely reimburse it for, Other Taxes.        (c)    Evidence  of  Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.         (d)   Indemnification   by   the   Loan   Parties .  The  Loan  Parties  shall  jointly  and  severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient  and  any  reasonable  expenses  arising  therefrom or with respect thereto, whether or not such                                            71





 






Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the relevant 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.        (e)    Indemnification   by   the   Lenders .  Each  Lender  shall  severally  indemnify  the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent  for  such  Indemnified  Taxes  and  without  limiting  the  obligation  of  the  Loan  Parties  to  do  so), (ii) any  Taxes  attributable  to  such  Lender’s  failure  to  comply  with  the  provisions  of  Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e) .        (f)    Status of Lenders .               (i)    Any Lender that is entitled to an exemption from or reduction of withholding Tax       with respect to payments made under any Loan Document shall deliver to the Borrowers and the       Administrative  Agent,  at  the  time  or  times  reasonably  requested  by  the  Borrowers  or  the       Administrative  Agent,  such  properly  completed  and  executed  documentation  reasonably       requested by the Borrowers or the Administrative Agent as will permit such payments to be made       without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably       requested by the Borrowers or the Administrative Agent, shall deliver such other documentation       prescribed  by  applicable  law  or reasonably requested  by  the  Borrowers  or  the  Administrative        Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such        Lender is subject to backup withholding or information reporting requirements and to comply        with any such information reporting requirements. Notwithstanding anything to the contrary in        the preceding two sentences, the completion, execution and submission of such documentation        (other than such documentation set forth in Section 2.17(f)(ii)(A) , (ii)(B)  and (ii)(D)  below) shall        not be required if in the Lender’s reasonable judgment such completion, execution or submission        would subject such Lender to any material unreimbursed  cost  or  expense  or  would  materially       prejudice the legal or commercial position of such Lender.               (ii)   Without limiting the generality of the foregoing, in the event that any Borrower       is a U.S. Person:               (iii)  any  Lender  that  is  a  U.S. Person  shall  deliver  to such  Borrower  and  the        Administrative Agent on or prior to the date on which such Lender becomes a Lender under this        Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the        Administrative Agent), executed copies of IRS Form W-9 (or any successor form) certifying that        such Lender is exempt from U.S. Federal backup withholding tax;               (iv)   any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to        such 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                                            72





 






 Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the  Administrative Agent), whichever of the following is applicable;                (A)   in the case of a Foreign Lender claiming the benefits of an income tax        treaty to which the United States is a party (x) with respect to payments of interest under        any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E        (or  any  applicable  successor  form)  establishing  an exemption  from,  or  reduction  of,        U.S. Federal  withholding  Tax  pursuant  to  the  “interest”  article  of  such  tax  treaty  and        (y) with  respect  to  any  other  applicable  payments  under  any  Loan  Document,  IRS        Form W-8BEN or IRS Form W-8BEN-E (or any applicable successor form) establishing        an  exemption  from,  or  reduction  of,  U.S. Federal  withholding  Tax  pursuant  to  the        “business profits” or “other income” article of such tax treaty;                (B)   in the case of a Foreign Lender claiming that its extension of credit will        generate U.S. effectively connected income, executed copies of IRS Form W-8ECI;                (C)   in the case of a Foreign Lender claiming the benefits of the exemption        for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in        the form of Exhibit F-1  to the effect that such Foreign Lender is not a “bank” within the        meaning  of  Section 881(c)(3)(A)  of  the  Code,  a  “10 percent  shareholder”  of  such        Borrower  within  the  meaning  of  Section 881(c)(3)(B)  of  the  Code,  or  a  “controlled        foreign  corporation”  described  in  Section 881(c)(3)(C)  of  the  Code  (a  “U.S. Tax        Compliance   Certificate ”) and (y) executed copies of IRS Form W-8BEN or IRS  Form        W-8BEN-E (or any applicable successor form); or                (D)   to the extent a Foreign Lender is not the beneficial  owner,  executed        copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN        or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of        Exhibit F-2   or  Exhibit F-3 ,  IRS  Form W-9,  and/or  other  certification  documents  from        each beneficial owner, as applicable (including any applicable successor form); provided        that if the Foreign Lender is a partnership and one or more direct or indirect partners of        such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender        may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4        on behalf of each such direct and indirect partner;         (v)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to  such Borrower and the Administrative Agent (in such number of copies as shall be requested by  the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the  Administrative Agent), executed copies of any other form prescribed by applicable law as a basis  for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed,  together  with  such  supplementary  documentation  as  may  be  prescribed  by  applicable  law  to permit such Borrower or the Administrative Agent to  determine  the  withholding  or  deduction  required to be made; and         (vi)   if a payment made to a Lender under any Loan Document would be subject to  U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the  applicable reporting requirements of FATCA (including those contained in Section 1471(b) or  1472(b)  of  the  Code,  as  applicable),  such  Lender  shall  deliver  to  such  Borrower  and  the  Administrative Agent at the time or times prescribed by law and at such time or times reasonably  requested  by  such  Borrower  or  the  Administrative  Agent  such  documentation  prescribed  by                                      73





 






       applicable  law  (including  as  prescribed  by  Section 1471(b)(3)(C)(i)  of  the  Code)  and  such        additional documentation reasonably requested by such Borrower or the Administrative Agent as        may  be  necessary  for  such  Borrower  and  the  Administrative  Agent  to  comply  with  their        obligations under FATCA and to determine that such Lender has complied with such Lender’s        obligations under FATCA or to determine the amount to deduct and withhold from such payment.        Solely for purposes of this clause (D) , “FATCA ” shall include any amendments made to FATCA        after the date of this Agreement.         Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.         (g)   Treatment  of  Certain  Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17  (including by the payment of additional amounts pursuant to this Section 2.17 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17  with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g)  (plus  any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding  anything  to  the  contrary  in  this  paragraph (g) ,  in  no  event  will  the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.         (h)   Survival . Each party’s obligations under this Section 2.17  shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.         (i)   Defined   Terms .  For  purposes  of  this  Section 2.17 ,  the  term  “Lender ”  includes  each Issuing Bank and the term “applicable law” includes FATCA.        SECTION 2.18. Payments   Generally;   Allocation  of  Proceeds;  Pro  Rata  Treatment;  Sharing  of Set-offs .         (a)   The  Borrowers  shall  make  each  payment  required  to be  made  by  them  hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15 ,  2.16   or  2.17 ,  or  otherwise)  prior  to  4:00 p.m.,  Chicago  time,  on  the  date  when  due,  in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 10 South Dearborn Street, Floor L2, Chicago, Illinois, or to the account designated by Administrative Agent, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15 , 2.16 ,                                            74





 






2.17   and  9.03   shall  be  made  directly  to  the  Persons  entitled  thereto.  The  Administrative  Agent  shall distribute  any  such  payments  received  by  it  for  the  account  of  any  other  Person  to  the  appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall accrue and be payable for the period of such extension. All payments hereunder shall be made in Dollars.        (b)    Any proceeds of Collateral received by the Administrative  Agent  (i)  not  constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11 ) or (C) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b) ) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied, subject to the terms of the ABL/Term Loan Intercreditor Agreement, ratably first , to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and the Issuing Bank from the Borrowers (other than in connection with Banking Services Obligations or Swap Agreement Obligations), second , to pay any fees, indemnities, or expense  reimbursements  then  due  to  the  Lenders  from  the  Borrowers  (other  than  in  connection  with Banking Services Obligations or Swap Agreement Obligations), third , to pay interest due in respect of the Overadvances and Protective Advances, fourth , to pay the principal of the Overadvances and Protective Advances,  fifth , to pay interest then due and payable on the Loans  (other  than  the  Overadvances  and Protective Advances) ratably, sixth , to prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements and to pay any amounts owing with respect to Swap  Agreement  Obligations  up  to  and  including  the amount  most  recently  provided  to  the Administrative  Agent  pursuant  to  Section 2.22 ,  for  which  Reserves  have  been  established  ratably, seventh , to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations, eighth , to payment of any amounts owing with respect to Banking Services Obligations and Swap Agreement Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 , and to the  extent  not  paid  pursuant  to  clause  sixth  above,  and  ninth ,  to  the  payment  of  any  other  Secured Obligation  due  to  the  Administrative  Agent  or  any  Lender  by  the  Borrowers.  Notwithstanding  the foregoing amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party. Notwithstanding anything to the  contrary  contained  in  this  Agreement,  unless so directed by the Borrower Representative, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable thereto or (b) in the event, and only to the  extent,  that  there  are  no  outstanding  ABR  Loans  of  the  same  Class  and,  in  any  such  event,  the Borrowers  shall  pay  the  break  funding  payment  required  in  accordance  with  Section 2.16 .  The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.         (c)   At  the  election  of  the  Administrative  Agent,  all  payments  of  principal,  interest,  LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for  fees,  costs  and  expenses  pursuant  to  Section 9.03 ),  and  other  sums  payable  under  the  Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03  or a deemed request as provided in this Section or  may  be  deducted  from  any  deposit  account  of  any  Borrower  maintained  with  the Administrative  Agent  (and  the  Administrative  Agent will  provide  reasonably  prompt  notice  of  such deduction to the Borrower Representative, provided  that failure to provide such notice shall not limit the ability of the Administrative Agent to make such deduction). The Borrowers hereby irrevocably authorize                                            75





 






(i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees  that  all  such  amounts  charged  shall  constitute  Loans  (including  Swingline  Loans  and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03 ) and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 , 2.04  or 2.05 , as applicable, and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of  principal,  interest  and  fees  as  it  becomes  due  hereunder  or  any  other  amount  due  under  the  Loan Documents.         (d)   If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater  proportion  of  the  aggregate  amount  of  its  Loans  and  participations  in  LC  Disbursements  and Swingline Loans and accrued interest thereon than the proportion received by any other similarly situated Lender,  then  the  Lender  receiving  such  greater  proportion  shall  purchase  (for  cash  at  face  value) participations in the Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements and Swingline Loans; 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 paragraph shall not be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender  as  consideration  for  the  assignment  of  or  sale  of  a  participation  in  any  of  its  Loans  or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrowers  or  any  Subsidiary  or  Affiliate  thereof  (as  to  which  the  provisions  of  this  paragraph  shall apply). Each 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 such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.         (e)   Unless  the  Administrative  Agent  shall  have  received  notice  from  the  Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of  the  Lenders  or  the  Issuing  Bank  hereunder  that  the  Borrowers  will  not  make  such  payment,  the Administrative  Agent  may  assume  that  the  Borrowers have  made  such  payment  on  such  date  in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 NYFRB Rate and a rate determined  by  the  Administrative  Agent  in  accordance  with  banking  industry  rules  on  interbank compensation.         (f)   If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any  amounts  thereafter  received  by  the  Administrative  Agent  for  the  account  of  such  Lender  for  the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any  such  amounts  in  a  segregated  account  over  which  the  Administrative  Agent  shall  have  exclusive                                            76





 






control as cash collateral for, and application to, any future funding obligations of such Lender under any such  Section;  in  the  case  of  each  of  clauses (i)  and  (ii)  above,  in  any  order  as  determined  by  the Administrative Agent in its discretion.        (g)    The Administrative Agent may from time to time provide the Borrowers with account statements  or  invoices  with  respect  to  any  of  the  Secured  Obligations  (the  “Statements ”).  The Administrative Agent is under no duty or obligation to provide Statements, which, if provided, will be solely for the Borrowers’ convenience. Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrowers pay the full amount indicated on a Statement on or before the due date indicated on such Statement, the Borrowers  shall  not  be  in  default  of  payment  with  respect  to  the  billing  period  indicated  on  such Statement;  provided ,  that  acceptance  by  the  Administrative  Agent,  on  behalf  of  the  Lenders,  of  any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.        SECTION 2.19. Mitigation Obligations; Replacement of Lenders .         (a)   If any Lender requests compensation under Section 2.15 , or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17 , then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder  to  another  of  its  offices,  branches  or  affiliates,  if,  in  the  judgment  of  such  Lender,  such designation  or  assignment  (i) would  eliminate  or  reduce  amounts  payable  pursuant  to  Section 2.15   or 2.17 , as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all  reasonable  costs  and  expenses incurred by any Lender in connection with any such designation or assignment.         (b)   If (i) any Lender requests compensation under Section 2.15 , (ii) any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17  or (iii) any Lender becomes a Defaulting Lender, then the Company 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 Section 9.04 ), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15  or 2.17 ) and obligations under the Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided  that (i) the Company shall have received the prior written consent of the Administrative Agent (and if a Commitment is being assigned, each Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the  outstanding  principal  of  its  Loans  and  participations  in  LC  Disbursements  and  Swingline  Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15  or payments required to be made pursuant to Section 2.17 , such assignment will result in a reduction  in  such  compensation  or  payments.  A  Lender  shall  not  be  required  to  make  any  such assignment  and  delegation  if,  prior  thereto,  as  a  result  of  a  waiver  by  such  Lender  or  otherwise,  the circumstances  entitling  the  Company  to  require  such  assignment  and  delegation  cease  to  apply.  Each party hereto agrees that (x) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower Representative, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by                                            77





 






reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (y) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided  that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably  requested  by  the  applicable  Lender,  provided   that  any  such  documents  shall  be  without recourse to or warranty by the parties thereto.         SECTION 2.20. Defaulting   Lenders . Notwithstanding any provision of this Agreement to  the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:        (a)    fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a) ;         (b)   any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to  Section 2.18(b)   or  otherwise)  or  received  by  the  Administrative  Agent  from  a  Defaulting  Lender pursuant  to  Section 9.08   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 such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third , to cash collateralize the Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with this Section; fourth , as the Borrower Representative may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans  under  this  Agreement  and  (y)  cash  collateralize  the  Issuing  Bank’s  future  LC  Exposure  with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth , to the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth , to such Defaulting Lender or as otherwise directed  by  a  court  of  competent  jurisdiction;  provided   that  if  (x)  such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02  were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause  (d)  below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;                                            78





 






       (c)   such Defaulting Lender shall not have the right to vote on any issue on which voting is required  (other  than  to  the  extent  expressly  provided  in  Section 9.02(b) )  and  the  Commitment  and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02 ) or under any other Loan Document; provided , that, except as otherwise provided in Section 9.02 , this clause (b)  shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;        (d)    if any Swingline Exposure or LC Exposure exists at  the  time  such  Lender  becomes  a Defaulting Lender then:               (i)    all or any part of the Swingline Exposure and LC Exposure of such Defaulting       Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective       Applicable Percentages but only (x) to the extent that the conditions set forth in Section 4.02  are       satisfied at the time of such reallocation (and, unless  the  Borrower  Representative  shall  have       otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have       represented and warranted that such conditions are satisfied at such time) and (y) to the extent       that  such  reallocation  does  not,  as  to  any  non-Defaulting  Lender,  cause  such  non-Defaulting       Lender’s Revolving Exposure and to exceed its Commitment;               (ii)   if the reallocation described in clause (i)  above cannot, or can only partially, be        effected, the Borrowers shall within one (1) Business Day following notice by the Administrative        Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit        of the relevant Issuing Banks only the Borrowers’ obligations corresponding to such Defaulting        Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i)  above)        in accordance with the procedures set forth in Section 2.06(j)  for so long as such LC Exposure is        outstanding;               (iii)  if the Borrowers cash collateralize any portion of such Defaulting Lender’s LC       Exposure pursuant to clause (ii)  above, the Borrowers shall not be required to pay any fees to        such Defaulting Lender pursuant to Section 2.12(b)  with respect to such Defaulting Lender’s LC        Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;               (iv)   if the LC Exposure of the non-Defaulting Lenders is  reallocated  pursuant  to        clause (i)  above,  then  the  fees  payable  to  the  Lenders  pursuant  to  Section 2.12(a)   and        Section 2.12(b)  shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable       Percentages; and               (v)    if  all  or  any  portion  of  such  Defaulting  Lender’s LC  Exposure  is  neither       reallocated nor cash collateralized pursuant to clause (i)  or (ii)  above, then, without prejudice to        any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees       payable under Section 2.12(b)  with respect to such Defaulting Lender’s LC Exposure shall be       payable to the relevant Issuing Banks until and to the extent that such LC Exposure is reallocated       and/or cash collateralized; and        (e)    so long as such Lender is a Defaulting Lender, the Issuing Banks shall not be required to issue, amend, renew, extend or increase any Letter of Credit, unless it is satisfied that such Defaulting Lender’s  then  outstanding  LC  Exposure  will  be  100% covered  by  the  Commitments  of  the non-Defaulting  Lenders  and/or  cash  collateral  will be  provided  by  the  Borrowers  in  accordance  with Section 2.20(d) ,  and  LC  Exposure related to any newly issued or increased  Letter  of  Credit  shall  be                                            79





 






allocated  among  non-Defaulting  Lenders  in  a  manner consistent  with  Section 2.20(d)(i)   (and  such Defaulting Lender shall not participate therein).         If  (i) a  Bankruptcy  Event  or  a  Bail-In  Action  with respect  to  a  Lender  Parent  shall  occur following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder.        In the event that the Administrative Agent, the Borrower Representative and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other  Lenders  (other  than  Swingline  Loans)  as  the  Administrative  Agent  shall  determine  may  be necessary in order for such Lender to hold such Loans  in  accordance  with  its  Applicable  Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided  that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company 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’s having been a Defaulting Lender.         SECTION 2.21. Returned   Payments .  If  after  receipt  of  any  payment  which  is  applied to  the payment of all or any part of the Obligations (including a payment effected through exercise of a right of setoff), the Administrative Agent or any Lender is for any reason compelled to surrender such payment or proceeds  to  any  Person  because  such  payment  or  application  of  proceeds  is  invalidated,  declared fraudulent,  set  aside,  determined  to  be  void  or  voidable  as  a  preference,  impermissible  setoff,  or  a diversion of trust funds, or for any other reason (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion), then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Administrative Agent or such Lender. The provisions of this Section 2.21  shall be and remain effective notwithstanding any contrary  action  which  may  have  been taken  by  the  Administrative  Agent  or  any  Lender  in reliance  upon  such  payment  or  application  of proceeds. The provisions of this Section 2.21  shall survive the termination of this Agreement.         SECTION 2.22. Banking   Services   and   Swap   Agreements .  Each  Lender  or  Affiliate  thereof providing Banking Services (excluding Lease Financing) for, or having Swap Agreements with, any Loan Party or any Subsidiary or Affiliate of a Loan Party shall deliver to the Administrative Agent, promptly after entering into such Banking Services or Swap Agreements, written notice setting forth the aggregate amount of all Banking Services Obligations and Swap Agreement Obligations of such Loan Party or Subsidiary or Affiliate thereof to such Lender or Affiliate (whether matured or unmatured, absolute or contingent). In addition, each such Lender or Affiliate thereof shall deliver to the Administrative Agent, from time to time after a significant change therein or upon a request therefor, a summary of the amounts due or to become due in respect of such Banking Services Obligations and Swap Agreement Obligations. The  most  recent  information  provided  to  the  Administrative  Agent  shall  be  used  in  determining  the amounts  to  be  applied  in  respect  of  such  Banking  Services  Obligations  and/or  Swap  Agreement Obligations pursuant to Section 2.18(b)  and which tier of the waterfall, contained in Section 2.18(b) , such Banking Services Obligations and/or Swap Agreement Obligations will be placed.                                             80





 






                                      ARTICLE III                                Representations and Warranties         Each Loan Party represents and warrants to the Lenders that:         SECTION 3.01. Organization;   Powers . Each Loan Party and its Material Subsidiaries is duly organized or formed, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing (to the extent such concept is applicable) in, every jurisdiction where such qualification is required.        SECTION 3.02. Authorization;  Enforceability . The Transactions are within each Loan Party’s organizational  powers  and  have  been  duly  authorized  by  all  necessary  organizational  actions  and,  if required, actions by equity holders. The Loan Documents to which each Loan Party is a party have been duly executed and delivered by such Loan Party and constitute a legal, valid and binding obligation of such Loan Party, 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.         SECTION 3.03. Governmental Approvals; No Conflicts . The Transactions (a) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except for filings  necessary  to  perfect  Liens  created  pursuant to the Loan Documents, (b) will not violate in any material  respect  any  applicable  law  or  regulation  or  the  charter,  by-laws  or  other  organizational documents  of  any  Borrower  or  any  of  the  Material  Subsidiaries  or  any  order  of  any  Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding  upon  any  Borrower  or  any  of  the  Material  Subsidiaries  or  its  assets,  or  give  rise  to  a  right thereunder to require any payment to be made by any  Borrower  or  any  of  the  Material  Subsidiaries, except, in the case of this clause  (c) , that could not reasonably be expected to result in a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of any Borrower or any of the Material Subsidiaries, other than Liens created under the Loan Documents.         SECTION 3.04. Financial Condition; No Material Adverse Change .         (a)   The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements  of  income,  stockholders  equity  and  cash flows  (i)  as  of  and  for  the  fiscal  year  ended August 25, 2018 reported on by Deloitte & Touche LLP, independent public accountants and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended May 25, 2019, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to the  year-end  audit  adjustments  and  the  absence  of footnotes in the case of statements referred to in clause (ii)  of the immediately preceding sentence.         (b)   The Company has heretofore furnished to the Lenders its pro forma consolidated balance sheet  and  related  pro  forma  consolidated  statement of  income  for  the  twelve-month  period  ended August 25, 2018, prepared giving effect to the Transactions as if the Transactions had occurred on such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).  Such  pro  forma  consolidated  balance  sheet and  related  pro  forma  consolidated  statement  of                                            81





 






income  (i)  has  been  prepared  by  the  Company  in  good  faith,  based  on  assumptions  believed  by  the Company to be reasonable at the time such assumptions were made and (iii) presents fairly, in all material respects, the pro forma financial position of the Company and its consolidated Subsidiaries as of such date as if the Transactions had occurred on such date.         (c)   Since August 25, 2018, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of the Company and its Subsidiaries, taken as a whole.        SECTION 3.05. Properties .         (a)   Except  for  Liens  permitted  pursuant  to  Section 6.02 ,  each  of  the  Company  and  its Material Subsidiaries has good title to, or (to the knowledge of the Company) valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do  not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.         (b)   Each of the Company and its Subsidiaries owns, or is  licensed  to  use,  all  trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Company and its Subsidiaries does not, to their knowledge, infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.         SECTION 3.06. Litigation and Environmental Matters .        (a)    There are no actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Borrower, threatened against or affecting the Company or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the  aggregate,  to  result  in  a  Material  Adverse  Effect  or  (ii) that  involve  this  Agreement  or  the Transactions. There are no labor controversies pending against or, to the knowledge of the Company, threatened  against  or  affecting  the  Company  or  any of  its  Subsidiaries  (i) which  could  reasonably  be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) that involve this Agreement or the Transactions.         (b)   Except with respect to any other matters that, individually or in the aggregate, could not reasonably  be  expected  to  result  in  a  Material  Adverse  Effect,  neither  the  Company  nor  any  of  its Subsidiaries (i) 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, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.         SECTION 3.07. Compliance  with  Laws  and  Agreements;  No  Default . Each of the Company and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.         SECTION 3.08. Investment Company Status . Neither the Company nor any of its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.                                             82





 






       SECTION 3.09. Taxes . Each of the Company and its Subsidiaries has timely filed or caused to be filed all federal income Tax returns and all other material Tax returns and reports required to have been filed and has paid or caused to be paid or made a provision for the payment of all federal income Taxes and all other material Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves 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.         SECTION 3.10. ERISA . No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.         SECTION 3.11. Disclosure .  As  of  the  Effective  Date,  each  Loan  Party  has  disclosed  to  the Lenders all material agreements, instruments and corporate or other restrictions to which it or any of its subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. All written information, other than any projections,  estimates,  forecasts  and  other  forward-looking  information  and  information  of  a  general economic or industry-specific nature, furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent or any Lender on or prior to the Effective Date, when taken as a whole and after giving  effect  to  all  supplements  and  updates  thereto,  did  not  (when  furnished)  contain  any  untrue statement  of  material  fact  or  omit  to  state  a  material  fact  necessary  in  order  to  make  the  statements contained therein not materially misleading (when taken as a whole and after giving effect to all such supplements and updates thereto) in light of the circumstances under which such statements were made; provided  that, with respect to the Projections furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent or any Lender on or prior to the Effective Date pursuant to or in connection with  the  negotiation  of  this  Agreement  or  any  other  Loan  Document  or  included  therein  (the “Projections ”), the Company represents only that such information was prepared in good faith based upon assumptions believed by the Company to be reasonable at the time prepared (it being understood by the Administrative Agent and the Lenders that any such Projections are as to future events and are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company or the Subsidiaries, that no assurances can be given that such Projections will be realized and that actual results during the period or periods covered by any such Projections may differ materially from the projected results contained therein and that such differences may be material).         SECTION 3.12. Material   Agreements .  No  Loan  Party  is  in  default  in  the  performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any material agreement to which it is a party or (ii) any agreement or instrument evidencing or governing Material Indebtedness, in any such case of clause  (i)  or (ii)  above, which default could not reasonably be expected to have a Material Adverse Effect.         SECTION 3.13. Margin  Stock . No Loan Party is engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any Borrowing or Letter of Credit hereunder will be used to buy or carry any Margin Stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the  assets  (either  of  any  Loan  Party  individually  or  of  the  Loan  Parties  and  their  Subsidiaries  on  a consolidated basis) will be Margin Stock.        SECTION 3.14. Liens .  There  are  no  Liens  on  any  of  the  real  or  personal  properties  of  the Company or any Subsidiary except for Liens permitted by Section 6.02 .                                            83





 






       SECTION 3.15. Capitalization  and  Subsidiaries . As of the Amendment  No.  1  Effective Date, Schedule 3.15  sets forth (a) a correct and complete list of the name and relationship to the Company of each  Subsidiary,  (b)  a  true  and  complete  listing  of  each  class  of  each  Borrower’s  (other  than  the Company’s) issued and outstanding Equity Interests, all of which Equity Interests are owned beneficially and of record by the Persons identified on Schedule 3.15 , and (c) the type of entity of the Company and each Subsidiary.        SECTION 3.16. No  Burdensome  Restrictions . On the date hereof, no Borrower is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 6.11 .         SECTION 3.17. Solvency .        (a)    Immediately after the consummation of the Transactions to occur on the Effective Date and the making of each Loan on the Effective Date and the application of the proceeds of such Loans, (i) the sum of the liabilities of the Company and its Subsidiaries, taken as a whole, shall not exceed the present fair saleable value of the assets of the Company and its Subsidiaries, taken as a whole; (ii) the capital of the Company and its Subsidiaries, taken as a whole, shall not be unreasonably small in relation to the business of the Company and its Subsidiaries, taken as a whole, contemplated on the date hereof and (iii) the Company and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents  the  amount  that  can  reasonably  be  expected  to  become  an  actual  or  matured  liability (irrespective  of  whether  such  contingent  liabilities  meet  the  criteria  for  accrual  under  Statement  of Financial Accounting Standard No. 5).        (b)    The Company does not intend to, nor will it permit any of its Subsidiaries to, and the Company does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.        SECTION 3.18. Insurance . Schedule 3.18  sets forth a description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Amendment  No.  1  Effective Date. As of the Amendment  No.  1  Effective Date, all premiums in respect of such insurance due and payable on or prior to the Amendment  No.  1  Effective Date have been paid. Each Borrower maintains, and has caused each Subsidiary to maintain, with financially sound and reputable insurance companies, insurance on all their real and personal property in such amounts, subject to such deductibles and self-insurance retentions and covering such properties and risks as are adequate and customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.         SECTION 3.19. Security  Interest  in  Collateral . The Collateral Documents, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the  Secured  Parties,  a  valid  and  enforceable  security  interest  in  the  Collateral  covered  thereby  and (i) when  the  Collateral  constituting  certificated  securities  (as  defined  in  the  UCC)  is  delivered  to  the Administrative Agent, together with instruments of transfer duly endorsed in blank, the Liens under the Collateral Documents will constitute a fully perfected security interest in all right, title and interest of the respective Loan Parties thereunder in such Collateral, prior and superior in right to any other Person, except for Liens permitted by Section 6.02  and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Collateral Documents will constitute a fully perfected security interest in all right, title and interest of the respective Loan Parties in                                            84





 






the remaining Collateral to the extent perfection can be obtained by filing UCC financing statements, prior and superior to the rights of any other Person, except for Liens permitted by Section 6.02 .         SECTION 3.20. Employment  Matters . As of the Effective Date, there are no strikes, lockouts or slowdowns against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened, that, in the aggregate, could reasonably be expected to result in a Material Adverse Effect. The hours worked by and payments made to employees of the Loan Parties and their Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters in a manner that, in the aggregate, could reasonably be expected to result in a Material Adverse Effect. All payments due from any Loan Party or any Subsidiary, or for which any claim may be made against any Loan Party or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Loan Party or such Subsidiary, except those that could not reasonably be expected to have a Material Adverse Effect.         SECTION 3.21. Anti-Corruption   Laws   and   Sanctions .  The  Company  has  implemented  and maintains in effect policies and procedures reasonably designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and to the knowledge of the Company its officers, directors, employees and agents that will act in any capacity in connection with or benefit from the  credit  facilities  established  hereby,  are  in  compliance  with  Anti-Corruption  Laws  and  applicable Sanctions in all material respects. None of (a) the Company, any Subsidiary or to the knowledge of the Company  or  such  Subsidiary  any  of  their  respective directors,  officers  or  employees,  or  (b)  to  the knowledge of the Company, any agent of the Company or any Subsidiary that will act in any capacity in connection  with  or  benefit  from  the  credit  facility  established  hereby,  is  a  Sanctioned  Person.  No Borrowing or Letter of Credit, use of proceeds or other Transactions will violate any Anti-Corruption Law or applicable Sanctions.        SECTION 3.22. EEA Financial Institutions . No Loan Party is an EEA Financial Institution.         SECTION 3.23. Use  of  Proceeds . The proceeds of the Loans have been used and will be used, whether directly or indirectly as set forth in Section 5.08 .         SECTION 3.24. Plan Assets; Prohibited Transactions . No Loan Party or any of its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), and neither the execution, delivery nor performance of the transactions contemplated under this Agreement, including the making of any Loan and the issuance of any Letter of Credit hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.                                        ARTICLE IV                                         Conditions         SECTION 4.01. Effective Date . The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02 ):         (a)   Credit  Agreement  and  Other  Loan  Documents . The Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of  such  party  or  (B) written  evidence  satisfactory to  the  Administrative  Agent  (which  may  include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has                                            85





 






signed a counterpart of this Agreement and (ii) each of the other documents, instruments, legal opinions and other agreements listed on Exhibit D  that are required to be delivered on or prior to the date hereof, all in form and substance satisfactory to the Administrative Agent and its counsel.         (b)   Funding Account . The Administrative Agent shall have received a notice setting forth the deposit  account(s)  of  the  Borrowers  (the  “Funding   Account ”)  to  which  the  Administrative  Agent  is authorized by the Borrowers to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.         (c)   Borrowing  Base  Certificate . The Administrative Agent shall have received an Aggregate Borrowing Base Certificate and a Borrowing Base Certificate for each Borrower, in each case, prepared as of the last day of the most recent month ended at least twenty (20) calendar days prior to the Effective Date.        (d)    Closing  Availability . After giving effect to all Borrowings to be made on the Effective Date, the issuance of any Letters of Credit on the Effective Date and the payment of all fees and expenses due hereunder, and with all of the Loan Parties’ indebtedness,  liabilities,  and  obligations  current,  the Aggregate Availability shall not be less than $38,500,000.        (e)    Fees  and  Expenses . All fees and expenses due and payable to the Administrative Agent, the Lenders and their respective Affiliates and required to be paid on or prior to the Effective Date shall have been paid or shall have been authorized to be deducted from the proceeds of the initial Loans, so long as any such fees or expenses not expressly set forth in the fee letters entered into by the Company in connection with the Transactions have been invoiced not less than two (2) Business Days prior to the Effective Date (except as otherwise reasonably agreed by the Company).         (f)   Patriot   Act,   Etc.   At  least  three  (3)  Business  Days  prior  to  the  Effective  Date,  the Administrative Agent and the Lead Arranger shall have received all documentation and other information about the Company and the other Loan Parties as shall have been reasonably requested in writing by either the Administrative Agent or by the Lead Arranger at least ten (10) days prior to the Effective Date and  required  by  U.S. regulatory  authorities  under  applicable  “know  your  customer”  and  anti-money laundering rules and regulations, including the Patriot Act.        (g)    Other  Documents . The Administrative Agent shall have received such other documents and information as the Administrative Agent, the Issuing Bank, any Lender or their respective counsel may have reasonably requested.         The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.         SECTION 4.02. Each  Other  Credit  Event . The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Banks to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:         (a)   The representations and warranties of the Loan Parties set forth in the Loan Documents shall  be  true  and  correct  in  all  material  respects (provided   that  any  representation  or  warranty  that  is qualified  by  materiality,  Material  Adverse  Effect  or  similar  language  shall  be  true  and  correct  in  all respects)  on  and  as  of  the  date  of  such  Borrowing  or  the  date  of  issuance,  amendment,  renewal  or extension  of  such  Letter  of  Credit,  as  applicable, except  to  the  extent  that  such  representations  and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material                                             86





 






respects (provided  that any representation or warranty that is qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects) as of such earlier date.         (b)   At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.         (c)   After giving effect to such Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, the Borrowers shall be in compliance with the Revolving Exposure Limitations.        Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Loan Parties on the date thereof as to the matters specified in paragraphs (a) , (b)  and (c)  of this Section.                                        ARTICLE V                                    Affirmative Covenants         Until the Commitments shall have expired or been terminated and the principal of and interest on each  Loan  and  all  fees  payable  hereunder  shall  have  been  paid  in  full  (other  than  Unliquidated Obligations  not  yet  due  and  payable  and  Obligations  expressly  stated  to  survive  such  payment  and termination) and all Letters of Credit shall have expired or terminated, in each case, without any pending draw  (or  shall  have  been  cash  collateralized  or  backstopped  pursuant  to  arrangements  reasonably satisfactory to the Administrative Agent), and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that:        SECTION 5.01. Financial   Statements;   Borrowing   Base   and   Other   Information .  The  Company will furnish to the Administrative Agent for distribution to each Lender:         (a)   within ninety (90) days after the end of each fiscal  year  of  the  Company,  its  audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal  year,  all  reported  on  by  Deloitte  &  Touche  LLP  or  other  independent  public  accountants  of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;        (b)    within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, its consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed  portion  of  the  fiscal  year,  setting  forth  in  each  case  in  comparative  form  the  figures  for  the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of a Financial Officer  as  presenting  fairly  in  all  material  respects  the financial  condition  and  results  of  operations  of  the  Company  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;                                             87





 






       (c)   [Intentionally Omitted];         (d)   concurrently with any delivery of financial statements under clause  (a)  or (b)  above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C (i) certifying, in the case of the financial statements delivered under clause  (b) , as presenting fairly in all material respects the financial condition and results of operations of the Company 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,  (ii)  certifying  as  to  whether  a  Default  has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be  taken  with  respect  thereto,  (iii) setting  forth reasonably  detailed  calculations  of  the  Fixed  Charge Coverage Ratio as of the last day of the most recently ended period of four (4) Fiscal Quarters (provided that the Fixed Charge Coverage Ratio shall only be tested for compliance purposes during an FCCR Test Period) and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04  and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;         (e)   within ninety (90) days after the end of each fiscal year of the Company, a copy of the plan and forecast of the Company and its Subsidiaries in the form previously provided to, and approved by, the Administrative Agent;         (f)   (i) as soon as available but in any event within twenty (20) days after the end of each fiscal quarter following the Effective Date (or, (x) during any Monthly Reporting Period, within twenty (20) days after the end of each calendar month following the Effective Date or (y) during any Weekly Reporting Period, by the Wednesday immediately following the end of each calendar week) and (ii) at such  other  times  as  may  be  necessary  to  re-determine  Aggregate  Availability  or  Availability  for  any Borrower or as may be reasonably requested by the Administrative Agent, as of the period then ended, an Aggregate Borrowing Base Certificate, together with a Borrowing Base Certificate for each Borrower, and supporting information in connection therewith, together with any additional reports with respect to the Aggregate Borrowing Base or the Borrowing Base of any Borrower as the Administrative Agent may reasonably request;        (g)    as soon as available but in any event within twenty (20) days of the end of each fiscal quarter (or, during any Monthly Reporting Period or Weekly Reporting Period, within twenty (20) days of the end of each calendar month), as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:               (i)    a detailed aging of the Borrowers’ Accounts, including  all  invoices  aged  by       invoice  date  and  due  date  (with  an  explanation  of  the  terms  offered),  prepared  in  a  manner       reasonably acceptable to the Administrative Agent, together with a summary specifying the name,       address, and balance due for each Account Debtor;               (ii)   a schedule detailing the Borrowers’ Inventory, in form reasonably satisfactory to       the  Administrative  Agent,  (1)  by  location  (showing U16  Inventory,  Inventory  in  transit,  any       Inventory located with a third party under any consignment, bailee arrangement, or warehouse       agreement), by class (raw material, work-in-process and finished goods), by product type, and by       volume on hand, which Inventory shall be valued at the lower of cost (determined on a first-in,       first-out basis) or market and adjusted for Reserves as the Administrative Agent has previously       indicated  to  the  Borrower  Representative  are  deemed  by  the  Administrative  Agent  to  be       appropriate,  and  (2)  including  a  report  of  any  variances  or  other  results  of  Inventory  counts       performed by the Borrowers since the last Inventory schedule (including information regarding                                            88





 






       sales  or  other  reductions,  additions,  returns,  credits  issued  by  Borrowers  and  complaints  and        claims made against the Borrowers);               (iii)  if a Monthly Reporting Period or Weekly Reporting Period is then in effect, a        worksheet of calculations prepared by the Borrowers to determine Eligible Accounts and Eligible        Inventory,  such  worksheets  detailing  the  Accounts  and  Inventory  excluded  from  Eligible        Accounts and Eligible Inventory and the reason for such exclusion; and               (iv)   a  reconciliation  of  the  Borrowers’  Accounts  and  Inventory  between  (A)  the        amounts  shown  in  the  Borrowers’  general  ledger  and financial  statements  and  the  reports        delivered  pursuant  to  clauses   (i)   and  (ii)   above  and  (B)  the  amounts  and  dates  shown  in  the        reports  delivered  pursuant  to  clauses   (i)   and  (ii)   above  and  the  Aggregate  Borrowing  Base        Certificate and the Borrowing Base Certificate of each Borrower delivered pursuant to clause (f)        above as of such date;         (h)   as soon as available but in any event within twenty (20) days of the end of each fiscal quarter (or, during any Monthly Reporting Period or Weekly Reporting Period, within twenty (20) days of the end of each calendar month) and at such other times as may be requested by the Administrative Agent, as of the period then ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file acceptable to the Administrative Agent;        (i)    as soon as available but in any event within twenty (20) days of the end of each fiscal year  of  the  Company,  and  at  such  other  times  as  may  be  requested  by  the  Administrative  Agent,  an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing  address  and  phone  number,  delivered  electronically  in  a  text  formatted  file  acceptable  to  the Administrative  Agent  and  certified  as  true  and  correct  by  a  Financial  Officer  of  the  Borrower Representative;        (j)    promptly upon the Administrative Agent’s reasonable request:               (i)    copies of invoices issued by the Borrowers in connection  with  any  Accounts,       credit memos, shipping and delivery documents, and other information related thereto;               (ii)   copies of purchase orders, invoices, and shipping and  delivery  documents  in       connection with any Inventory or Equipment purchased by any Loan Party; and               (iii)  a schedule detailing the balance of all intercompany accounts of the Loan Parties;        (k)    promptly  after  the  same  become  publicly  available,  copies  of  all  periodic  and  other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be; and        (l)    promptly  following  any  request  therefor,  (i)  such other  information  regarding  the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes  of  compliance  with  applicable  “know  your  customer”  and  anti-money  laundering  rules  and regulations, including the USA PATRIOT Act.                                             89





 






       Documents required to be delivered pursuant to this Section 5.01  may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided  that the Company shall notify (which may be by facsimile or through  Electronic  Systems)  the  Administrative Agent of the filing of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., soft copies) of such documents. 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 any Borrower with any such request by  a  Lender  for  delivery,  and  each  Lender  shall  be solely  responsible  for  timely  accessing  posted documents or requesting delivery of paper copies of such documents to it and maintaining its copies of such  documents.  Notwithstanding  anything  contained herein,  in  every  instance  the  Company  shall  be required to provide paper copies of the compliance certificates required by clause (d)  of this Section 5.01 to the Administrative Agent.         SECTION 5.02. Notices   of   Material   Events . The Company will furnish to the Administrative Agent (for distribution to each Lender) written notice  of  the  following,  promptly  after  a  Responsible Officer of the Company obtains actual knowledge thereof:         (a)   the occurrence of any Default;         (b)   the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Company or any Subsidiary thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;         (c)   any loss, damage, or destruction to the Collateral in the amount of $7,500,000 or more, whether or not covered by insurance;         (d)   any and all default notices received under or with respect to any leased location or public warehouse where Inventory constituting Collateral with a value in excess of $2,500,000 is located;         (e)   all  amendments  to  the  Term  Loan  Agreement,  together  with  a  copy  of  each  such amendment;         (f)   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; and        (g)    any other development that results in, or could reasonably  be  expected  to  result  in,  a Material Adverse Effect.        Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer or other executive officer of the Borrower Representative setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.         Information required to be delivered pursuant to clause (b) , (e) , (f)  and (g)  of this Section shall be deemed to have been delivered if such information, or one or more annual, quarterly, current or other reports  containing  such  information,  is  (i)  filed  for  public  availability  on  the  SEC’s  Electronic  Data Gathering and Retrieval System, (ii) posted on www.winnebagoind.com or at another website identified in  a  notice  from  the  Company  and  accessible  by  the Lenders  without  charge;  or  (iii)  posted  on  the Company’s behalf on an Internet or intranet website, if any, to which the Administrative Agent and the Lenders  have  access  (whether  a  commercial,  third-party  website  or  whether  sponsored  by  the                                             90





 






Administrative  Agent).  Information  required  to  be  delivered  pursuant  to  this  Section may  also  be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.         SECTION 5.03. Existence;  Conduct  of  Business . Each Loan Party will, and will cause each of its Material Subsidiaries to, (a) do or cause to be done all things necessary to preserve, renew and keep in full  force  and  effect  its  legal  existence  and  (b)  take,  or  cause  to  be  taken,  all  reasonable  actions  to preserve, renew and keep in full force and effect the rights, qualifications, licenses, permits, privileges, franchises,  governmental  authorizations  and  intellectual property rights material to the conduct of the business of the Company and its Subsidiaries, taken as a whole, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except, in the case of this clause  (b) , to the extent failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided  that, the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 .         SECTION 5.04. Payment   of   Obligations .  Each  Loan  Party  will,  and  will  cause  each  of  its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Loan Party or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.         SECTION 5.05. Maintenance   of   Properties .  Each  Loan  Party  will,  and  will  cause  each Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, except to the extent such failure could not reasonably be expected to have a Material Adverse Effect.         SECTION 5.06. Books  and  Records;  Inspection  Rights . The Loan Parties will, and will cause each of their Subsidiaries to, keep in all material respects proper books of record and account in which full, true and correct entries in all material respects in conformity, in all material respects, with GAAP and applicable law are made of all material dealings and material transactions in relation to its business and activities. The Loan Parties will, and will cause each of the Subsidiaries to, permit any representatives designated by the Administrative Agent, who may be accompanied by a Lender, upon no less than five (5)  Business  Days’  prior  written  notice  (provided   that  no  such  prior  written  notice  shall  be  required during the occurrence and continuance of an Event of Default) and at reasonable times during normal business  hours,  to  visit  and  inspect  its  properties,  to  examine  and  make  extracts  from  its  books  and records,  environmental  assessment  reports  and  Phase  I  or  Phase  II  studies,  and  to  discuss  its  affairs, finances and condition with its officers, all at such reasonable times and as often as reasonably requested; provided , that so long as no Event of Default has occurred and is continuing, the Loan Parties shall not be required to pay for any such inspection (but may be obligated reimburse the Administrative Agent for field exams and appraisals as provided in Sections 5.11  and 5.12  below). The Loan Parties acknowledge that the Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the Lenders Reports pertaining to the Loan Parties’ assets for internal use by the Administrative Agent and the Lenders. The Loan Parties and the Subsidiaries shall  have  no  obligation  to  discuss  or  disclose  to Administrative  Agent,  any  Lender,  or  any  of  their  officers,  directors,  employees  or  agents,  materials protected  by  attorney-client  privilege  (including  any  attorney  work  product)  materials  that  constitute non-financial trade secrets or non-financial proprietary information, or materials that the Loan Parties or any of the Subsidiaries may not disclose without violation of a confidentiality obligation binding upon it.        SECTION 5.07. Compliance  with  Laws  and  Material  Contractual  Obligations . Each Loan Party will, and will cause each Subsidiary to, (i) comply with all Requirements of Law applicable to it or its                                            91





 






property (including without limitation applicable Environmental Laws) and (ii) perform in all material respects its obligations under material agreements to which it is a party, except, in each case for clauses (i)  and (ii)  above, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each  Loan  Party  will  maintain  in  effect  and  enforce policies  and  procedures  designed  to  ensure  compliance by such Loan Party, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions in all material respects.         SECTION 5.08. Use of Proceeds . The proceeds of the Revolving Loans and the Letters of Credit will be used only to finance the Transaction Costs and to finance the working capital needs, and for general  corporate  purposes  (including  Restricted  Payments  and  Permitted  Acquisitions  as  permitted hereunder), of the Company and its Subsidiaries. No part of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. No Borrower will request any Borrowing or Letter of Credit, and no Borrower shall use, and each Borrower shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply  with  Sanctions,  or  (iii)  in  any  manner  that would  result  in  the  violation  of  any  Sanctions applicable to any party hereto.         SECTION 5.09. Insurance . Each Loan Party will, and will cause each Subsidiary to, maintain with  financially  sound  and  reputable  carriers  (a) insurance  in  such  amounts  and  against  such  risks (including, without limitation: loss or damage by fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption; and general liability) and such other hazards, as is customarily maintained by companies of established repute engaged in the same or similar businesses  operating  in  the  same  or  similar  locations  and  (b) all  insurance  required  pursuant  to  the Collateral Documents. The Borrowers will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance so maintained.        SECTION 5.10. Casualty   and   Condemnation .  The  Borrowers  will  (a) furnish  to  the Administrative Agent and the Lenders prompt written notice upon obtaining knowledge of any casualty or other insured damage to any Collateral in excess of $7,500,000 or the commencement of any action or proceeding for the taking of any Collateral or interest therein with a book value in excess of $7,500,000 under power of eminent domain or by condemnation or similar proceeding and (b) ensure that the Net Proceeds  of  any  such  event  (whether  in  the  form  of insurance  proceeds,  condemnation  awards  or otherwise) are collected and applied in accordance with the applicable provisions of this Agreement and the Collateral Documents.        SECTION 5.11. Appraisals . At any time that the Administrative Agent reasonably requests, each Loan  Party  will  permit  the  Administrative  Agent  to conduct  appraisals  or  updates  thereof  of  their Inventory with an appraiser engaged by the Administrative Agent, such appraisals and updates to include, without limitation, information required by any applicable Requirement of Law and to be conducted with reasonable prior notice and during normal business hours. Only one (1) such Inventory appraisal every other  calendar  year  shall  be  at  the  sole  expense  of  the  Loan  Parties;  provided   that  (i)  an  Inventory appraisal  may  be  conducted  during  any  calendar  year  at  the  sole  expense  of  the  Loan  Parties  if  the Aggregate Availability is less than $50,000,000 at any time during such calendar year, (ii) two (2) such Inventory appraisals per calendar year shall be at the sole expense of the Loan Parties if the Aggregate Availability is less than the greater of $16,500,000 and 10% of the Aggregate Commitment at any time                                            92





 






during such calendar year and (iii) during the occurrence and continuance of an Event of Default, there shall be no limitation on the number or frequency of appraisals that shall be at the sole expense of the Loan Parties.         SECTION 5.12. Field   Examinations .  At  any  time  that  the  Administrative  Agent  reasonably requests, each Loan Party will, and will cause each Subsidiary to, permit, upon reasonable prior notice and during normal business hours, the Administrative Agent to conduct a field examination to ensure adequacy of Collateral included in the Borrowing Bases and related reporting and control systems. For purposes of this Section 5.12 , it is understood and agreed that a single field examination may consist of examinations conducted at multiple relevant sites and involve one or more relevant Loan Parties and their assets. Only one (1) such field examinations per calendar year shall be at the sole expense of the Loan Parties; provided  that (i) two (2) such field examinations per calendar year shall be at the sole expense of the Loan Parties if the Aggregate Availability is less than the greater of $16,500,000 and 10% of the Aggregate  Commitment  at  any  time  during  such  calendar  year  and  (ii)  during  the  occurrence  and continuance of an Event of Default, there shall be no  limitation  on  the  number  or  frequency  of  field examinations that shall be at the sole expense of the Loan Parties.         SECTION 5.13. Accuracy   of   Information . The Loan Parties will ensure that any information, including financial statements or other documents, furnished to the Administrative Agent or the Lenders in  writing  in  connection  with  this  Agreement  or  any  other  Loan  Document  or  any  amendment  or modification hereof or thereof or waiver hereunder or thereunder contains no material misstatement of fact  or  omits  to  state  any  material  fact  necessary to  make  the  statements  therein,  in  the  light  of  the circumstances under which they were made, not misleading, and the furnishing of such information shall be deemed to be a representation and warranty by the Borrowers on the date thereof as to the matters specified  in  this  Section 5.13 ;  provided  that, with respect to projected financial information,  the  Loan Parties  will  only  ensure  that  such  information  was prepared  in  good  faith  based  upon  assumptions believed to be reasonable at the time.        SECTION 5.14. Additional Collateral; Further Assurances .         (a)   Within sixty (60) days (or such later date as may be agreed upon by the Administrative Agent in its reasonable discretion) after any wholly-owned Subsidiary qualifies as a Material Domestic Subsidiary pursuant to the definition of “Material  Domestic  Subsidiary ”, the Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall cause each such Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a joinder to the Security Agreement (in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions hereof and thereof, such delivery to be accompanied by requisite resolutions, other organizational documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel. Notwithstanding anything to the contrary in any Loan Document, (i) no Excluded Domestic Subsidiary or Excluded Foreign Subsidiary shall be required to be a Loan Party and (ii) no Collateral constituting fee-owned real property located in the State of New York shall secure any Commitments, Revolving Loans or Revolving Exposure.         (b)   Subject  the  terms,  limitations  and  exceptions  set forth  in  the  applicable  Collateral Documents and this Section 5.14(b) , each Loan Party will cause all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets and any real property that is not Material Real Property) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject in any case to Liens permitted by Section 6.02 . Without limiting the generality of the foregoing, and subject to the terms, limitations and                                            93





 






exceptions set forth in the applicable Collateral Documents, the Company (i) will cause the Applicable Pledge  Percentage  of  the  issued  and  outstanding  Equity  Interests  of  each  Pledge  Subsidiary  directly owned by the Company or any other Loan Party (other than Excluded Assets) to be subject at all times to a first priority perfected (subject in any case to Liens  permitted by Section 6.02 ) Lien in favor of the Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (ii) will deliver Mortgages and Mortgage Instruments with respect to Material Real Property owned by the Company or such Loan Party to the extent, and within such time period as is, reasonably  required  by  the  Administrative  Agent.  Notwithstanding  anything  to  the  contrary  in  this Section 5.14 , (i) no such Mortgage or Mortgage Instruments are required to be delivered hereunder until the date that is ninety (90) days (or such later date as may be agreed upon by the Administrative Agent in its reasonable discretion) after (A) the Effective Date, with respect to Material Real Property owned by the Company or any other Loan Party on the Effective Date or (B) the date of acquisition thereof, with respect to Material Real Property acquired by the Company or any other Loan Party after the Effective Date and (ii) no foreign pledge documentation in respect of the pledge of Equity Interests of a Pledge Subsidiary that is a Material Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, (B) to the extent the Administrative Agent or its counsel  determines  that  such  pledge  would  not  provide  material  credit  support  for  the  benefit  of  the Secured  Parties  pursuant  to  legally  valid,  binding and  enforceable  pledge  agreements,  and  (C) to  the extent the Company reasonably determines in its good faith judgment that such pledge would result in a material adverse tax consequence to the Company or any Subsidiary.         (c)   If, at any time after the Effective Date any Subsidiary of the Company that is not a Loan Party  shall  become  party  to  a  guaranty  of,  or  grant  a  Lien  on  any  assets  to  secure,  the  Term  Loan Obligations,  any  Subordinated  Indebtedness  or  any  other  Material  Indebtedness  of  a  Loan  Party,  the Company shall promptly notify the Administrative Agent thereof and, within ten (10) days thereof (or such later date as may be agreed upon by the Administrative Agent) cause such Subsidiary to comply with Section 5.14(a)  and (b) (but without giving effect to the 30-day grace periods provided therein).        (d)    Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01 , as applicable), which may be required by any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the terms, limitations, and exceptions set forth herein or in any Collateral Document, all at the expense of the Loan Parties, in each case to the extent required by, and subject to the limitations and exceptions of, this Agreement and the other Loan Documents.         (e)   If  any  material  assets  (other  than  Excluded  Assets  or  other  assets  not  required  to  be Collateral)  are  acquired  by  any  Loan  Party  after  the  Effective  Date  (other  than  assets  constituting Collateral under the applicable Collateral Documents that become subject to the Lien granted by the Loan Parties in favor of the Administrative Agent in support of all of the Secured Obligations upon acquisition thereof), the Borrower Representative will promptly (i) notify the Administrative Agent thereof and, if requested by the Administrative Agent or the Required Lenders, cause such assets to be subjected to a Lien  securing  the  Secured  Obligations  and  (ii)  take  such  actions  as  shall  be  necessary  or  reasonably requested  by  the  Administrative  Agent  to  grant  and perfect  such  Liens,  subject  to  clause   (f)   of  this Section, all at the expense of the Loan Parties, subject, however, to the terms, limitations and exceptions                                            94





 






set forth herein or in any Collateral Document; provided  that with respect to any Material Real Property acquired by the Company or any other Loan Party after the Effective Date (including in connection with a Permitted Acquisition), which property would not be automatically subject to any other Lien pursuant to an existing Collateral Document, no Mortgage or Mortgage Instrument shall be required to be delivered hereunder  prior  to  the  date  that  is  one  hundred  twenty  (120)  days  after  the  acquisition  thereof  as determined by the Borrower Representative (acting reasonably in good faith) (or such later date as may be agreed upon by the Administrative Agent in its reasonable discretion).        (f)    Notwithstanding  the  foregoing,  the  parties  hereto acknowledge  and  agree  that  (i)  in circumstances where the Administrative Agent reasonably determines that the cost or effort of obtaining or  perfecting  a  security  interest  in  any  asset  that  constitutes  Collateral  is  excessive  in  relation  to  the benefit afforded to the Secured Parties thereby, the Administrative Agent may exclude such Collateral from the creation and perfection requirements set forth in this Agreement and the other Loan Documents and (ii) the Administrative Agent may grant extensions of time for the creation or perfection of Liens in particular property (including extensions of time beyond the Effective Date) where it determines that such creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other Loan Document.                                        ARTICLE VI                                     Negative Covenants         Until the Commitments shall have expired or been terminated and the principal of and interest on each  Loan  and  all  fees  payable  hereunder  shall  have  been  paid  in  full  (other  than  Unliquidated Obligations  not  yet  due  and  payable  and  Obligations  expressly  stated  to  survive  such  payment  and termination) and all Letters of Credit shall have expired or terminated, in each case, without any pending draw  (or  shall  have  been  cash  collateralized  or  backstopped  pursuant  to  arrangements  reasonably satisfactory to the Administrative Agent), and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that:        SECTION 6.01. Indebtedness . No Loan Party will, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:         (a)   (i)  the  Secured  Obligations  and  any  other  Indebtedness  created  under  the  Loan Documents and (ii) (A) Indebtedness under the Term Loan Agreement and Incremental Equivalent Debt (as defined in the Term Loan Agreement as of the date hereof) in an aggregate principal amount at any one time outstanding not to exceed the sum of $425,000,000 plus  the Incremental Term Loan Amount and (B) any Refinancing Indebtedness thereof;         (b)   Indebtedness  existing  on  the  Effective  Date  and  set  forth  on  Schedule 6.01   and Refinancing Indebtedness in respect of any of the foregoing;        (c)    Indebtedness of the Company or any Subsidiary to the  Company  or  any  Subsidiary; provided   that  (A) any  such  Indebtedness  owing  by  the  Company  or  any  other  Loan  Party  shall  be unsecured and shall be subordinated in right of payment to the Secured Obligations on terms customary for  intercompany  subordinated  Indebtedness,  as  reasonably  determined  by  the  Administrative  Agent, (B) any  such  Indebtedness  owing  to  the  Company  or  any  other  Loan  Party  shall  be  evidenced  by  a promissory note which shall have been pledged pursuant to the Security Agreement and (C) any such                                             95





 






Indebtedness owing by any Subsidiary that is not a Loan Party to any Loan Party shall be incurred in compliance with Section 6.04(d) ;         (d)   Guarantees incurred in compliance with Section 6.04 ;         (e)   [Intentionally Omitted];         (f)   (i) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, purchase money  Indebtedness  and  any  Indebtedness  assumed  by the Company or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof  and  (ii)  Refinancing  Indebtedness  in respect  of  Indebtedness  incurred  or  assumed  pursuant  to clause (i)  above; provided  that the aggregate principal amount of Indebtedness permitted by this clause (f) shall not exceed the greater of (x) $30,000,000 and (y) 3% of Consolidated Total Assets (at the time of incurrence);         (g)   (i)  Indebtedness  of  any  Person  that  becomes  a  Subsidiary  (or  of  any  Person  not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided  that such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such  assets  are  acquired  and  is  not  created  in  contemplation  of  or  in  connection  with  such  Person becoming  a  Subsidiary  (or  such  merger  or  consolidation)  or  such  assets  being  acquired,  and (ii) Refinancing Indebtedness in respect of Indebtedness assumed pursuant to clause  (i)  above; provided further  that the aggregate principal amount of Indebtedness permitted by this clause  (g)  shall not exceed the greater of (x) $50,000,000 and (y) 5% of Consolidated Total Assets (at the time of incurrence);         (h)   Permitted  Unsecured  Indebtedness  and  Refinancing  Indebtedness  in  respect  thereof; provided  that, (i) immediately prior to and immediately after giving effect (including pro forma effect) to the  incurrence  of  any  Permitted  Unsecured  Indebtedness  under  this  clause   (h) ,  no  Default  shall  have occurred  and  be  continuing,  (ii)  immediately  after giving  effect  (including  pro  forma  effect)  to  the incurrence of any Permitted Unsecured Indebtedness, the Total Net Leverage Ratio, calculated on a pro forma basis for the most recently ended Test Period, shall not exceed 4.25 to 1.00, and (iii) the Company will, on the date of incurrence of such Indebtedness, deliver to the Administrative Agent a certificate of a Financial Officer of the Company, dated such date, confirming the satisfaction of the conditions set forth above and attaching a reasonably detailed calculation evidencing compliance with the condition set forth in  the  preceding  clause   (ii) ,  identifying  the  Permitted  Unsecured  Indebtedness being  incurred  and specifying that it is being incurred pursuant to this clause  (h) ; provided  further  that the aggregate amount of Indebtedness incurred by a Subsidiary that is not a Loan Party under this Section 6.01(h)  shall not exceed the greater of (x) $30,000,000 and (y) 3% of Consolidated Total Assets (at the time of incurrence);         (i)   Indebtedness incurred in the ordinary course of business  and  owed  in  respect  of  any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;        (j)    Indebtedness in respect of (1) letters of credit, bank guarantees and similar instruments issued for the account of, and (2) lines of credit established  for  the  account  of,  the  Company  or  any Subsidiary, in the case of each of clauses  (1)  and (2)  in the ordinary course of business supporting or drawn to support, as applicable, obligations under (i) workers’ compensation, health, disability or other employee benefits, casualty or liability insurance, unemployment insurance and other social security laws and local state and federal payroll taxes, (ii) obligations in connection with self-insurance arrangements in                                            96





 






the ordinary course of business and (iii) bids, trade contracts, leases, statutory obligations, surety  and appeal bonds, performance and reclamation bonds and obligations of a like nature;         (k)   Indebtedness consisting of (i) client advances or deposits received in the ordinary course of business and (ii) obligations in respect of Repurchase Agreements;         (l)   Indebtedness  of  the  Company  or  any  Subsidiary  in  the  form  of  purchase  price adjustments (including in respect of working capital), earnouts, deferred compensation, indemnification or  other  arrangements  representing  acquisition  consideration  or  deferred  payments  of  a  similar  nature incurred in connection with any Permitted Acquisition or other Investments permitted under Section 6.04 or Dispositions permitted under Section 6.05 ;        (m)    Indebtedness of Foreign Subsidiaries and Refinancing  Indebtedness  in respect thereof; provided   that,  the  aggregate  principal  amount  of  Indebtedness  permitted  by  this  clause   (m)   shall  not exceed the greater of (x) $50,000,000 and (y) 5% of Consolidated Total Assets (at the time of incurrence);         (n)   Indebtedness  relating  to  premium  financing  arrangements  for  property  and  casualty insurance  plans  and  health  and  welfare  benefit  plans  (including  health  and  workers  compensation insurance, employment practices liability insurance and directors and officers insurance), if incurred in the ordinary course of business;        (o)    other  unsecured  and  Subordinated  Indebtedness  not otherwise  described  above,  and Refinancing Indebtedness in respect thereof, in an aggregate principal amount at any time outstanding not in excess of the greater of (x) $50,000,000 and (y) 5% of Consolidated Total Assets;        (p)    unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law;        (q)    Indebtedness of the Company or any of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations,  in  each  case  provided  in  the  ordinary course of business, including guarantees or obligations with respect to letters of credit supporting such performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations;         (r)   Indebtedness in respect to judgments or awards under circumstances not giving rise to an Event of Default;         (s)   Indebtedness  in  respect  of  obligations  that  are  being  contested  in  accordance  with Section 5.04 ;         (t)   Indebtedness  representing  deferred  compensation,  severance,  pension,  and  health  and welfare retirement benefits or the equivalent to current and former employees of the Company and its Subsidiaries incurred in the ordinary course of business or existing on the Effective Date; and         (u)   Indebtedness consisting of promissory notes issued by the Company or any Subsidiary to present or former employees, officers, directors or consultants (or their estates or beneficiaries under their estates)  to  finance  the  purchase  or  redemption  of  Equity  Interests  of  the  Company  permitted  by  Section 6.09 .  For purposes of determining compliance with this Section 6.01 , in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness described in clauses  (a)  through (u)  above, the Company, in its sole discretion, will be permitted to divide                                            97





 






and classify such item of Indebtedness (or any portion thereof) on the date of incurrence, and at any time and from time to time may later reclassify all or any portion of any item of Indebtedness as having been incurred under any category of permitted Indebtedness described in clauses (a)  through (u)  above so long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification.        SECTION 6.02. Liens . No Loan Party will, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:        (a)    (i) Liens created under the Loan Documents and (ii)  Lien  on  Collateral  of  the  Loan Parties securing Indebtedness incurred pursuant to Section 6.01(a)(ii)  (which Liens shall be subject to an Intercreditor  Agreement  and,  to  the  extent  on  ABL  Priority  Collateral,  shall  be  junior  to  the  Liens securing the Secured Obligations);         (b)   Permitted Encumbrances;         (c)   any Lien on any asset of the Company or any Subsidiary existing on the Effective Date and  set  forth  on  Schedule 6.02 ;  provided   that  (i) such  Lien  shall  not  apply  to  any  other  asset  of  the Company or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property  covered  by  such  Lien  or  financed  by  Indebtedness  permitted  under  Section 6.01   and (B) proceeds and products thereof and (ii) such Lien shall secure only those obligations that it secures on the  Effective  Date  and  extensions,  renewals,  replacements  and  refinancings  thereof  so  long  as  the principal  amount  of  such  extensions,  renewals,  replacements  and  refinancings  does  not  exceed  the principal amount of the obligations being extended, renewed, replaced or refinanced or, in the case of any such  obligations  constituting  Indebtedness,  that  are  permitted  under  Section 6.01(b)   as  Refinancing Indebtedness in respect thereof;         (d)   any Lien existing on any asset prior to the acquisition thereof by the Company or any Subsidiary  or  existing  on  any  asset  of  any  Person  that  becomes  a  Subsidiary  (or  of  any  Person  not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Effective Date prior to the time such Person becomes a Subsidiary (or is so merged or consolidated); provided  that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary (or such merger or consolidation), (ii) such Lien shall not apply to any other asset of the Company or any Subsidiary (other than (A) the proceeds or products of such assets, (B) after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition, and (C) in the case of any such merger or consolidation, the assets of any Subsidiary without significant assets that was  formed  solely  for  the  purpose  of  effecting  such acquisition) and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition  or  the  date  such  Person  becomes  a  Subsidiary  (or  is  so  merged  or  consolidated)  and extensions,  renewals,  replacements  and  refinancings  thereof  so  long  as  the  principal  amount  of  such extensions,  renewals  and  replacements  does  not  exceed  the  principal  amount  of  the  obligations  being extended, renewed or replaced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(g)  as Refinancing Indebtedness in respect thereof;         (e)   Liens on fixed or capital assets acquired, constructed or improved (including any such assets  made  the  subject  of  a  Capital  Lease  Obligation  incurred)  by  the  Company  or  any  Subsidiary; provided   that  (i) such  Liens  secure  Indebtedness  incurred  to  finance  such  acquisition,  construction  or                                            98





 






improvement and permitted by clause (f)(i)  of Section 6.01  or any Refinancing Indebtedness in respect thereof permitted by clause (f)(ii)  of Section 6.01 , and (ii) such Liens shall not apply to any other assets (except  for  replacements,  additions  and  accessions to such assets) of the Company or any Subsidiary, other than the proceeds and products of such fixed or capital assets; provided  that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;         (f)   in  connection  with  the  sale  or  transfer  of  any  Equity  Interests  or  other  assets  in  a transaction  permitted  under  Section 6.05 ,  customary  rights  and  restrictions  contained  in  agreements relating to such sale or transfer pending the completion thereof;         (g)   in the case of (i) any Subsidiary that is not a wholly-owned Subsidiary or (ii) the Equity Interests in any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements,  related  to  Equity  Interests  in  such  Subsidiary  or  such  other  Person  set  forth  in  the organizational  documents  of  such  Subsidiary  or  such  other  Person  or  any  related  joint  venture, shareholders’ or similar agreement;         (h)   any Lien on assets of any Foreign Subsidiary; provided  that (i) such Lien shall not apply to any Collateral (including any Equity Interests in any Subsidiary that constitute Collateral) or any other assets of the Company or any other Loan Party and (ii) such Lien shall secure only Indebtedness or other obligations of such Foreign Subsidiary permitted hereunder;         (i)   Liens  solely  on  any  cash  earnest  money  deposits,  escrow  arrangements  or  similar arrangements made by the Company or any Subsidiary in connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder;         (j)   Liens granted (i) by a Subsidiary that is not a Loan  Party  in  respect  of  Indebtedness permitted to be incurred under Section 6.01(c)  and (ii) by any Subsidiary in favor of any Loan Party;         (k)   Liens securing judgments for the payment of money not constituting an Event of Default under Article VII ;         (l)   other Liens securing Indebtedness or other obligations in an aggregate principal amount not  to  exceed  the  greater  of  (x)  $30,000,000  and  (y)  3%  of  Consolidated  Total  Assets  at  any  time outstanding;        (m)    Liens arising out of any conditional sale, title retention,  consignment  or  other  similar arrangements for the sale of goods entered into by the Company or any Subsidiary in the ordinary course of business;        (n)    Liens securing Indebtedness permitted hereunder to finance insurance premiums solely to the extent of such premiums;        (o)    statutory and common law rights of setoff and other Liens, similar rights and remedies arising as a matter of law encumbering deposits of cash, securities, commodities and other funds in favor of banks, financial institutions, other depository institutions, securities or commodities intermediaries or brokerage, and Liens of a collecting bank arising under Section 4-208 or 4-210 of the UCC in effect in the relevant jurisdiction or any similar law of any foreign jurisdiction on items in the course of collection;                                             99





 






       (p)   Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens  attaching  to  commodity  trading  accounts  or  other  brokerage  accounts  incurred  in  the  ordinary course of business and not for speculative purposes;         (q)   Liens  that  are  contractual  rights  of  set-off  or  rights  of  pledge  (i)  relating  to  the establishment  of  depository  relations  with  banks  not  given  in  connection  with  the  issuance  of Indebtedness, (ii) relating to pooled deposit or sweep  accounts  of  the  Company  or  any  Subsidiary  to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the or (3) relating to purchase orders and other agreements entered into with customers of the Company or any of Subsidiary in the ordinary course of business;         (r)   Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.04 ;         (s)   the modification, replacement, renewal or extension of any Lien permitted by clauses  (d) and  (e)  of this  Section 6.02 ; provided  that (i) the Lien does not extend to any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B)  proceeds  and  products  thereof,  and  (ii) the  renewal,  extension  or  refinancing  of  the  obligations secured or benefited by such Liens is permitted by  Section 6.01  (to the extent constituting Indebtedness);         (t)   (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (ii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business; and         (u)   Liens on the Collateral securing (i) Permitted First  Priority  Refinancing  Indebtedness permitted under Section 6.01(e) of the Term Loan Agreement (as in effect on the Effective Date) on a pari passu basis with the Liens on the Collateral securing  the  Secured  Obligations,  and,  if  secured by the Collateral, Refinancing Indebtedness in respect thereof; provided  that a trustee, collateral agent, security agent  or  other  Person  acting  on  behalf  of  the  holders  of  such  Indebtedness  has  entered  into  an Intercreditor  Agreement  and  (ii)  Permitted  Second  Priority  Refinancing  Indebtedness  permitted  under Section 6.01(e) of the Term Loan Agreement (as in effect on the Effective Date) on a junior basis to the Liens on the Collateral securing the Secured Obligations and, if secured by the Collateral, Refinancing Indebtedness in respect thereof; provided  that, a trustee, collateral agent, security agent or other Person acting on behalf of the holders of such Indebtedness has entered into an Intercreditor Agreement.  For  purposes  of  determining  compliance  with  this  Section 6.02 ,  (A)  a  Lien  securing  an  item  of Indebtedness need not be permitted solely by reference to one category of permitted Liens (or any portion thereof) described in clauses  (a)  through (u)  but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of  Indebtedness  (or  any  portion  thereof)  meets  the criteria  of  one  or  more  of  the  categories  of  permitted  Liens  (or  any  portion  thereof)  described  in clauses (a)  through (u) , the Company may, in its sole discretion, classify or divide such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.02  and will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such  Lien (or any portion thereof) in one of the above  clauses  and  such  Lien  securing  such  item  of Indebtedness (or portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof).                                             100





 






       SECTION 6.03. Fundamental Changes .         (a)   None of the Company or any Subsidiary will merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:               (i)    any  Person  (other  than  the  Company  or  any  Subsidiary)  may  merge  or       consolidate with the Company or any Subsidiary; provided  that any such merger or consolidation       involving (A) the Company must result in the Company as the surviving entity, (B) any Borrower       must result in such Borrower as the surviving entity and (C) a Loan Party must result in such       Loan Party as the surviving entity or, if such Loan Party is not the surviving entity of such merger       or  consolidation,  the  Person  surviving  such  merger or  consolidation  becomes  a  Loan  Party       following the consummation of such merger or consolidation in accordance with Section 5.14(a) ;               (ii)   any Subsidiary may merge into or consolidate with a Loan Party in a transaction       in which the surviving entity is such Loan Party (provided  that any such merger involving (A) the        Company must result in the Company as the surviving entity and (B) a Borrower must result in        such Borrower as the surviving entity);               (iii)  any Subsidiary that is not a Loan Party may merge into  or  consolidate  with        another Subsidiary that is not a Loan Party;               (iv)   any Subsidiary that is not a Loan Party may liquidate, wind up or dissolve if the        Company determines in good faith that such liquidation, winding up or dissolution is in the best        interests  of  the  Company  and  its  Subsidiaries  and  is  not  materially  disadvantageous  to  the        Lenders; and               (v)    any Subsidiary may liquidate, wind up or dissolve if its assets are transferred to        the  Company  or  any  Loan  Party  or,  if  such  Subsidiary  is  not  a  Loan  Party,  to  any  other        Subsidiary.         (b)   No Loan Party will, nor will it permit any of its Subsidiaries to, engage to any material extent in any business substantially different from businesses of the type conducted by the Company and its Subsidiaries (taken as a whole) on the Effective  Date  and  businesses  reasonably  related,  ancillary, similar,  complementary  or  synergistic  thereto  or  reasonable  extensions,  development  or  expansion thereof.         (c)   No Loan Party will, nor will it permit any of its Subsidiaries to, change its fiscal year from the basis in effect on the Effective Date; provided  that, the Loan Parties and their Subsidiaries may change their fiscal year from the basis in effect on the Effective Date, subject to such adjustments to this Agreement  as  the  Borrower  Representative  and  the  Administrative  Agent  shall  reasonably  agree  are necessary or appropriate in connection with such change  (and  the  parties  hereto  hereby  authorize  the Borrower Representative and the Administrative Agent to make any such amendments to this Agreement as they jointly deem necessary to give effect to the foregoing).         (d)   No Loan Party will, nor will it permit any of its Subsidiaries to, amend, modify or waive any of its rights under its certificate of incorporation, bylaws or other organizational documents, in each case to the extent such amendment, modification or waiver would be materially adverse to the Lenders.                                             101





 






       (e)   No Loan Party will, nor will it permit any Subsidiary to, consummate a Division as the Dividing  Person,  without  the  prior  written  consent of  Administrative  Agent.  Without  limiting  the foregoing, if any Loan Party that is a limited liability company consummates a Division (with or without the prior consent of Administrative Agent as required above), each Division Successor shall be required to comply with the obligations set forth in Section 5.14  and the other further assurances obligations set forth  in  the  Loan  Documents  and  become  a  Loan  Party  under  this  Agreement  and  the  other  Loan Documents.         SECTION 6.04. Investments,   Loans,   Advances,   Guarantees   and   Acquisitions .  No  Loan  Party will, nor will it permit any Subsidiary to, purchase, hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Subsidiary prior thereto), make or otherwise permit to exist any Investment in any other Person, except:        (a)    [reserved];        (b)    cash and Permitted Investments;        (c)    (i) Investments existing on the Effective Date in Subsidiaries and (ii) other Investments existing  or  contemplated  on  the  Effective  Date  and set  forth  on  Schedule 6.04   and  any  modification, replacement,  renewal,  reinvestment  or  extension  thereof  provided   that  the  amount  of  any  Investment permitted pursuant to this Section 6.04(c)  is not increased from the amount of such Investment on the Effective Date except pursuant to the terms of such Investment as of the Effective Date or as otherwise permitted by this Section 6.04 ;         (d)   (i) additional Investments by the Company in any Loan Party and by any Loan Party in the Company or in another Loan Party, and (ii) Investments (including by way of capital contributions) by the Company and the Subsidiaries in Equity Interests in their Subsidiaries; provided , in the case of clause  (ii) , that (x) any such Equity Interests held by the Company or any Loan Party shall be pledged in accordance with the requirements of Section 5.14  and (y) the aggregate amount of Investments made by the Company or any Loan Party in any Subsidiary that is not a Loan Party in reliance on this clause  (d) , when combined with the aggregate amount of Guarantees made by the Company or any Loan Party of Indebtedness  (excluding,  for  the  avoidance  of  doubt,  Guarantees  of  obligations  not  constituting Indebtedness) of any Subsidiary that is not a Loan Party in reliance on clause  (e)  below, shall not exceed the greater of (x) $30,000,000 and (y) 3% of Consolidated Total Assets (at the time made);         (e)   Guarantees by the Company or any Subsidiary of Indebtedness or other obligations of the Company or any Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any letter of credit or letter of guaranty); provided  that (i) any such Guarantee of Subordinated Indebtedness is subordinated to the Secured Obligations on terms no less  favorable  to  the  Lenders  than  those  of  the  Subordinated  Indebtedness,  (ii) any  such  Guarantee constituting  Indebtedness  is  permitted  by  Section 6.01   (other  than  clause   (d)   thereof)  and  (iii) the aggregate amount of Guarantees made by the Company or any Loan Party of Indebtedness (excluding, for the avoidance of doubt, Guarantees of obligations not constituting Indebtedness) of any Subsidiary that is not a Loan Party in reliance on this clause  (e) , when combined with the aggregate amount of Investments made by the Company or any Loan Party in any Subsidiary that is not a Loan Party in reliance on clause (d)  above, shall not exceed the greater of (x) $30,000,000 and (y) 3% of Consolidated Total Assets (at the time made);        (f)    loans, advances or other extensions of credit to officers, directors and employees of the Company or any Subsidiary (i) to finance the purchase of Equity Interests of the Company pursuant to employee plans, (ii) for reasonable and customary business-related travel, entertainment, and moving and                                            102





 






relocation, business machines or supplies, automobiles and other similar expenses and advances, in each case incurred in the ordinary course of business, and (iii) for purposes not described in the foregoing clauses   (i)   and  (ii) , in an aggregate principal amount outstanding at any  time  under  clause (iii)   not  to exceed $5,000,000;         (g)   Investments  received  in  connection  with  the  bankruptcy  or  reorganization  of,  or settlement of delinquent accounts and disputes with, customers and suppliers, or consisting of securities acquired in connection with the satisfaction or enforcement of claims due or owing to the Company or any Subsidiary, in each case in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;         (h)   Permitted Acquisitions (including any intercompany  investments,  loans  and  advances used to consummate Permitted Acquisitions); provided  that, the Payment Condition shall be satisfied with respect to such Acquisition;        (i)    Investments held by a Subsidiary acquired after the Effective Date or of a Person merged or  consolidated  with  or  into  the  Company  or  a  Subsidiary  after  the  Effective  Date,  in  each  case  as permitted  hereunder,  to  the  extent  that  such  Investments  were  not  made  in  contemplation  of  or  in connection  with  such  acquisition,  merger  or  consolidation  and  were  in  existence  on  the  date  of  such acquisition, merger or consolidation;         (j)   Investments constituting, or made as a result of the receipt of noncash consideration from a sale, transfer, lease or other disposition of any asset in compliance with Section 6.05 ;         (k)   Investments by the Company or any Subsidiary that result solely from the receipt by the Company or such Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but not any additions thereto made after the date of the receipt thereof);        (l)    Investments in the form of Swap Agreements permitted under Section 6.07 ;         (m)   Investments by Foreign Subsidiaries in other Foreign Subsidiaries or by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party;         (n)   Investments constituting deposits described in clauses   (c)   and  (d)   of  the  definition  of “Permitted Encumbrances ”;         (o)   Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of the Company and that are made in the ordinary course of business, (iv) Guarantees made in the ordinary course of business in support of obligations of the Company or any of its Subsidiaries not constituting  Indebtedness  for  borrowed  money,  including operating leases and obligations owing to suppliers, customers and licensees and (v) loans, advances or other  extensions  of  credit  to  one  or  more  customers  by  the  Company  or  any  Subsidiary  pursuant  to arm’s-length  terms  (or  terms  otherwise  acceptable  to  the  Administrative  Agent  in  its  reasonable discretion) in order to finance such customer’s purchase of chassis that are used by the Company or any Subsidiary to manufacture recreational vehicles for such customer; provided  that, the aggregate principal amount of such loans, advances and extensions of credit outstanding at any time in reliance on this clause (o)(v)  shall not exceed $15,000,000;                                             103





 






       (p)   mergers and consolidations permitted under Section 6.03  that do not involve any Person other than the Company and Subsidiaries that are wholly-owned Subsidiaries;         (q)   to  the  extent  constituting  Investments,  intercompany  loans  or  other  intercompany Investments made by Loan Parties in the ordinary course of business to or in any Foreign Subsidiary to provide  funds  as  necessary  to  enable  the  applicable  Foreign  Subsidiary  to  comply  with  changes  in statutory or contractual capital requirements (other than any contractual requirement that constitutes  a Guarantee);        (r)    Investments consisting of Guarantees in the ordinary course of business to support the obligations of any Subsidiary under its worker’s compensation and general insurance agreements;        (s)    the Company’s entry into (including payments of premiums in connection therewith), and the performance of obligations under, Permitted Call Spread Swap Agreements in accordance with their terms;        (t)    Investments in joint ventures of the Company or any Subsidiary, taken together with all other  Investments  made  pursuant  to  this  clause   (t)  that are at that time outstanding, not to exceed the greater of (x) $50,000,000 and (y) 5% of Consolidated Total Assets (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);        (u)    advances of payroll payments to employees in the ordinary course of business;        (v)    Investments to the extent that payment for such Investments is made solely with Equity Interests (other than Disqualified Equity Interests) of the Company;        (w)    the forgiveness or conversion to equity of any Indebtedness owed by the Company or any Subsidiary and permitted by Section 6.01 ;         (x)   to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, Intellectual Property, or other rights, in each case in the ordinary course of business; and         (y)   Investments arising as a result of Sale and Leaseback Transactions;         (z)   Investments in the Term Loans in accordance with Section 9.04(f)  of  the  Term  Loan Agreement (as in effect on the Effective Date);         (aa)  [reserved];         (bb)  Investments  consisting  of  the  acquisition  of  real property  (and  any  improvements thereon) located at, and commonly known as, 11333 CR2, Middlebury, Indiana 46540 and Vacant Land, CR2, Middlebury, Indiana 46540, pursuant to the exercise by Grand Design of its right of first offer to purchase such property pursuant to the terms of each Lease Agreement, dated as of the date hereof, by and between Three Oaks, LLC, as landlord, and Grand Design, as tenant (or such other terms as may be reasonably  acceptable  to  the  Administrative  Agent);  provided   that,  (i)  both  immediately  before  and immediately after giving pro forma effect to any such Investment pursuant to this clause (bb) , no Event of Default shall have occurred and be continuing and (ii) the aggregate amount of Investments permitted in reliance on this clause (bb)  shall not exceed $20,000,000 (at the time made); and                                             104





 






       (cc)  any other Investments (including Acquisitions) whether or not of a type described above; provided  that, (i) both immediately before and immediately after giving pro forma effect to any such Investment pursuant to this clause (cc) , no Event of Default shall have occurred and be continuing and the Payment Condition shall be satisfied with respect to  such  Investment  and  (ii)  any  Acquisitions  made pursuant to this clause (cc)  must constitute a Permitted Acquisition.  Notwithstanding the foregoing, any Acquisition made in reliance on any provision of this Section 6.04 must satisfy the requirements of a Permitted Acquisition.  Notwithstanding  anything  contrary  set  forth  above, if  any  Investment  is  denominated  in  a  foreign currency, no fluctuation in currency values shall result in a breach of this Section 6.04 .  For purposes of determining compliance with this Section 6.04 , in the event that an Investment (or any portion thereof) meets the criteria of more than one of the categories of permitted Investments described in  clauses   (a)   through  (cc)  above, the Company and the Subsidiaries, in their sole  discretion,  will  be permitted to divide and classify such Investment (or any portion thereof) on the date of incurrence, and at any time and from time to time may later reclassify all or any portion of any Investment as having been incurred under any category of permitted Investments described in clauses (a)  through (cc)  above so long as such Investment is permitted to be incurred pursuant to such provision at the time of reclassification. For the avoidance of doubt, an Investment entered into in reliance on clause (cc)  above that was permitted at the time entered into shall continue to be permitted under such clause notwithstanding any failure to satisfy the Payment Condition (or any other condition in such clause) at a later date with respect to any subsequent Investment.  For purposes of determining the amount of any Investment outstanding, such amount shall be deemed to be the amount of such Investment when made, purchased or acquired (without adjustment for subsequent increases  or  decreases  in  the  value  of  such  Investment)  less  any  amount  realized  in  respect  of  such Investment upon the sale, collection or return of capital (not to exceed the original amount invested.        SECTION 6.05. Asset   Sales .  No  Loan  Party  will,  nor  will  it  permit  any  Subsidiary  to,  sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will any Subsidiary issue any additional Equity Interest in such Subsidiary (other than issuing directors’ qualifying shares and other than issuing Equity Interests to the Company or another Subsidiary in compliance with Section 6.04(d) ) (each, a “Disposition ”), except:         (a)   Dispositions of (i) inventory or goods held for sale (including, for the avoidance of doubt, such  Dispositions  made  by  the  Company  or  any  other Loan  Party  to  Subsidiaries  that  are  not  Loan Parties, so long as such Dispositions are at prices and on terms and conditions at least substantially as favorable to the Company or such Loan Party as those that could be obtained at the time in a comparable arm’s-length transaction with a Person that is not a Subsidiary), (ii) immaterial assets (including allowing any registrations or any applications for registration of any immaterial intellectual property to lapse or go abandoned  in  the  ordinary  course  of  business),  (iii) used,  obsolete,  damaged  or  surplus  property  or equipment, whether now owned or hereafter acquired, and (iv) cash and Permitted Investments, in each case in the ordinary course of business;         (b)   Dispositions to the Company or a Subsidiary; provided  that any such Disposition to a Subsidiary that is not a Loan Party (i) shall be made in compliance with Sections 6.04  and 6.08  if and to the extent applicable and (ii) shall not, in the case of any Disposition by the Company or any other Loan Party  to  Subsidiaries  that  are  not  Loan  Parties  in any  fiscal  year  that  are  not  made  as  Investments                                             105





 






permitted  by  Section 6.04 , involve assets having an aggregate fair market value  for  all  such  assets  so Disposed in such fiscal year in excess of $7,500,000;         (c)   Dispositions of accounts receivable in connection with  the  compromise,  settlement  or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;        (d)    (i) to the extent constituting Dispositions, transactions  permitted  by  Sections 6.01   and 6.03 , (ii) Dispositions of assets to the extent that such Disposition constitutes an Investment referred to in and permitted by Section 6.04  and (iii) Dispositions of assets to the extent that such Disposition constitute a Restricted Payment referred to in and permitted by Section 6.09 ;        (e)    Sale and Leaseback Transactions permitted by Section 6.06 ;         (f)   Licenses, leases or subleases entered into in the ordinary course of business, including in connection  with  effectuating  any  tax  subsidy  arrangement,  including  a  payment-in-lieu  of  taxes arrangement, to the extent that they do not materially interfere with the business of the Company or any Subsidiary;         (g)   Licenses or sublicenses of intellectual property in the ordinary course of business, to the extent that they do not materially interfere with the business of the Company or any Subsidiary;         (h)   Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any asset of any of the Company or any Subsidiary;         (i)   Dispositions of assets (including as a result of like-kind exchanges) to the extent that (i) such assets are exchanged for credit (on a fair market value basis) against the purchase price of similar or replacement  assets  or  (ii)  such  asset  is  Disposed  of  for  fair  market  value  and  the  proceeds  of  such Disposition are promptly applied to the purchase price of similar or replacement assets;         (j)   Dispositions of Investments in joint ventures to the extent required by, or made pursuant to  customary  buy/sell  arrangements  between,  the  joint  venture  parties  set  forth  in  joint  venture arrangements;         (k)   the abandonment, cancellation, non-renewal or discontinuance of use or maintenance of non-material intellectual property or rights relating thereto (including registrations and applications for registration) that the Company determines in its reasonable judgment to be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders;         (l)   Dispositions  of  assets  acquired  pursuant  to  or  in order  to  effectuate  a  Permitted Acquisition which assets are not used or useful to the core or principal business of the Company and its Subsidiaries in an aggregate amount not to exceed 30% of the aggregate consideration in respect of such Permitted Acquisition;         (m)   Dispositions of assets that the Company determines in its reasonable judgment to be no longer  used  or  useful  in  the  conduct  of  the  business  of  the  Company  or  any  Subsidiary  outside  the ordinary  course  of  business  (and  for  consideration complying  with  the  requirements  applicable  to Dispositions pursuant to clause (r)  below) in an aggregate amount not to exceed $15,000,000;                                             106





 






       (n)   any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the Company and the Subsidiaries as a whole, as determined in good faith by the Company;        (o)    Dispositions of Investments in joint ventures to the extent required by, or made pursuant to  customary  buy/sell  arrangements  between,  the  joint  venture  parties  set  forth  in  joint  venture arrangements and similar binding arrangements;        (p)    the unwinding of any Swap Contract pursuant to its terms;        (q)    sales or other issuances of Equity Interests in the Company;        (r)    Dispositions contemplated as of the Effective Date and listed on Schedule 6.05 ; and         (s)   any other Disposition of assets (including Equity Interests); provided  that (i) if the total fair market value of the assets subject to any such Disposition or series of related Dispositions is in excess of $7,500,000, it shall be for fair market value (or if not for fair market value, the shortfall is permitted as and treated as an Investment under Section 6.04 ), (ii) at least 75% of the total consideration for any such Disposition in excess of $10,000,000 received by the Company and its Subsidiaries is in the form of cash or Permitted Investments, (iii) no Default or Event of Default then exists or would result after giving effect (including pro forma effect) thereto (except if such Disposition is made pursuant to an agreement entered into at a time when no Default or Event of Default exists) and (iv) if the Dispositions since the delivery of the most recent Borrowing Base Certificates results (on a pro forma basis) in a reduction of 10% or more of the Aggregate Borrowing Base (based on the most recent Borrowing Base Certificates delivered  to  the  Administrative  Agent),  the  Borrower  Representative  shall  be  required  to  deliver  an updated Aggregate Borrowing Base Certificate, together with an updated Borrowing Base Certificate for each Borrower, to the Administrative Agent; provided , however , that for purposes of clause (ii)  above, the following  shall  be  deemed  to  be  cash:  (A) any  liabilities  (as  shown  on  the  Company’s  or  such Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Company and its Subsidiaries  shall  have  been  validly  released  by  all  applicable  creditors  in  writing,  (B) any  securities received by the Company or such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received in the conversion) within one hundred eighty (180) days following the closing of the applicable Disposition  and  (C) aggregate  non-cash  consideration  received  by  the  Company  or  such  Subsidiary having an aggregate fair market value (determined in good faith by the Company as of the closing of the applicable Disposition for which such non-cash consideration is received and without giving effect to subsequent changes in value) not to exceed the greater of (x) $30,000,000 and (y) 3% of Consolidated Total Assets at any time since the Effective Date (net of any non-cash consideration converted into cash and Permitted Investments).        SECTION 6.06. Sale   and   Leaseback   Transactions . No Loan Party will, nor will it permit any Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) any Capital Lease Obligations arising in connection therewith are permitted under Section 6.01  and (b) any Liens arising in connection therewith (including Liens deemed to arise in connection with any such Capital Lease Obligations) are permitted under Section 6.02 .         SECTION 6.07. Swap   Agreements . No Loan Party will, nor will it permit any Subsidiary  to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in respect of the Equity                                            107





 






Interests or Indebtedness of the Company or any Subsidiary), (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another  floating  rate  or  otherwise)  with  respect  to  any  interest-bearing  liability  or  investment  of  the Company or any Subsidiary and (c) Permitted Call Spread Swap Agreements.        SECTION 6.08. Transactions   with   Affiliates .  No  Loan  Party  will,  nor  will  it  permit  any Subsidiary to, sell, lease or otherwise transfer any assets to, or purchase, lease or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates, except:        (a)    transactions  that  are  at  prices  and  on  terms  and  conditions  at  least  substantially  as favorable to the Company or such Subsidiary (or, in the case of a transaction between a Loan Party and a non-Loan Party, at least substantially as favorable to such Loan Party) as those that could be obtained at the time in a comparable arm’s-length transaction with a Person that is not an Affiliate;        (b)    transactions between or among the Company and the other Loan Parties or any Person that becomes a Loan Party as a result of or in connection with such loan or other transaction to the extent permitted hereunder and not involving any other Affiliate;        (c)    (i) transactions  between  or  among  Subsidiaries  that  are  not  Loan  Parties  and  not involving any other Affiliate and (ii) transactions between any Loan Party and any Subsidiary that is not a Loan Party to the extent permitted hereunder;        (d)    any Investment (including loans or advances to employees) permitted under Section 6.04 ;         (e)   the payment of reasonable fees to directors of the Company or any Subsidiary who are not employees of the Company or any Subsidiary;        (f)    compensation,  expense  reimbursement  and  indemnification  of,  and  other  employment arrangements (including severance arrangements and health, disability and similar insurance or benefit plans) with, directors, officers, managers, employees and consultants of the Company or any Subsidiary entered  into  in  the  ordinary  course  of  business  and  transactions  pursuant  to  equity-based  plans  and employee benefit plans and arrangements in the ordinary course of business;        (g)    any Restricted Payment permitted by Section 6.09 ;        (h)    any issuance or sale of Equity Interests to, and any repurchase, retirement, redemption or other acquisition or retirement of Equity Interests owned by, Affiliates to the extent not prohibited under this Agreement;        (i)    any payments or other transactions pursuant to any  tax  sharing  agreement  among  the Loan  Parties  and  their  subsidiaries;  provided  that, any such tax sharing agreement is on arm’s-length terms usual and customary for agreements of that type;         (j)   the consummation of the Transactions and the payment of the Transaction Costs;         (k)   the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, officers, managers, employees and consultants of the Company or any Subsidiary in the ordinary course of business to the extent attributable to the ownership or operation of the Company and its Subsidiaries;                                             108





 






       (l)   transactions pursuant to agreements in existence on the Effective Date and set forth on Schedule 6.08  or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect;         (m)   a joint venture which would constitute a transaction with an Affiliate solely as a result of the Company or any Subsidiary owning an equity interest or otherwise controlling such joint venture or similar entity;         (n)   transactions with joint ventures, customers, suppliers, contractors, joint venture partners (including physicians) or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including pursuant to joint venture agreements) and otherwise in compliance with the terms of the Loan Documents, and which are fair to the Company or its applicable Subsidiaries in the reasonable determination of the board of directors, chief executive officer or chief financial officer of the Company or its Subsidiaries, as applicable, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;        (o)    existing Indebtedness and any other obligations otherwise permitted hereunder pursuant to an agreement existing on the Effective Date as set forth on Schedule 6.01 , as such agreement may be amended pursuant to Section 6.01 ; and         (p)   any lease or sublease entered into between the Company or any Subsidiary, as lessee, and any Affiliate of the Company, as lessor or sublessor, which is approved by a majority of the disinterested members of the board of directors of the Company in good faith.         SECTION 6.09. Restricted  Payments . No Loan Party will, nor will it permit any Subsidiary to, will declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:         (a)   any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, in each case ratably to the holders of such Equity Interests (or if not ratably, on a basis more favorable to the Company and the Loan Parties);        (b)    the Company may declare and pay dividends with respect to its Equity Interests payable solely in shares of Qualified Equity Interests of the Company;        (c)    the  Company  may  repurchase,  purchase,  acquire,  cancel  or  retire  for  value  Equity Interests of the Company from present or former employees, officers, directors or consultants (or their estates or beneficiaries under their estates) of the Company or any Subsidiary upon the death, disability, retirement or termination of employment or service of such employees, officers, directors or consultants, or to the extent required, pursuant to employee benefit plans, employment agreements, stock purchase agreements  or  stock  purchase  plans,  or  other  benefit  plans;  provided   that  the  aggregate  amount  of Restricted Payments made pursuant to this Section 6.09(c)  shall not exceed $5,000,000 in any fiscal year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $10,000,000; provided , further , that such amount in any calendar year may be increased by an amount not to exceed:               (i)    the net cash proceeds from the sale of Equity Interests (other than Disqualified       Equity  Interests)  of  the  Company  or  any  Subsidiary to  members  of  management,  managers,       directors or consultants of the Company or any Subsidiary that occurs after the Effective Date, to       the  extent  net  cash  proceeds  from  the  sale  of  such Equity  Interests  have  not  otherwise  been                                             109





 






       applied  to  the  payment  of  Restricted  Payments  by  virtue  of  Section 6.09(b)   or  this        Section 6.09(c) ; plus               (ii)   the  net  cash  proceeds  of  key  man  life  insurance  policies  received  by  the        Company or any Subsidiary; less               (iii)  the amount of any Restricted Payments previously made with the cash proceeds        described in clauses  (i)  and  (ii)  of this  Section 6.09(c) ;        (d)    the  Company  may  make  cash  payments  in  lieu  of  the issuance  of  fractional  shares representing insignificant interests in the Company in connection with (i) the exercise of warrants, options or  other  securities  convertible  into  or  exchangeable  for  Equity  Interests  in  the  Company  and  (ii) any dividend, split or combination thereof or any Permitted Acquisition;         (e)   the Company may acquire Equity Interests of the Company upon the exercise of stock options  for  such  Equity  Interests  of  the  Company  if  such  Equity  Interests  represent  a  portion  of  the exercise  price  of  such  stock  options  or  in  connection  with  tax  withholding  obligations  arising  in connection  with  the  exercise  of  options  by,  or  the vesting  of  restricted  Equity  Interests  held  by,  any current or former director, officer or employee of the Company or its Subsidiaries;        (f)    the Company may convert or exchange any Equity Interests of the Company for or into Qualified Equity Interests of the Company;        (g)    the Company and its Subsidiaries may declare or make, or agree to pay or make, directly or indirectly, any other Restricted Payments (whether or not of a type described in the other paragraphs of this Section 6.09 ) so long as, both immediately before and after giving effect (including pro forma effect) to such Restricted Payment (x) no Default or Event of Default shall have occurred and be continuing and (y) the Payment Condition shall be satisfied with respect to such Restricted Payments;         (h)   the  Company  may  make  Restricted  Payments  within  sixty  (60)  days  after  the  date  of declaration thereof, if at the date of declaration of such Restricted Payments, such Restricted Payments would have been permitted pursuant to another clause of this Section 6.09 ;         (i)   the  Company  and  its  Subsidiaries  may  make  Restricted  Payments  to  effect  the Transactions; and         (j)   the Company and its Subsidiaries may declare or make, or agree to pay or make, directly or indirectly, any other Restricted Payments (whether or not of the type described in the other paragraphs of this Section 6.09 ) so long as (i) both immediately before and after giving effect (including pro forma effect) to such Restricted Payments, no Default or Event of Default has occurred and is continuing and (ii) the aggregate amount of such Restricted Payments made in reliance on this clause (j)  during any fiscal year of the Company shall not exceed $20,000,000.        Notwithstanding  the  foregoing,  the  Company  may  also  repurchase,  exchange  or  induce  the conversion of Permitted Convertible Notes by delivery of shares of the Company’s common stock and/or a different series of Permitted Convertible Notes (which series (x) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the analogous date under the indenture governing the Permitted Convertible Notes that are so repurchased, exchanged or converted and (y) has terms, conditions and covenants that are no less favorable to the Company than the Permitted Convertible  Notes  that  are  so  repurchased,  exchanged  or  converted  (as  determined  by  the  board  of directors  of  the  Company,  or  a  committee  thereof,  in  good  faith))  (any  such  series  of  Permitted                                            110





 






Convertible Notes, “Refinancing  Convertible  Notes ”) and/or by payment of cash (in an amount that does not exceed the proceeds received by the Company from the substantially concurrent issuance of shares of the Company’s common stock and/or a Refinancing Convertible Notes plus  the net cash proceeds, if any, received by the Company pursuant to the related exercise or early unwind or termination of the related Permitted Call Spread Swap Agreements pursuant to the immediately following proviso); provided  that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Notes that are so repurchased, exchanged or converted, the Company shall (and, for the avoidance of doubt, shall be permitted under this Section 6.09  to) exercise or unwind  or  terminate  early  (whether  in  cash,  shares or  any  combination  thereof)  the  portion  of  the Permitted Call Spread Swap Agreements, if any, corresponding to such Permitted Convertible Notes that are so repurchased, exchanged or converted.         SECTION 6.10. Subordinated   Indebtedness   and   Amendments   to   Subordinated   Indebtedness Documents .         (a)   No Loan Party will, nor will it permit any Subsidiary to, directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness or any Indebtedness from time to time outstanding under the Subordinated Indebtedness Documents, except:               (i)    regularly scheduled interest and principal payments as and when due in respect of       any Subordinated Indebtedness, other than payments prohibited by the subordination provisions       thereof;               (ii)   refinancings  of  Subordinated  Indebtedness  with  the  proceeds  of  Refinancing       Indebtedness permitted in respect thereof under Section 6.01 ;               (iii)  payments  of  or  in  respect  of  Subordinated  Indebtedness  made  solely  with        Qualified Equity Interests in the Company or the conversion of any Subordinated Indebtedness        into Qualified Equity Interests of the Company;               (iv)   prepayments of intercompany Subordinated Indebtedness permitted hereby owed       by the Company or any Subsidiary to the Company or any Subsidiary, other than prepayments       prohibited by the subordination provisions governing such Subordinated Indebtedness; provided        that, for the avoidance of doubt, the prepayment of any Subordinated Indebtedness owed by the        Company or any Loan Party to any Subsidiary that is not a Loan Party shall be permitted so long        as no Default shall have occurred and be continuing or would result after giving effect (including       pro forma effect) thereto; and               (v)    so long as no Default shall have occurred and be continuing  or  would  result        therefrom,  the  Company  may  on  any  date  make  payments  of  or  in  respect  of  Subordinated        Indebtedness  if  at  the  time  of  making  such  payment and  immediately  after  giving  effect        (including pro forma effect) thereto, the Payment Condition shall be satisfied.         (b)   Furthermore,  no  Loan  Party  will,  nor  will  it  permit  any  Subsidiary  to,  amend  the Subordinated  Indebtedness  Documents  relating  to  any  Subordinated  Indebtedness  or  any  document, agreement or instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which such Indebtedness is issued where such amendment, modification or supplement amends, modifies or adds any provision thereof in a manner which (i) when taken as a whole, is materially adverse the Lenders or (ii) is                                             111





 






more onerous than the applicable provision in this Agreement (except in each case to the extent permitted under the applicable subordination agreement governing such Subordinated Indebtedness).         SECTION 6.11. Restrictive  Agreements . No Loan Party will, nor will it permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that restricts or imposes any condition upon (a) the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon any of its assets to secure the Secured Obligations or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Company or any Subsidiary; provided  that               (i)    the foregoing shall not apply to:                      (A)   restrictions and conditions imposed by law or by this Agreement or any              other Loan Document;                      (B)    restrictions  and  conditions  contained  in  any  agreement  or  document              governing or evidencing Refinancing Indebtedness in respect of Indebtedness referred to              in  clause   (A)   or  Refinancing  Indebtedness  in  respect  thereof;  provided   that  the              restrictions and conditions contained in any such agreement or document referred to in              this  clause   (B)   are  not  less  favorable  in  any  material  respect  to the  Lenders  than  the              restrictions and conditions imposed by this Agreement;                      (C)   restrictions  and  conditions  existing  on  the  date  hereof  identified  on              Schedule 6.11 ,  and  restrictions  and  conditions  contained in any agreement  evidencing              any renewal, extension or refinancing permitted hereunder of any agreement identified on              Schedule 6.11  so long as such renewal, extension or refinancing does  not  expand  the              scope of such restrictions or conditions;                      (D)   in the case of any Subsidiary that is not a wholly-owned  Subsidiary,              restrictions and conditions imposed by its organizational documents or any related joint              venture or similar agreements; provided  that such restrictions and conditions apply only              to such Subsidiary and to the Equity Interests of such Subsidiary;                      (E)    restrictions imposed by any agreement governing Indebtedness incurred              by  any  Loan  Party  or  any  Subsidiary  after  the  Effective  Date  and  permitted  under              Section 6.01  that are, taken as a whole, in the good faith judgment of the Company, no              more restrictive with respect to the Company or any Subsidiary than those contained in              this Agreement;                      (F)   customary restrictions and conditions contained in agreements relating to              the sale, transfer, lease or other Disposition of a Subsidiary or any assets of the Company              or any Subsidiary, in each case pending such transaction; provided  that, such restrictions              and conditions apply only to such Subsidiary or the assets that are to be sold, leased or              otherwise transferred and, in each case, such transaction is permitted hereunder;                      (G)   restrictions  relating  to  assets  encumbered  by  a  Lien  permitted  by              Section 6.02 ;                      (H)   [reserved];                                             112





 






                    (I)    restrictions  imposed  by  any  agreement  governing  Indebtedness  of  a              Subsidiary which is not a Loan Party to the extent such  Indebtedness  is  permitted  by              Section 6.01 ; and                      (J)   restrictions or conditions on cash or other deposits imposed by customers              under contracts entered into in the ordinary course of business; and               (ii)   clause (a)  of this Section 6.11  shall not apply to:                      (A)   restrictions and conditions imposed by any agreement relating to secured              Indebtedness permitted by clause  (f) , (g) , (h) , (j) , (k) , (m)  and (n)  of Section 6.01  if such              restrictions and conditions apply only to the assets securing such Indebtedness;                      (B)    customary provisions in leases, subleases, licenses and other agreements              restricting the assignment thereof; and                      (C)    restrictions  imposed  by  agreements  relating  to  Indebtedness  of  any              Subsidiary in existence at the time such Subsidiary became a Subsidiary and otherwise              permitted  by  Section 6.01(g) ;  provided   that  such  restrictions  apply  only  to  such              Subsidiary and its assets (or any special purpose acquisition Subsidiary without material              assets acquiring such Subsidiary pursuant to a merger).  Nothing  in  this  Section 6.11   shall  be  deemed  to  modify  the  obligations  of  the  Loan  Parties  under Section 5.14  or under the Collateral Documents.         SECTION 6.12. Fixed  Charge  Coverage  Ratio . During any FCCR Test Period, the Borrowers will not permit the Fixed Charge Coverage Ratio as of the last day of any period of four fiscal quarters ending during such FCCR Test Period, to be less than 1.00 to 1.00.         SECTION 6.13. [Intentionally Omitted] .         SECTION 6.14. Depository   Banks .  Each  Borrower  and  each  Subsidiary  will  maintain  the Administrative  Agent  as  its  principal  depository  bank,  including  for  the  maintenance  of  operating, administrative,  cash  management,  collection  activity and other deposit accounts for the conduct of its business; provided , however , that the Administrative Agent and the Lenders acknowledge and agree that the Borrowers and their Subsidiaries will not be required to maintain with the Administrative Agent any Excluded Accounts or any accounts governing controlled disbursement services provided by any financial institution other than the Administrative Agent.                                       ARTICLE VII                                      Events of Default         If any of the following events (“Events of Default ”) shall occur:         (a)   any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;        (b)    any Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a)  of this Article) payable under this Agreement or any other                                            113





 






Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days;         (c)   any representation or warranty made or deemed made by or on behalf of any Borrower or any  other  Loan  Party  in  or  in  connection  with  this Agreement  or  any  other  Loan  Document  or  any amendment  or  modification  hereof  or  thereof  or  waiver  hereunder  or  thereunder,  or  in  any  report, certificate,  financial  statement  or  other  document furnished  pursuant  to  or  in  connection  with  this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;         (d)   any Loan Party shall fail to observe or perform any covenant, condition or agreement contained  in  Section 5.02(a) ,  5.03   (with  respect  to  a  Borrower’s  existence),  5.08 ,  5.13 ,  5.14   or  in Article VI ;         (e)   any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those which constitute a default under another Section of this Article), and such failure shall continue unremedied for a period of (i) five (5) days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of Section 5.01 , 5.02  (other than Section 5.02(a) ), 5.03 , 5.04 , 5.05 , 5.07  or 5.09  of this Agreement or (ii) thirty (30) days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent  (which  notice  will  be  given  at  the  request  of  any  Lender)  if  such  breach  relates  to  terms  or provisions of any other Section of this Agreement;         (f)   any Loan Party or any Material Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness of such Loan Party or Material Subsidiary, as applicable, when and as the same shall become due and payable, which is not cured within any applicable grace period therefor;         (g)   any event or condition occurs that results in any Material  Indebtedness  becoming due prior to its scheduled maturity or that enables or permits, after giving effect to the expiration of any applicable  grace  period,  and  delivery  of  any  applicable  required  notice,  provided  in  the  applicable agreement  or  instrument  under  which  such  Indebtedness  was  created,  the  holder  or  holders  of  such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become  due,  or  to  require  the  prepayment,  repurchase,  redemption  or  defeasance  thereof,  prior  to  its scheduled maturity; provided  that this clause (g)  shall not apply to (i) secured Material Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement), (ii) any Material Indebtedness that becomes due as a result of a refinancing thereof permitted by Section 6.01 , (iii) any reimbursement obligation in respect of a letter of credit, bankers’ acceptance or similar obligation as a result of a drawing thereunder by  a  beneficiary  thereunder  in  accordance  with  its terms,  (iv)  any  such  Material  Indebtedness  that  is mandatorily  prepayable  prior  to  the  scheduled  maturity  thereof  with  the  proceeds  of  the  issuance  of capital stock, the incurrence of other Indebtedness or the sale or other disposition of any assets, so long as such Material Indebtedness that has become due is so prepaid in full with such net proceeds required to be used to prepay such Material Indebtedness when due (or within any applicable grace period) and such event shall not have otherwise resulted in an event of default with respect to such Material Indebtedness, (v)  any  redemption,  exchange,  repurchase,  conversion  or  settlement  with  respect  to  any  Permitted Convertible Notes, or satisfaction of any condition giving rise to or permitting the foregoing, pursuant to their terms unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event of the type that constitutes an Event of Default or (vi) any early payment requirement or                                            114





 






unwinding or termination with respect to any Permitted Call Spread Swap Agreement, or satisfaction of any  condition  giving  rise  to  or permitting the foregoing,  in  accordance  with  the  terms  thereof  where neither the Company nor any of its Affiliates is the “defaulting party” (or substantially equivalent term) under the terms of such Permitted Call Spread Swap Agreement;         (h)   an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking  (i) liquidation,  reorganization  or  other  relief  in  respect  of  any  Borrower  or  any  Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee,  custodian,  sequestrator,  conservator  or  similar  official  for  any  Borrower  or  any  Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;         (i)   any Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy,  insolvency,  receivership  or  similar  law  now  or  hereafter  in  effect,  (ii) consent  to  the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h)  of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,  conservator  or  similar  official  for  any  Borrower  or  any  Material  Subsidiary  or  for  a substantial  part  of  its  assets,  (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 or (vi) take any action for the purpose of effecting any of the foregoing;        (j)    any  Borrower  or  any  Material  Subsidiary  shall  become  unable,  admit  in  writing  its inability or fail generally to pay its debts as they become due;        (k)    one or more judgments for the payment of money in an aggregate amount in excess of $15,000,000 (to the extent not paid, fully bonded or covered by a solvent and unaffiliated insurer that has not  denied  coverage)  shall  be  rendered  against  any Loan  Party  or  any  Material  Subsidiary  or  any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed (by reason of pending appeal or otherwise), or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Material Subsidiary to enforce any such judgment and such action shall not have been stayed;        (l)    an ERISA Event shall have occurred that, when taken  together  with  all  other  ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;        (m)    a Change in Control shall occur;        (n)    the occurrence of any “default” or “Event  of  Default ”, as defined in any Loan Document (other than this Agreement), or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided (but if no specific grace period is provided therein, which default or breach continues beyond thirty (30) days after the earlier of knowledge of such default or breach or notice thereof);         (o)   any Loan Document, after execution thereof and for any reason other than as expressly permitted hereunder or thereunder or in satisfaction in full of the Obligations, ceases to be valid, binding and enforceable against the Company or any other Loan Party party thereto in accordance with its terms in all material respects (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any material                                            115





 






provision  of  any  of  the  Loan  Documents  has  ceased  to  be  or  otherwise  is  not  valid,  binding  and enforceable  in  accordance  with  its  terms  in  any  material  respect,  other  than  as  expressly  permitted hereunder or thereunder or the satisfaction in full in cash of the Obligations then due and payable); or         (p)   except as permitted by the terms of any Collateral Document or this Agreement, (i) any Collateral Document shall for any reason fail to create or keep created a valid security interest in any material portion of the Collateral purported to be covered thereby, or (ii) other than as a result of the failure of the Administrative Agent to take any action within its control to maintain perfection of the Liens created in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to the Loan Documents (excluding any action based on facts or circumstances for which the Administrative Agent has not been notified in accordance with the provisions of the Loan Documents), any Lien securing any material portion of the Secured Obligations shall cease to be a perfected Lien having the priority required by the Loan Documents;  then, and in every such event (other than an event with respect to any Borrower described in clause (h)  or (i)  of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent  may,  and  at  the  request  of  the  Required  Lenders  shall,  by  written  notice  to  the  Borrower Representative, take either or both of the following actions, at the same or different times: (i) terminate the  Commitments  and  thereupon  the  Commitments  shall  terminate  immediately,  (ii) declare  the  Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Secured  Obligations  of  the  Borrowers  accrued  hereunder  and  under  the  other  Loan  Documents,  shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers and (iii) require cash collateral for the LC Exposure in accordance  with  Section 2.06(j) ; and in case of any event with respect to any Borrower  described  in clause (h)  or (i)  of this Article, the Commitments shall automatically terminate and the principal of the Loans  then  outstanding  and  the  cash  collateral  for the  LC  Exposure,  together  with  accrued  interest thereon  and  all  fees  and  other  Secured  Obligations accrued  hereunder  and  under  the  other  Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders  shall,  exercise  any  rights  and  remedies  provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.                                       ARTICLE VIII                                  The Administrative Agent         SECTION 8.01. Authorization and Action .         (a)   Each Lender, on behalf of itself and any of its Affiliates that are Secured Parties and the Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan Documents and each Lender and the Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents  as  are  delegated  to  the  Administrative  Agent  under  such  agreements  and  to  exercise  such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Collateral Document governed  by  the  laws  of  such  jurisdiction  on  such  Lender’s  or  such  Issuing  Bank’s  behalf.  Without                                            116





 






limiting the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute  and  deliver,  and  to perform its obligations  under,  each  of  the  Loan  Documents  to  which  the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.        (b)    As to any matters not expressly provided for herein and in the other Loan Documents (including  enforcement  or  collection),  the  Administrative  Agent  shall  not  be  required  to  exercise  any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents),  and,  unless  and  until  revoked  in  writing,  such  instructions  shall  be  binding  upon  each Lender and the Issuing Bank; provided , however , that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Bank with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided , further , that the Administrative Agent may seek clarification or direction from the Required Lenders prior to  the  exercise  of  any  such  instructed  action  and  may  refrain  from  acting  until  such  clarification  or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent  shall  not  have  any  duty  to  disclose,  and  shall  not  be  liable  for  the  failure  to  disclose,  any information relating to any Borrower, any other Loan Party, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk  its  own  funds  or  otherwise  incur  any  financial  liability  in  the  performance  of  any  of  its  duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.        (c)    In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Bank (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:               (i)    the Administrative Agent does not assume and shall  not  be  deemed  to  have       assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or       for any Lender, Issuing Bank or Secured Party or holder of any other obligation other than as       expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an       Event of Default has occurred and is continuing (and it is understood and agreed that the use of       the term “agent” (or any similar term) herein or in any other Loan Document with reference to the       Administrative Agent is not intended to connote any fiduciary duty or other implied (or express)       obligations arising under agency doctrine of any applicable law, and that such term is used as a       matter of market custom and is intended to create or reflect only an administrative relationship       between contracting parties); additionally, each Lender agrees that it will not assert any claim       against  the  Administrative  Agent  based  on  an  alleged  breach  of  fiduciary  duty  by  the       Administrative Agent in connection with this Agreement  and/or  the  transactions  contemplated       hereby; and                                             117





 






             (ii)   nothing  in  this  Agreement  or  any  Loan  Document  shall  require  the        Administrative Agent to account to any Lender for any sum or the profit element of any sum        received by the Administrative Agent for its own account.         (d)   The Administrative Agent may perform any 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 of their respective duties and exercise their respective rights and powers 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  pursuant  to  this  Agreement.  The  Administrative  Agent  shall  not  be  responsible  for  the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines  in  a  final  and  non-appealable  judgment  that  the  Administrative  Agent  acted  with  gross negligence or willful misconduct in the selection of such sub-agent.         (e)   None of the Lead Arranger nor the Syndication Agent  shall  have  any  obligations  or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but shall have the benefit of the indemnities provided for hereunder.         (f)   In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement 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  any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:               (i)    to file and prove a claim for the whole amount of the principal and interest owing        and unpaid in respect of the Loans, LC Disbursements and all other Obligations that are owing        and unpaid and to file such other documents as may be necessary or advisable in order to have the        claims of the Lenders, the Issuing Bank and the Administrative Agent (including any claim under        Sections 2.12 , 2.13 , 2.15 , 2.17  and 9.03 ) allowed in such judicial proceeding; and               (ii)   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 proceeding is hereby authorized by each Lender, the Issuing Bank and each other Secured Party 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, the Issuing Bank or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent,  under  the  Loan  Documents  (including  under  Section 9.03 ).  Nothing  contained  herein  shall  be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.         (g)   The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Bank, and, except solely to the extent of the Borrowers’ right to consent pursuant to and subject to the conditions set forth in this Article, no Borrower nor any Subsidiary, or any of their                                            118





 






respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.         SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc.         (a)   Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Loan Documents (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to  or  provided  for  in,  or  received  by  the  Administrative  Agent  under  or  in  connection  with,  this Agreement  or  any  other  Loan  Document  or  for  the  value,  validity,  effectiveness,  genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.         (b)   The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Borrower Representative, a Lender or the Issuing Bank, and 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 any Loan Document, (ii) the contents of any certificate, report  or  other  document  delivered  thereunder  or  in  connection  therewith,  (iii)  the  performance  or observance  of  any  of  the  covenants,  agreements  or  other  terms  or  conditions  set  forth  in  any  Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV  or elsewhere in any Loan Document, other than to confirm receipt of  items  (which  on  their  face  purport  to  be  such  items)  expressly  required  to  be  delivered  to  the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent, or (vi) the creation, perfection or priority of Liens on the Collateral.         (c)   Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory  note  as  its  holder  until  such  promissory  note  has  been  assigned  in  accordance  with Section 9.04 , (ii) may rely on the Register to the extent set forth in Section 9.04(b) , (iii) may consult with legal  counsel  (including  counsel  to  the  Borrowers),  independent  public  accountants  and  other  experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance  with  the  advice  of  such  counsel,  accountants  or  experts,  (iv)  makes  no  warranty  or representation to any Lender or Issuing Bank and shall not be responsible to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this                                            119





 






Agreement  or  any  other  Loan  Document  by  acting  upon,  any  notice,  consent,  certificate  or  other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).         SECTION 8.03. Posting of Communications .         (a)   The Borrowers agree that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Bank by posting the Communications on  IntraLinksTM,  DebtDomain,  SyndTrak,  ClearPar  or  any  other  electronic  system  chosen  by  the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform ”).         (b)   Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable  security  procedures  and  policies  implemented  or  modified  by  the  Administrative Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank and each Borrower acknowledges and agrees that the distribution of material through an electronic  medium  is  not  necessarily  secure,  that  the  Administrative  Agent  is  not  responsible  for approving  or  vetting  the  representatives  or  contacts  of  any  Lender  that  are  added  to  the  Approved Electronic  Platform,  and  that  there  may  be  confidentiality  and  other  risks  associated  with  such distribution. Each of the Lenders, the Issuing Bank and each Borrower hereby approves distribution of the Communications through the Approved Electronic Platform  and  understands  and  assumes  the  risks  of such distribution.         (c)   THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED  “AS    IS ”  AND  “AS   AVAILABLE ”.  THE  APPLICABLE  PARTIES  (AS  DEFINED BELOW)  DO  NOT  WARRANT  THE  ACCURACY  OR  COMPLETENESS                    OF  THE COMMUNICATIONS,  OR  THE  ADEQUACY  OF  THE  APPROVED  ELECTRONIC  PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS  IN  THE  APPROVED ELECTRONIC  PLATFORM  AND  THE  COMMUNICATIONS. 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  THE  APPLICABLE  PARTIES  IN  CONNECTION  WITH  THE  COMMUNICATIONS  OR  THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, THE  LEAD  ARRANGER,  THE  SYNDICATION  AGENT  OR  ANY  OF         THEIR  RESPECTIVE RELATED  PARTIES  (COLLECTIVELY,  “APPLICABLE      PARTIES ”)  HAVE  ANY  LIABILITY  TO ANY  LOAN  PARTY,  ANY  LENDER,  ANY  ISSUING  BANK  OR  ANY  OTHER  PERSON  OR ENTITY  FOR  DAMAGES  OF  ANY  KIND,  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT  OR  OTHERWISE)  ARISING  OUT  OF  ANY  LOAN  PARTY’S  OR  THE ADMINISTRATIVE  AGENT’S  TRANSMISSION  OF  COMMUNICATIONS  THROUGH  THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.               “Communications ”  means,  collectively,  any  notice,  demand,              communication, information, document or other material provided by or              on  behalf  of  any  Loan  Party  pursuant  to  any  Loan  Document  or  the              transactions  contemplated  therein  which  is  distributed  by  the              Administrative  Agent,  any  Lender  or  Issuing  Bank  by  means  of                                            120





 






             electronic communications pursuant to this Section, including through an              Approved Electronic Platform.         (d)   Each Lender and Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender  for  purposes  of  the  Loan  Documents.  Each Lender and Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email  address  to  which  the  foregoing  notice  may  be sent  by  electronic  transmission  and  (ii)  that  the foregoing notice may be sent to such email address.         (e)   Each of the Lenders, Issuing Bank and each Borrower  agrees  that  the  Administrative Agent  may,  but  (except  as  may  be  required  by  applicable  law)  shall  not  be  obligated  to,  store  the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.        (f)    Nothing herein shall prejudice the right of the Administrative  Agent,  any  Lender  or Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.         SECTION 8.04. The  Administrative  Agent  Individually . With respect to its Commitment, Loans (including Swingline Loans) and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Bank”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly  otherwise  indicates,  include  the  Administrative  Agent  in  its  individual  capacity  as  a  Lender, Issuing Bank or as one of the Required Lenders, as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, any Loan Party, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the Issuing Bank.         SECTION 8.05. Successor Administrative Agent .         (a)   The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Bank and the Borrower Representative, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right, to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case,  such  appointment shall be subject to the prior  written  approval  of  the  Borrower  Representative (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with,  all  the  rights,  powers,  privileges  and  duties  of  the  retiring  Administrative  Agent.  Upon  the acceptance  of  appointment  as  Administrative  Agent  by  a  successor  Administrative  Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other  Loan  Documents.  Prior  to  any  retiring  Administrative  Agent’s  resignation  hereunder  as                                            121





 






Administrative  Agent,  the  retiring  Administrative  Agent  shall  take  such  action  as  may  be  reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.         (b)   Notwithstanding paragraph  (a)  of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Bank and the Borrowers, whereupon,  on  the  date  of  effectiveness  of  such  resignation  stated  in  such  notice,  (i)  the  retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided  that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit  of  the  Secured  Parties  and  continue  to  be  entitled  to  the  rights  set  forth  in  such  Collateral Document and Loan Document, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action  required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers,  privileges  and  duties  of  the  retiring  Administrative  Agent;  provided   that  (A)  all  payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and Issuing Bank. Following the effectiveness of the  Administrative  Agent’s  resignation  from  its  capacity  as  such,  the  provisions  of  this  Article, Section 2.17(d)   and  Section 9.03 ,  as  well  as  any  exculpatory,  reimbursement  and  indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (a)  above.         SECTION 8.06. Acknowledgements of Lenders and Issuing Bank .         (a)   Each Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that it has, independently and without reliance upon the Administrative  Agent,  the  Lead  Arranger,  the  Syndication  Agent  or  any  other  Lender,  or  any  of  the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arranger, the Syndication Agent or any other Lender, or any of the Related Parties of any of the foregoing, and based on such documents and informa- tion  (which  may  contain  material,  non-public  information  within  the  meaning  of  the  United  States securities  laws  concerning  the  Borrowers  and  their Affiliates)  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.         (b)   Each Lender, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which  it  shall  become  a  Lender  hereunder,  shall  be deemed  to  have  acknowledged  receipt  of,  and                                            122





 






consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the effective date of any such Assignment and Assumption or any other Loan Document pursuant to which it shall have become a Lender hereunder.         (c)   Each Lender hereby agrees that (i) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (ii) the Administrative  Agent  (A)  makes  no  representation  or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall not be liable for any information contained in any Report;  (iii) the Reports are not comprehensive audits or examinations,  and  that  any  Person  performing  any  field  examination  will  inspect  only  specific information  regarding  the  Loan  Parties  and  will  rely  significantly  upon  the  Loan  Parties’  books  and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes  no  obligation  to  update,  correct  or  supplement  the  Reports;  (iv)  it  will  keep  all  Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (v) without limiting the generality of any other indemnification provision contained in this Agreement, (A) it will hold the Administrative Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any extension  of  credit  that  the  indemnifying  Lender  has  made  or  may  make  to  a  Borrower,  or  the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorneys’ fees) incurred by the Administrative Agent or any such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.        SECTION 8.07. Collateral Matters .         (a)   Except with respect to the exercise of setoff rights in accordance with Section 9.08  or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative  Agent  is  hereby  authorized,  and  hereby  granted  a  power  of  attorney,  to  execute  and deliver  on  behalf  of  the  Secured  Parties  any  Loan  Documents  necessary  or  appropriate  to  grant  and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties.        (b)    In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Banking Services the obligations under which constitute Secured Obligations and no Swap Agreement the obligations under which constitute Secured Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any  Collateral  or  of  the  obligations  of  any  Loan Party  under  any  Loan  Document.  By  accepting  the benefits  of  the  Collateral,  each  Secured  Party  that  is  a  party  to  any  such  arrangement  in  respect  of Banking  Services  or  Swap  Agreement,  as  applicable, shall  be  deemed  to  have  appointed  the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and                                             123





 






agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.         (c)   The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under  any  Loan  Document  to  the  holder  of  any  Lien  on  such  property  that  is  permitted  by Section 6.02(b) . The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire  into  any  representation  or  warranty  regarding  the  existence,  value  or  collectability  of  the Collateral,  the  existence,  priority  or  perfection  of  the  Administrative  Agent’s  Lien  thereon  or  any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.         SECTION 8.08. Credit   Bidding .  The  Secured  Parties  hereby  irrevocably  authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in  accordance  with  any  applicable  law.  In  connection  with  any  such  credit  bid  and  purchase,  the Obligations  owed  to  the  Secured  Parties  shall  be  entitled  to  be,  and  shall  be,  credit  bid  by  the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such  vehicle  or  vehicles  for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized  to  adopt  documents  providing  for  the  governance  of  the  acquisition  vehicle  or  vehicles (provided   that  any  actions  by  the  Administrative  Agent  with respect  to  such  acquisition  vehicle  or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or  their  permitted  assignees  under  the  terms  of  this  Agreement  or  the  governing  documents  of  the applicable  acquisition  vehicle  or  vehicles,  as  the case  may  be,  irrespective  of  the  termination  of  this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02  of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations  assigned  to  the  acquisition  vehicle  exceeds  the  amount  of  Obligations  credit  bid  by  the acquisition  vehicle  or  otherwise),  such  Obligations  shall  automatically  be  reassigned  to  the  Secured Parties  pro  rata  with  their  original  interest  in  such  Obligations  and  the  equity  interests  and/or  debt                                            124





 






instruments  issued  by  any  acquisition  vehicle  on  account  of  such  Obligations  shall  automatically  be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause  (ii)  above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party  which  will  receive  interests  in  or  debt  instruments  issued  by  such  acquisition  vehicle)  as  the Administrative  Agent  may  reasonably  request  in  connection  with  the  formation  of  any  acquisition vehicle,  the  formulation  or  submission  of  any  credit  bid  or  the  consummation  of  the  transactions contemplated by such credit bid.         SECTION 8.09. Certain ERISA Matters .         (a)   Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower or any other Loan Party, that at least one of the following is and will be true:               (i)    such Lender is not using “plan assets” (within the  meaning  of  the  Plan  Asset       Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or       the Commitments,               (ii)   the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a       class exemption for certain transactions determined by independent qualified professional asset       managers), PTE 95-60 (a class exemption for certain transactions involving insurance company       general  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 Letters of       Credit, 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  Letters  of  Credit,  the  Commitments  and  this        Agreement,  (C)  the  entrance  into,  participation  in,  administration  of  and  performance  of  the        Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of        sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender,        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        Letters of Credit, the Commitments and this Agreement, or               (iv)   such other representation, warranty and covenant as may be agreed in writing       between the Administrative Agent, in its sole discretion, and such Lender.         (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                                            125





 






hereto, for the benefit of, the Administrative Agent, the Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower or any other Loan Party, that none of  the  Administrative  Agent,  the  Lead  Arranger,  the  Syndication  Agent  or  any  of  their  respective Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).        (c)    The Administrative Agent, the Syndication Agent and the Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans,  the  Letters  of  Credit  or  the  Commitments  by such  Lender  or  (iii)  may  receive  fees  or  other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.        SECTION 8.10. Flood  Laws . JPMCB has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and related legislation (the “Flood  Laws ”). JPMCB, as administrative agent or collateral agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each Lender in  the  syndicate)  documents  that  it  receives  in  connection  with  the  Flood  Laws.  However,  JPMCB reminds  each  Lender  and  Participant  in  the  facility  that,  pursuant  to  the  Flood  Laws,  each  federally regulated Lender (whether acting as a Lender or Participant in the facility) is responsible for assuring its own compliance with the flood insurance requirements.                                        ARTICLE IX                                       Miscellaneous         SECTION 9.01. Notices .         (a)   Except in the case of notices and other communications expressly permitted to be given by telephone or Electronic Systems (and subject in each case to paragraph  (b)  below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:               (i)    if to any Loan Party, to the Borrower Representative at:                      Winnebago Industries, Inc.                     13200 Pioneer Trail, Suite 150                     Eden Prairie, MN 55347                     Attention: Bert Jameson, Treasurer                                             126





 






             (ii)   if to the Administrative Agent (other than for purposes of a notification of the        DQ List), JPMCB in its capacity as an Issuing Bank or the Swingline Lender, to JPMCB at:                      JPMorgan Chase Bank, N.A.                     10 S. Dearborn St.                     Chicago, Illinois 60603                     Attention: John Morrone                     Facsimile No: (312) 548-1943               (iii)  if to the Administrative Agent for purposes of a notification of the DQ List, to        JPMDQ_Contact@jpmorgan.com; and               (iv)   if to any other Lender or Issuing Bank, to it at its address or facsimile number set       forth in its Administrative Questionnaire.        All  such  notices  and  other  communications  (i)  sent by  hand  or  overnight  courier  service,  or mailed by certified or registered mail, shall be deemed to have been given when received, (ii) sent by facsimile  shall  be  deemed  to  have  been  given  when  sent,  provided   that  if  not  given  during  normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening  of  business  on  the  next  Business  Day  of  the  recipient,  or  (iii)  delivered  through  Electronic Systems or Approved Electronic Platform, as applicable, to the extent provided in paragraph  (b)  below shall be effective as provided in such paragraph.         (b)   Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered or furnished by using Electronic Systems or Approved Electronic Systems, as applicable, or pursuant to procedures approved by the Administrative Agent; provided  that the foregoing shall not apply to notices pursuant to Article II  unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept notices and other  communications  to  it  hereunder  by  Electronic Systems  or  Approved  Electronic  Platforms,  as applicable, pursuant to procedures approved by it; provided  that approval of such procedures may be limited to particular notices or communications.         Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided  that if not given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given 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; provided  that, for both clauses (i)  and (ii)  above, if such notice, email 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.         (c)   Any  party  hereto  may  change  its  address  or  telecopy  number  for  notices  and  other communications hereunder by notice to the other parties hereto. Unless otherwise set forth herein, all notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.                                             127





 






       SECTION 9.02. Waivers; Amendments .        (a)    No failure or delay by the Administrative Agent, any  Issuing  Bank  or  any  Lender  in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof,  nor  shall  any  single  or  partial  exercise  of  any  such  right  or  power,  or  any  abandonment  or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks  and  the  Lenders  hereunder  and  under  the  other  Loan  Documents  are  cumulative  and  are  not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be  effective  only  in  the  specific  instance  and  for the  purpose  for  which  given.  Without  limiting  the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.        (b)    Except  as  provided  in  the  first  sentence  of  Section 2.09(f)   (with  respect  to  any commitment increase), Section 2.14(b)  with respect to an alternate rate of interest to the LIBO Rate or Section 6.03(c)  with respect to changes in fiscal year, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided  that no such agreement shall:               (i)    increase the Commitment of any Lender without the written  consent  of  such        Lender (including any such Lender that is a Defaulting Lender); provided  that, a waiver of any        condition  precedent  set  forth  in  Section 4.02   or  the  waiver  of  any  Default  or  mandatory       prepayment shall not constitute an increase of any Commitment of any Lender;               (ii)   reduce or forgive the principal amount of any Loan  or  LC  Disbursement  or       reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder,       without  the  written  consent  of  each  Lender  (including  any  such  Lender  that  is  a  Defaulting       Lender)  directly  affected  thereby;  provided   that  (x)  any  amendment  or  modification  of  the        financial covenants in this Agreement (or defined terms used in the financial covenants in this        Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this        clause  (ii)  and (y) only the consent of the Required Lenders shall be necessary to reduce or waive        any obligation of the Borrowers to pay interest or any other amount at the applicable default rate        set forth in Section 2.13(c)  or to amend Section 2.13(c) ;               (iii)  postpone the scheduled date of payment of the principal amount of any Loan or        LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount        of,  waive  or  excuse  any  such  payment,  or  postpone  the  scheduled  date  of  expiration  of  any        Commitment, without the written consent of each Lender (including any such Lender that is a        Defaulting Lender) directly affected thereby (other than with respect to the matters set forth in        clauses (ii)(x)  and (ii)(y)  above);               (iv)   change Section 2.09(d)  or Section 2.18(b)  or (d) in a manner that would alter the       pro rata sharing of payments required thereby, without the written consent of each Lender (other        than any Defaulting Lender);               (v)    change the definition of any Borrowing Base (or any defined terms used therein)        in a manner that makes more credit available, increase the advance rates set forth in the definition                                            128





 






       of Borrowing Base or add new categories of eligible  assets,  in  each  case,  without  the  written        consent of each Lender (other than any Defaulting Lender);               (vi)   change  any  of  the  provisions  of  this  Section or  the  definition  of  “Required        Lenders ” or any other provision of any Loan Document specifying the number or percentage of        Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or        make any determination or grant any consent thereunder,  without  the  written  consent  of  each        Lender (other than any Defaulting Lender);               (vii)  release  all  or  substantially  all  of  the value of the  Loan  Guaranty  (except  as        otherwise permitted  herein or in the other Loan Documents,  including  with  respect  to  a  sale,        disposition or dissolution of a Loan Guarantor permitted herein), without the written consent of        each Lender (other than any Defaulting Lender); or               (viii) except as provided in clause (d)  of this Section or in any Collateral Document,       release all or substantially all of the Collateral, without the written consent of each Lender (other       than any Defaulting Lender);  provided  further  that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of  the  Administrative  Agent,  any  Issuing  Bank  or  the  Swingline  Lender  hereunder  without  the  prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.20  shall require the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender) and (B) no such agreement shall amend or modify the provisions of Section 2.06  or any letter of credit application and any bilateral agreement between the Borrower Representative and the Issuing Bank regarding the Issuing Bank’s Issuing Bank Sublimit or the respective  rights  and  obligations  between  any  Borrower  and  the Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and the Issuing Bank,  respectively.  The  Administrative  Agent  may  also  amend  the  Commitment  Schedule to  reflect assignments entered into pursuant to Section 9.04 .         (c)   Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent  and  each  Borrower  (x) to  add  one  or  more  credit  facilities  to  this  Agreement  and  to  permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof  to  share  ratably  in  the  benefits  of  this  Agreement  and  the  other  Loan  Documents  with  the Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.        (d)    The  Lenders  and  the  Issuing  Bank  hereby  irrevocably  authorize  the  Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon satisfaction of the Final Release Conditions, (ii) constituting property  being  sold  or  disposed  of  if  the  Loan  Party  disposing  of  such  property  certifies  to  the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests of a Subsidiary,  the  Administrative  Agent  is  authorized to  release  any  Loan  Guaranty,  (iii) constituting property leased to a Loan Party under a lease which  has  expired  or  been  terminated  in  a  transaction permitted under this Agreement, (iv) constituting Excluded Assets or (v) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent  and  the  Lenders  pursuant  to  Article VII .  Except  as  provided  in  the  preceding  sentence,  the Administrative Agent will not release any Liens on Collateral without the prior written authorization of                                            129





 






the Required Lenders; provided  that, the Administrative Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $7,500,000 during any calendar year without the prior written authorization of the Required Lenders(it being agreed that the Administrative Agent may rely conclusively  on  one  or  more  certificates  of  the  Borrowers  as  to  the  value  of  any  Collateral  to  be  so released, without further inquiry). Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted  by  Section 6.02(e)  or (ii) in the event that the Company shall have advised the Administrative Agent that, notwithstanding the use by the Company of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause  (i)  above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s Liens on such assets. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part  of  the  Collateral.  Any  execution  and  delivery by  the  Administrative  Agent  of  documents  in connection with any such release shall be without recourse to or warranty by the Administrative Agent.         (e)   If, in connection with any proposed amendment, waiver or consent requiring the consent of  “each  Lender”  or  “each  Lender  directly  affected thereby,”  the  consent  of  the  Required  Lenders  is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting  Lender ”), then the Company may  elect  to  replace  a  Non-Consenting  Lender  as  a  Lender  party  to  this  Agreement,  provided   that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to  become  a  Lender  for  all  purposes  under  this  Agreement  and  to  assume  all  obligations  of  the Non-Consenting  Lender  to  be  terminated  as  of  such  date  and  to  comply  with  the  requirements  of clause (b)  of Section 9.04 , and (ii) such Non-Consenting Lender shall have received in same day funds on the  day  of  such  replacement  (1) all  interest,  fees and  other  amounts  then  accrued  but  unpaid  to  such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15  and 2.17 , and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16  had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower Representative, the Administrative Agent and the assignee  (or,  to  the  extent  applicable,  an  agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed  to  have  consented  to  and  be  bound  by  the  terms  thereof;  provided   that,  following  the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided  that any such documents shall be without recourse to or warranty by the parties thereto.         (f)   Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Borrowers only, amend, modify or supplement this Agreement or any of the other Loan                                            130





 






Documents  (i)  to  correct,  amend,  resolve  or  cure  any  ambiguity,  omission,  mistake,  defect  or inconsistency or correct any typographical error or other manifest error in any Loan Document, (ii) to comply  with  local  law  or  advice  of  local  counsel  in  any  jurisdiction  the  laws  of  which  govern  any Collateral Document or that are relevant to the creation, perfection, protection and/or priority of any Lien in  favor  of  the  Administrative  Agent,  (iii)  to  effect  the  granting,  perfection,  protection,  expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit  of  the  Secured  Parties,  (iv) to  make  administrative  or  operational  changes  not  adverse  to  any Lender or (v) to add a guarantor or collateral or otherwise enhance the rights and benefits of the Lenders.        SECTION 9.03. Expenses; Indemnity; Damage Waiver .         (a)   The  Loan  Parties  shall,  jointly  and  severally,  pay  (i) all  reasonable  out-of-pocket expenses  incurred  by  the  Administrative  Agent  and  the  Lead  Arranger  and  their  respective  Affiliates (including the reasonable and documented fees, disbursements and other charges of one primary counsel and one local counsel in each applicable jurisdiction for the Administrative Agent and the Lead Arranger and their respective Affiliates, in each case, for all such parties taken together) in connection with the syndication  and  distribution  (including,  without  limitation,  via  the  internet  or  through  any  Electronic System or Approved Electronic Platform) of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers  of  the  provisions  hereof  or  thereof  (whether  or  not  the  transactions  contemplated  hereby  or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender (including the reasonable  and  documented  fees,  disbursements  and  other charges  of  one  primary  counsel  and  one  local  counsel  in  each  applicable  jurisdiction  for  the Administrative Agent, the Issuing Banks and the Lenders taken as a whole (and, in light of actual or potential conflicts of interest or the availability of different claims or defenses (as reasonably determined by the affected party), one additional firm of counsel to each group of similarly affected parties)) in connection with the enforcement or protection of its rights in connection with this Agreement and any other Loan Document, including its rights under this Section, or in connection with the Loans made or Letters  of  Credit  issued  hereunder,  including  all  such  out-of-pocket  expenses  incurred  during  any workout,  restructuring  or  negotiations  in  respect  of  such  Loans  or  Letters  of  Credit.  Expenses  being reimbursed  by  the  Loan  Parties  under  this  Section include,  without  limiting  the  generality  of  the foregoing, fees, costs and expenses incurred in connection with:               (i)    subject  to  the  limits  set  forth  in  Sections 5.11   and  5.12 ,  appraisals,  field        examinations and the preparation of Reports based on the fees charged by a third party retained       by the Administrative Agent or the internally allocated  fees  for  each  Person  employed  by  the       Administrative Agent with respect to each appraisal and field examination;               (ii)   background checks regarding senior management of the Loan Parties, as deemed        necessary or appropriate in the sole discretion of the Administrative Agent;               (iii)  Other  Taxes,  fees  and  other  charges  for  (A) lien  and  title  searches  and  title       insurance and (B) recording the Mortgages, filing financing  statements  and  continuations,  and       other actions to perfect, protect, and continue the Administrative Agent’s Liens;               (iv)   sums paid or incurred to take any action required of any Loan Party under the        Loan Documents that such Loan Party fails to pay or take; and                                             131





 






             (v)    forwarding loan proceeds, collecting checks and other  items  of  payment,  and       establishing and maintaining the accounts and lock boxes, and costs and expenses of preserving       and protecting the Collateral.  All of the foregoing fees, costs and expenses may be charged to the Company as Revolving Loans or to another deposit account, all as described in Section 2.18(c) .         (b)   The Loan Parties shall, jointly and severally, indemnify the Administrative Agent, the Arranger, the Syndication Agent, each Issuing Bank and each Lender, 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, penalties, incremental taxes, liabilities and related expenses (including the reasonable and documented fees, charges and disbursements and other charges of (x)  one  primary  counsel  and  one  local  counsel  in  each  applicable  jurisdiction,  in  each  case  for  the Indemnitees taken as a whole and (y) one additional counsel for each affected Indemnitee in light of actual or potential conflicts of interest or the availability of different claims or defenses) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any of its Subsidiaries, (iv) the failure of a Loan Party to deliver to the Administrative Agent the required receipts or other required documentary evidence with respect  to  a payment made by a Loan Party for Taxes  pursuant  to  Section 2.17 ,  or  (v) any  actual  or prospective  claim,  litigation,  investigation,  arbitration  or  proceeding  relating  to  any  of  the  foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Company or any other Loan Party or its or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory, and regardless of whether any Indemnitee is a party thereto; provided  that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses 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  (y)  the  material  breach  in  bad  faith  by  such Indemnitee of its express obligations under this Agreement pursuant to a claim initiated by the Company. This  Section 9.03(b)  shall not apply with respect to Taxes other than any  Taxes  that  represent  losses, claims or damages arising from any non-Tax claim.         (c)   Each Lender severally agrees to pay any amount required to be paid by any Loan Party under paragraph  (a)  or (b)  of this Section 9.03  to the Administrative Agent, each Issuing Bank and the Swingline Lender, and each Related Party of any of the foregoing Persons (each, an “Agent  Indemnitee ”) (to the extent not reimbursed by a Loan Party and without limiting the obligation of any Loan Party to do so),  ratably  according  to  their  respective  Applicable  Percentage  in  effect  on  the  date  on  which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), from and against any and all losses, claims, damages,  liabilities  and  related  expenses,  including  the  fees,  charges  and  disbursements  of  any  kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred  by  or  asserted  against  such  Agent  Indemnitee  in  any  way  relating  to  or  arising  out  of  the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or                                            132





 






omitted by such Agent Indemnitee under or in connection with any of the foregoing; 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 such Agent Indemnitee in its capacity as such; provided , further , that  no  Lender  shall  be  liable  for  the  payment  of  any  portion  of  such  liabilities,  obligations,  losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and  nonappealable  decision  of  a  court  of  competent jurisdiction  to  have  resulted  from  such  Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section until satisfaction of the Final Release Conditions.         (d)   To the extent permitted by applicable law, no Loan  Party  shall  assert,  and  each  Loan Party hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet) other than actual or direct damages that are determined by a court  of  competent  jurisdiction  by  final  and  nonappealable  judgment  to  have  resulted  from  the  gross negligence or willful misconduct of such Indemnitee or any of its Related Parties. To the extent permitted by applicable law, no Indemnitee shall assert against any Loan Party or its Related Parties and no Loan Party shall assert against any Indemnitee, and each Indemnitee and Loan Party hereby waives, any claim, or (ii) 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 or thereby, the Transactions, any Loan  or  Letter  of  Credit  or  the  use  of the proceeds  thereof;  provided   that,  nothing  contained  in  this sentence shall limit the Company’s indemnity obligations to the extent set forth in Section 9.03(b) .         (e)   All amounts due under this Section shall be payable not later than fifteen (15) days after written demand therefor.         SECTION 9.04. Successors and Assigns .         (a)   The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the relevant  Issuing  Bank  that  issues  any  Letter  of  Credit),  except  that  (i) no  Borrower  may  assign  or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. 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 (including any Affiliate of the relevant Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c)  of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.        (b)    (i) Subject to the conditions set forth in paragraph (b)(ii)  below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:                      (A)   the  Borrower  Representative;  provided   that,  (i)  the  Borrower              Representative shall be deemed to have consented to any assignment unless it shall object              thereto by written notice to the Administrative Agent within five (5) Business Days after              having received notice thereof and (ii) no consent of the Borrower Representative shall                                            133





 






             be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,              if an Event of Default has occurred and is continuing, any other assignee;                      (B)   the Administrative Agent;                      (C)   each Issuing Bank; and                      (D)   the Swingline Lender.               (ii)   Assignments shall be subject to the following additional conditions:                      (A)   except  in  the  case  of  an  assignment  to  a  Lender  or  an  Affiliate  of  a              Lender or an Approved Fund or an assignment of the entire remaining amount of the              assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment              or 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)  shall  not  be  less  than  $5,000,000  unless  each  of  the  Borrower              Representative and the Administrative Agent otherwise consent, provided  that no such              consent  of  the  Borrower  Representative  shall  be  required  if  an  Event  of  Default  has              occurred and is continuing;                      (B)    each  partial  assignment  shall  be  made  as  an  assignment  of  a              proportionate  part  of  all  the  assigning  Lender’s  rights  and  obligations  under  this              Agreement;                      (C)    the  parties  to  each  assignment  shall  execute  and  deliver  to  the              Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable,              an agreement incorporating an Assignment and Assumption by reference pursuant to a              Platform as to which the Administrative Agent and the  parties  to  the  Assignment  and              Assumption are participants, together with a processing and recordation fee of $3,500              (unless waived by the Administrative Agent), such fee to be paid by either the assigning              Lender or the assignee Lender or shared between such Lenders; provided  that (1) only              one such processing and recordation fee shall be payable in the event of simultaneous              assignments and delegations from any Lender or its Approved Funds to one or more other              Approved Funds of such Lender and (2) with respect to any assignment and delegation              pursuant to Section 2.19(b)  or 9.02(e) , the parties hereto agree that such assignment and              delegation may be effected pursuant to an Assignment and Assumption executed by the              Company,  the  Administrative  Agent and the assignee and  that  the  Lender  required  to              make such assignment and delegation need not be a party thereto; and                      (D)   the  assignee,  if  it  shall  not  be  a  Lender,  shall  deliver  to  the              Administrative Agent an Administrative Questionnaire in which the assignee designates              one or more credit contacts to whom all syndicate-level information (which may contain              MNPI about the Company and its affiliates and their Related Parties or their respective              securities) will be made available and who may receive such information in accordance              with  the  assignee’s  compliance  procedures  and  applicable  laws, including Federal and              state securities laws.        For the purposes of this Section 9.04(b) , the terms “Approved  Fund ” and “Ineligible  Institution ” have the following meanings:                                             134





 






       “Approved   Fund ” means any Person (other than a natural person) that  is  engaged  in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and 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.        “Ineligible  Institution ” means (a) a natural person, (b) a Defaulting Lender or its Lender Parent, (c) the Borrowers, any of their Subsidiaries or any of their Affiliates, (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (e) a Disqualified Lender.               (iii)  Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)  of this        Section,  from  and  after  the  effective  date  specified  in  each  Assignment  and  Assumption  the        assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such        Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,        and  the  assigning  Lender  thereunder  shall,  to  the  extent  of  the  interest  assigned  by  such        Assignment and Assumption, be released from its obligations under this Agreement (and, in the        case  of  an  Assignment  and  Assumption  covering  all  of  the  assigning  Lender’s  rights  and        obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue        to be entitled to the benefits of Sections 2.15 , 2.16 , 2.17  and 9.03 ). Any assignment or transfer by        a  Lender  of  rights  or  obligations  under  this  Agreement  that  does  not  comply  with  this        Section 9.04   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 paragraph (c)  of this Section.               (iv)   The Administrative Agent, acting for this purpose as a non-fiduciary agent of       each Borrower, shall maintain at one of its offices 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  Commitment  of,  and  principal  amount  (and  stated  interest)  of  the  Loans  and  LC       Disbursements  owing  to,  each  Lender  pursuant  to  the  terms  hereof  from  time  to  time  (the       “Register ”).  The  entries  in  the  Register  shall  be  conclusive,  and  the  Borrowers,  the        Administrative Agent, the Issuing Banks 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.  The  Register  shall  be  available  for        inspection by the Company, any Issuing Bank and any Lender, at any reasonable time and from        time to time upon reasonable prior notice.               (v)    Upon its receipt of (x) a duly completed Assignment and Assumption executed       by  an  assigning  Lender  and  an  assignee  or  (y)  to  the  extent  applicable,  an  agreement       incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the       Administrative  Agent  and  the  parties to the Assignment  and  Assumption  are  participants,  the       assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender       hereunder), the processing and recordation fee referred to in paragraph (b)  of this Section and any        written consent to such assignment required by paragraph (b)  of this Section, the Administrative        Agent  shall  accept  such  Assignment  and  Assumption  and  record  the  information  contained        therein in the Register; provided  that if either the assigning Lender or the assignee shall have        failed to make any payment required to be made by it pursuant to Section 2.05(c) , 2.06(d)  or (e) ,        2.07(b) ,  2.18(d)   or  9.03(c) ,  the  Administrative  Agent  shall  have  no  obligation  to  accept  such        Assignment and Assumption and record the information therein in the Register unless and until        such  payment  shall  have  been  made  in  full,  together  with  all  accrued  interest  thereon.  No        assignment shall be effective for purposes of this Agreement unless it has been recorded in the        Register as provided in this paragraph.                                            135





 






       (c)   Any Lender may, without the consent of, or notice to, any Borrower, the Administrative Agent,  the  Issuing  Banks  or  the  Swingline  Lender,  sell  participations  to  one  or  more  banks  or  other entities (a “Participant ”), other than an Ineligible Institution, in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to  it);  provided   that  (A) such  Lender’s  obligations  under  this  Agreement  shall  remain  unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided  that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b)   that affects  such  Participant.  Each  Lender  that  sells  a participation  agrees,  at  any  Borrower’s  request  and expense,  to  use  reasonable  efforts  to  cooperate  with  such  Borrower  to  effectuate  the  provisions  of Section 2.19  with respect to any Participant. Each Borrower agrees that each Participant shall be entitled to  the  benefits  of  Sections 2.15 ,  2.16   and  2.17   (subject  to  the  requirements  and  limitations  therein, including  the  requirements  under  Section 2.17(f)   and  (g)   (it  being  understood  that  the  documentation required  under  Section 2.17(f)   shall  be  delivered  to  the  participating  Lender  and  the  information  and documentation required under 2.17(g)  will be delivered to the Borrowers and the Administrative Agent)) to  the  same  extent  as  if  it  were  a  Lender  and  had  acquired  its  interest  by  assignment  pursuant  to paragraph (b)  of this Section; provided  that such Participant (A) agrees to be subject to the provisions of Sections 2.18  and 2.19  as if it were an assignee under paragraph (b)  of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15  or 2.17 , with respect to any participation, than its  participating  Lender  would  have  been  entitled  to  receive,  except  to  the  extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable  participation. To the extent permitted by law, each Participant also shall be entitled to the benefits  of  Section 9.08  as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c)  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 Borrowers, maintain a register on which it enters the name and  address  of  each  Participant  and  the  principal  amounts  (and  stated  interest)  of  each  Participant’s interest  in  the  Loans  or  other  obligations  under  the  Loan  Documents  (the  “Participant   Register ”); provided  that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each  case,  any  amended  or  successor  version).  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.        (d)    Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided  that no such pledge or assignment of a security  interest  shall  release  a  Lender  from  any  of  its  obligations  hereunder  or  substitute  any  such pledgee or assignee for such Lender as a party hereto.                                            136





 






 (e)   Disqualified Lenders .         (i)    No  assignment  or  participation  shall  be  made  to  any  Person  that  was  a  Disqualified Lender as of the date (the “Trade  Date ”) on which the assigning Lender entered into  a binding agreement to sell and assign or grant a participation in all or a portion of its rights and  obligations under this Agreement to such Person (unless  the  Company  has  consented  to  such  assignment  or  participation  in  writing  in  its  sole and  absolute  discretion,  in  which  case  such  Person  will  not  be  considered  a  Disqualified  Lender  for  the  purpose  of  such  assignment  or participation).  For  the  avoidance  of  doubt,  with  respect  to  any  assignee  or  Participant  that becomes  a  Disqualified  Lender  after  the  applicable Trade  Date  (including  as  a  result  of  the  delivery of a notice pursuant to, and/or the expiration  of  the  notice  period  referred  to in, the  definition of “Disqualified  Lender ”), (x) such assignee or Participant shall not retroactively be disqualified  from  being a Lender or Participant and  (y)  the  execution  by  the  Company  of  an Assignment  and  Assumption  with  respect  to  such  assignee  will  not  by  itself  result  in  such assignee no longer being considered a Disqualified Lender. Any assignment or participation in violation of this clause  (e)(i)  shall not be void, but the other provisions of this clause  (e)  shall  apply.         (ii)   If any assignment or participation is made to any Disqualified Lender without the  Company’s prior written consent in violation of clause   (i)  above, or if any Person becomes a  Disqualified Lender after the applicable Trade Date, the Company may, at its sole expense and  effort, upon notice to the applicable Disqualified Lender and the Administrative Agent, require  such  Disqualified  Lender  to  assign,  without  recourse  (in  accordance  with  and  subject  to  the  restrictions  contained  in  this  Section 9.04 ), all of its interest, rights and obligations under  this Agreement to one or more Persons (other than an Ineligible Institution) at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests,  rights  and  obligations  in  each  case  plus  accrued  interest,  accrued  fees  and  all  other amounts (other than principal amounts) payable to it hereunder.         (iii)  Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, Disqualified Lenders to whom an assignment or participation is made in violation of clause  (i)  above (A) will not have the right to (x) receive information, reports or other materials provided to  Lenders by the Company, the Administrative Agent or any other Lender, (y) attend or participate  in meetings attended by the Lenders (or any of them) and the Administrative Agent, or (z) access  any electronic site established for the Lenders or confidential communications from counsel to or  financial advisors of the Administrative Agent or the Lenders and (B)(x) for purposes of any  consent to any amendment, waiver or modification of, or any action under, and for the purpose of  any direction to the Administrative Agent or any Lender to undertake any action (or refrain from  taking any action) under this Agreement or any other Loan Document, each Disqualified Lender  will be deemed to have consented in the same proportion as the Lenders that are not Disqualified  Lenders consented to such matter, and (y) for purposes of voting on any plan of reorganization,  each  Disqualified  Lender  party  hereto  hereby  agrees  (1) not  to  vote  on  such  plan  of  reorganization,  (2)  if  such  Disqualified  Lender  does  vote  on  such  plan  of  reorganization  notwithstanding the restriction in the foregoing clause  (1) , such vote will be deemed not to be in  good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any  similar provision in any other applicable laws), and such vote shall not be counted in determining  whether the applicable class has accepted or rejected such plan of reorganization in accordance  with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other applicable  laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court  (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2) .                                      137





 






             (iv)   The  Administrative  Agent  shall  have  the  right,  and  the  Company  hereby        expressly  authorizes  the  Administrative  Agent,  to  (A)  post  the  list  of  Disqualified  Lenders       provided by the Company and any updates thereto from time to time (collectively, the “DQ List ”)        on an Approved Electronic Platform, including that portion of such Approved Electronic Platform        that is designated for “public side” Lenders and/or (B) provide the DQ List to each Lender or       potential Lender requesting the same.               (v)    The Administrative Agent and the Lenders shall not be responsible or have any        liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the       provisions  hereof  relating  to  Disqualified  Lenders.  Without  limiting  the  generality  of  the        foregoing, neither the Administrative Agent nor any Lender shall  (x) be obligated to ascertain,       monitor  or  inquire  as  to  whether  any  other  Lender  or  Participant  or  prospective  Lender  or       Participant is a Disqualified  Lender or (y) have any liability with respect to or arising out of any        assignment  or  participation  of  Loans,  or  disclosure  of  confidential  information,  by  any  other        Person to any  Disqualified Lender.           SECTION 9.05. Survival .  All  covenants,  agreements,  representations  and  warranties  made  by the  Loan  Parties  in  the  Loan  Documents  and  in  the  certificates  or  other  instruments  delivered  in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents  and  the  making  of  any  Loans  and  issuance of  any  Letters  of  Credit,  regardless  of  any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Final Release Conditions have been satisfied. The provisions of Sections 2.15 , 2.16 , 2.17   and  9.03   and  Article VIII   shall  survive  and  remain  in  full  force  and  effect regardless  of  the consummation  of  the  transactions  contemplated  hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.        SECTION 9.06. Counterparts;  Integration;  Effectiveness;  Electronic  Execution . This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to (i) fees payable to the Administrative Agent and (ii) increases or reductions of the Issuing Bank Sublimit of the Issuing Bank constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except  as  provided  in  Section 4.01 ,  this  Agreement  shall  become  effective  when  it  shall  have  been executed  by  the  Administrative  Agent  and  when  the  Administrative  Agent  shall  have  received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, e-mailed.pdf or any other electronic means  that  reproduces  an  image  of  the  actual  executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words  “execution,”  “signed,”  “signature,”  “delivery,”  and  words  of  like  import  in  or  relating  to  any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic 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 thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other                                            138





 






similar state laws based on the Uniform Electronic Transactions Act; provided  that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent.         SECTION 9.07. Severability . Any provision of any Loan Document held to be invalid, illegal or unenforceable  in  any  jurisdiction  shall,  as  to  such  jurisdiction,  be  ineffective  to  the  extent  of  such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.         SECTION 9.08. Right  of  Setoff . If an Event of Default shall have occurred and be continuing, each Lender, the Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held, and other obligations at any time owing, by such Lender, the Issuing Bank or any such Affiliate, to or for the credit or the account of any Loan Party  against  any and all of the Secured Obligations  held  by  such  Lender,  the  Issuing  Bank  or  their respective Affiliates, irrespective of whether or not such Lender, the Issuing Bank or their respective Affiliates shall have made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or the Issuing Bank different  from  the  branch  office  or  Affiliate  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 2.20  and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Bank, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The applicable Lender, the Issuing Bank or such Affiliate shall notify the Borrower Representative and the Administrative Agent of such setoff or application,  provided   that  any  failure  to  give  or  any  delay  in  giving  such  notice  shall  not  affect  the validity of any such setoff or application under this Section. The rights of each Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank or their respective Affiliates may have.         SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process .         (a)   The Loan Documents (other than those containing a contrary  express  choice  of  law provision) shall be governed by and construed in accordance with the internal laws of the State of New York, but giving effect to federal laws applicable to national banks.        (b)    Each  of  the  Lenders  and  the  Administrative  Agent  hereby  irrevocably  and unconditionally  agrees  that,  notwithstanding  the  governing  law  provisions  of  any  applicable  Loan Document, any claims brought against the Administrative Agent by any Secured Party relating to this Agreement,  any  other  Loan  Document,  the  Collateral or  the  consummation  or  administration  of  the transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law of the State of New York.        (c)    Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any U.S. federal or New York state court sitting in New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Documents, the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims                                            139





 






in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such New York State or, to the extent permitted by 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 any other Loan Document shall affect any right that the Administrative Agent, the Issuing  Bank  or  any  Lender  may  otherwise  have  to  bring  any  action  or  proceeding  relating  to  this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.        (d)    Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph   (c)  of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.        (e)    Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01 . Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.         SECTION 9.10. WAIVER   OF  JURY  TRIAL . EACH PARTY HERETO HEREBY 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,  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 OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER  PARTY 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  BY,  AMONG  OTHER  THINGS,  THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.         SECTION 9.11. Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.        SECTION 9.12. Confidentiality . Each of the Administrative Agent, the Issuing Banks and the Lenders  agrees  to  maintain  the  confidentiality  of  the  Information  (as  defined  below),  except  that Information  may  be  disclosed  (a) to  its  and  its  Affiliates’  directors,  officers,  employees  and  agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep  such  Information  confidential),  (b) to  the  extent  requested  by  any  Governmental  Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by any Requirement of Law or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under  this  Agreement  or  any  other  Loan  Document  or any  suit,  action  or  proceeding  relating  to  this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (1) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under                                            140





 






this Agreement (it being understood that the DQ List may be disclosed to any assignee or Participant, or prospective  assignee  or  Participant,  in  reliance  on  this  clause   (f) )  or  (2) any  actual  or  prospective counterparty  (or  its  advisors)  to  any  swap  or  derivative  transaction  relating  to  any  Borrower  and  its obligations, (g) on a confidential basis to (1) any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring  of  CUSIP  numbers with respect to the credit facilities provided for herein, (h) with the consent of the Company or (i) to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or (2) becomes available to the Administrative Agent, the Issuing Banks or any Lender on a nonconfidential basis from a source other than the Company. For the purposes of this Section, “Information ” means all information received from  the  Company  relating  to  the  Company  or  its  business,  whether  or  not  identified  at  the  time  of delivery as confidential, other than (x) any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Company, (y) any such information that is independently developed, discovered or arrived at by the Administrative Agent, any Issuing Bank or any Lender and (z) information pertaining to this Agreement routinely provided by arrangers  to  data  service  providers,  including  league  table  providers,  that  serve  the  lending  industry; provided   that,  in  the  case  of  information  received  from  the  Company  after  the  date  hereof,  such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.         EACH  LENDER  ACKNOWLEDGES  THAT  INFORMATION  AS  DEFINED  IN  THE IMMEDIATELY  PRECEDING  PARAGRAPH  FURNISHED  TO  IT  PURSUANT  TO  THIS AGREEMENT  MAY  INCLUDE  MNPI  CONCERNING  THE  COMPANY  AND  ITS  RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MNPI AND THAT IT WILL HANDLE SUCH  MNPI  IN  ACCORDANCE  WITH  THOSE  PROCEDURES  AND  APPLICABLE  LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.         ALL  INFORMATION,  INCLUDING  REQUESTS  FOR  WAIVERS  AND  AMENDMENTS, FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE  COURSE  OF  ADMINISTERING,  THIS  AGREEMENT  WILL  BE  SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MNPI ABOUT THE COMPANY, THE OTHER LOAN PARTIES     AND      THEIR     RELATED      PARTIES      OR     THEIR     RESPECTIVE SECURITIES. ACCORDINGLY,  EACH  LENDER  REPRESENTS  TO       THE  COMPANY  AND  THE ADMINISTRATIVE  AGENT  THAT  IT  HAS  IDENTIFIED  IN  ITS            ADMINISTRATIVE QUESTIONNAIRE  A  CREDIT  CONTACT  WHO  MAY  RECEIVE  INFORMATION  THAT  MAY CONTAIN MNPI IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.         SECTION 9.13. USA   PATRIOT   Act .  Each  Lender  that  is  subject  to  the  requirements  of  the Patriot Act hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required  to  obtain,  verify  and  record  information  that  identifies  such  Loan  Party,  which  information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act.        SECTION 9.14. Several  Obligations;  Nonreliance;  Violation  of  Law . The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. Each Lender hereby represents that it is not relying on or looking to any margin stock (as                                            141





 






defined in Regulation U of the Board) for the repayment of the Borrowings provided for herein. Anything contained in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor any Lender shall be obligated to extend credit to the Borrowers in violation of any Requirement of Law.         SECTION 9.15. Disclosure .  Each  Loan  Party,  each  Lender  and  the  Issuing  Bank  hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties and their respective Affiliates.        SECTION 9.16. Appointment  for  Perfection . Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and,  promptly  upon  the  Administrative  Agent’s  request  therefor  shall  deliver  such  Collateral  to  the Administrative  Agent  or  otherwise  deal  with  such  Collateral  in  accordance  with  the  Administrative Agent’s instructions.         SECTION 9.17. Interest  Rate  Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges ”), shall exceed the maximum lawful rate (the “Maximum  Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and  the  interest  and  Charges  payable  to  such  Lender  in  respect  of  other  Loans  or  periods  shall  be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the NYFRB Rate to the date of repayment, shall have been received by such Lender.         SECTION 9.18. Release of Loan Guarantors .         (a)   A Loan Guarantor shall automatically be released from its obligations under the Loan Guaranty upon the consummation of any transaction permitted by this Agreement as a result of which such  Loan  Guarantor  ceases  to  be a Subsidiary; provided   that,  if  so  required  by  this  Agreement,  the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided  otherwise.  In  connection  with  any  termination  or  release  pursuant  to  this  Section,  the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.        (b)    Further, the Administrative Agent may (and is hereby  irrevocably  authorized  by  each Lender to), upon the request of the Company, release any Loan Guarantor from its obligations under the Loan Guaranty if (i) such Loan Guarantor is no longer a Material Subsidiary or is otherwise not required pursuant to the terms of this Agreement to provide a Loan Guaranty or (ii) such release is approved, authorized or ratified by the requisite Lenders pursuant to Section 9.02 .         (c)   At such time as (i) the principal and interest on the Loans, the fees, expenses and other amounts  payable  under  the  Loan  Documents  and  the  other  Secured  Obligations  (other  than  Banking Services Obligations, Swap Agreement Obligations and Unliquidated Obligations, in each case, not then                                            142





 






due and payable) shall have been paid in full in cash, (ii) the Commitments shall have been terminated, and (iii) no Letters of Credit shall be outstanding (or any outstanding Letters of Credit shall have been cash collateralized or backstopped pursuant to arrangements reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank) (the conditions set forth in the preceding clauses (i) , (ii)  and (iii) , collectively,  the  “Final   Release   Conditions ”), the Loan Guaranty and all obligations (other than  those expressly  stated  to  survive  such  termination)  of  each  Loan  Guarantor  thereunder  shall  automatically terminate, all without delivery of any instrument or performance of any act by any Person.         SECTION 9.19. Intercreditor   Agreements .  Without  limiting  the  authority  granted  to  the Administrative  Agent  in  Article VIII   hereof,  each  Lender  (and  each  Person  that  becomes a  Lender hereunder pursuant to Section 9.04 ) hereby authorizes and directs the Administrative Agent to enter into any Intercreditor Agreement on behalf of such Lender and agrees that the Administrative Agent may take such actions on its behalf as is contemplated by the terms of such Intercreditor Agreement. In the event of any conflict between the terms of any Intercreditor Agreement and this Agreement, the terms of such Intercreditor Agreement shall govern and control.         SECTION 9.20. Marketing  Consent . The Borrowers hereby authorize JPMCB and its affiliates (collectively, the “JPMCB  Parties ”), at their respective sole expense, but without any prior approval by any Borrower, to include the Borrowers’ names and logos in advertising slicks posted on their internet sites, in pitchbooks or sent in mailings to prospective customers and to give such other publicity to this Agreement as each may from time to time determine in its sole discretion. Notwithstanding the foregoing, JPMCB Parties shall not publish the Borrowers’ names in a newspaper or magazine without obtaining the Borrowers’ prior written approval. The foregoing authorization shall remain in effect unless and until the Borrower Representative notifies JPMCB in writing that such authorization is revoked.         SECTION 9.21. Acknowledgement   and   Consent   to   Bail-In   of   EEA   Financial   Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial  Institution  arising  under  any  Loan  Document  may  be  subject  to  the  Write-Down  and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:        (a)    the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and        (b)    the effects of any Bail-In Action on any such liability, including, if applicable:               (i)    a reduction in full or in part or cancellation of any such liability;               (ii)   a conversion of all, or a portion of, such liability into shares or other instruments        of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may       be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership        will be accepted by it in lieu of any rights with respect to any such liability under this Agreement        or any other Loan Document; or               (iii)  the variation of the terms of such liability in connection with the exercise of the        Write-Down and Conversion Powers of any EEA Resolution Authority.         SECTION 9.22. No Fiduciary Duty, etc.                                             143





 






       (a)   Each  Borrower  acknowledges  and  agrees,  and  acknowledges  its  Subsidiaries’ understanding, that no Credit Party will have any obligations except those obligations expressly set forth herein and in the other Loan Documents and each Credit Party is acting solely in the capacity of an arm’s length  contractual  counterparty  to  each  Borrower  with  respect  to  the  Loan  Documents  and  the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, any Borrower or any other person. Each Borrower agrees that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement  and  the  transactions  contemplated  hereby.  Additionally,  each  Borrower  acknowledges  and agrees  that  no  Credit  Party  is  advising  any  Borrower  as  to  any  legal,  tax,  investment,  accounting, regulatory or any other matters in any jurisdiction. Each Borrower shall consult with its own advisors concerning  such  matters  and  shall  be  responsible  for  making  its  own  independent  investigation  and appraisal of the transactions contemplated herein or in the other Loan Documents, and the Credit Parties shall have no responsibility or liability to any Borrower with respect thereto.         (b)   Each Borrower further acknowledges and agrees, and  acknowledges  its  Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, any Borrower and other companies with which any Borrower may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.         (c)   In addition, each Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which a Borrower may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party will use confidential information obtained from any Borrower by virtue of the transactions contemplated by the Loan Documents or its other relationships with such Borrower in connection with the performance by  such  Credit  Party  of  services  for  other  companies,  and  no  Credit  Party  will  furnish  any  such information  to  other  companies.  Each  Borrower  also acknowledges  that  no  Credit  Party  has  any obligation to use in connection with the transactions contemplated by the Loan Documents, or to furnish to any Borrower, confidential information obtained from other companies.         SECTION 9.23. Acknowledgement Regarding Any Supported QFCs . To the extent that the Loan Documents  provide  support,  through  a  guarantee  or  otherwise,  for  Swap  Agreements  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 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):        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                                            144





 






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.                                        ARTICLE X                                       Loan Guaranty         SECTION 10.01.Guaranty . Each Loan Guarantor (other than those that have delivered a separate Guaranty) hereby agrees that it is jointly and severally liable for, and, as a primary obligor and not merely as  surety,  absolutely,  unconditionally  and  irrevocably  guarantees  to  the  Secured  Parties,  the  prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all costs and expenses, including, without limitation, all court costs and attorneys’ and paralegals’ fees and expenses paid or incurred by the Administrative Agent, the Issuing Bank and the Lenders in endeavoring to collect all or any part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any Loan Guarantor or any other guarantor of all or any part  of  the  Secured  Obligations  (such  costs  and  expenses,  together  with  the  Secured  Obligations, collectively  the  “Guaranteed   Obligations ”;  provided ,  however ,  that  the  definition  of  “Guaranteed Obligations ” shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent  from  it,  and  that  it  remains  bound  upon  its guarantee  notwithstanding  any  such  extension  or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations.         SECTION 10.02.Guaranty  of  Payment . This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to require the Administrative Agent, the Issuing Bank or any Lender to sue any Borrower, any Loan Guarantor, any other guarantor of, or any other Person obligated for, all or any part of the Guaranteed Obligations (each, an “Obligated  Party ”), or otherwise to enforce its payment against any collateral securing all or any part of the Guaranteed Obligations.         SECTION 10.03.No Discharge or Diminishment of Loan Guaranty .         (a)   Except  as  otherwise  provided  for  herein,  the  obligations  of  each  Loan  Guarantor hereunder  are  unconditional  and  absolute  and  not  subject  to  any  reduction,  limitation,  impairment  or termination  for  any  reason  (other  than  the  indefeasible  payment  in  full  in  cash  of  the  Guaranteed Obligations),  including:  (i)  any  claim  of  waiver,  release,  extension,  renewal,  settlement,  surrender, alteration or compromise of any of the Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of any Borrower or any other Obligated Party liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligated Party or their assets or any resulting release or discharge of                                            145





 






any obligation of any Obligated Party; or (iv) the existence of any claim, setoff or other rights which any Loan Guarantor may have at any time against any Obligated Party, the Administrative Agent, the Issuing Bank, any Lender or any other Person, whether in connection herewith or in any unrelated transactions.        (b)    The obligations of each Loan Guarantor hereunder are  not  subject  to  any  defense  or setoff,  counterclaim,  recoupment  or  termination  whatsoever  by  reason  of  the  invalidity,  illegality  or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision of applicable law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.         (c)   Further, the obligations of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to  the  Guaranteed  Obligations;  (iii)  any  release,  non-perfection  or  invalidity  of  any  indirect  or  direct security for the obligations of any Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Obligated Party liable for any of the Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent, the Issuing Bank or any Lender with respect to any collateral securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed  Obligations,  or  any  other  circumstance,  act, omission or delay that might in any manner or to any extent vary the risk of such Loan Guarantor or that would otherwise operate as a discharge of any Loan Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of the Guaranteed Obligations).         SECTION 10.04.Defenses  Waived . To the fullest extent permitted by applicable law, each Loan Guarantor hereby waives any defense based on or arising out of any defense of any Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed Obligations from any cause, or the cessation from any cause of the liability of any Borrower, any Loan Guarantor or any other Obligated Party, other than the indefeasible payment in full in cash of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Loan Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Obligated Party or any other Person. Each Loan Guarantor confirms that it is not a surety under any state law and shall not raise any such law as a defense to its obligations hereunder. The Administrative Agent may, at its election, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise or adjust any part of the Guaranteed Obligations,  make  any  other  accommodation  with  any Obligated  Party  or  exercise  any  other  right  or remedy available to it against any Obligated Party, without affecting or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty except to the extent the Guaranteed Obligations have been fully and indefeasibly paid in cash. To the fullest extent permitted by applicable law, each Loan Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Loan Guarantor against any Obligated Party or any security.        SECTION 10.05.Rights  of  Subrogation . No Loan Guarantor will assert any right, claim or cause of action, including, without limitation, a claim of subrogation, contribution or indemnification, that it has against any Obligated Party or any collateral, until the Loan Parties and the Loan Guarantors have fully performed all their obligations to the Administrative Agent, the Issuing Bank and the Lenders.                                             146





 






       SECTION 10.06.Reinstatement;  Stay  of  Acceleration . If at any time any payment of any portion of  the  Guaranteed  Obligations  (including  a  payment effected  through  exercise  of  a  right  of  setoff)  is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion), each Loan Guarantor’s obligations under this Loan Guaranty with respect to that payment shall  be  reinstated  at  such  time  as  though  the  payment  had  not  been  made  and  whether  or  not  the Administrative  Agent,  the  Issuing  Bank  and  the  Lenders  are  in  possession  of  this  Loan  Guaranty.  If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless be payable by the Loan Guarantors forthwith on demand by the Administrative Agent.        SECTION 10.07.Information .  Each  Loan  Guarantor  assumes  all  responsibility  for  being  and keeping itself informed of the Borrowers’ financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the  Administrative  Agent,  the  Issuing  Bank  or  any  Lender  shall  have  any  duty  to  advise  any  Loan Guarantor of information known to it regarding those circumstances or risks.         SECTION 10.08.Termination . Each of the Lenders and the Issuing Bank may continue to make loans or extend credit to the Borrowers based on this Loan Guaranty until five (5) days after it receives written notice of termination from any Loan Guarantor. Notwithstanding receipt of any such notice, each Loan Guarantor will continue to be liable to the Lenders for any Guaranteed Obligations created, assumed or committed to prior to the fifth day after receipt of the notice, and all subsequent renewals, extensions, modifications and amendments with respect to, or substitutions for, all or any part of such Guaranteed Obligations. Nothing in this Section 10.08  shall be deemed to constitute a waiver of, or eliminate, limit, reduce or otherwise impair any rights or remedies the Administrative Agent or any Lender may have in respect of, any Default or Event of Default that shall exist under Article VII  hereof as a result of any such notice of termination.        SECTION 10.09.Taxes . Any obligation of any Borrower under Section 2.17 of this Agreement to pay any additional amounts to, or indemnify, any Lender, Issuing Bank, or the Administrative Agent for any Taxes that are required to be withheld or deducted from payments made to any Lender, Issuing Bank, or the Administrative Agent or to pay for, or indemnify any Lender, Issuing Bank, or the Administrative Agent  for,  any  Other  Taxes,  shall  apply  mutatis  mutandis  (and  without  duplication)  to  each  Loan Guarantor with respect to this Loan Guaranty and payments made with respect to Guaranteed Obligations.        SECTION 10.10.Maximum    Liability .  Notwithstanding  any  other  provision  of  this  Loan Guaranty, the amount guaranteed by each Loan Guarantor hereunder shall be limited to the extent, if any, required  so  that  its  obligations  hereunder  shall  not  be  subject  to  avoidance  under  Section 548  of  the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act, Uniform Voidable Transactions Act or similar statute or common law. In determining the limitations, if any, on the amount of any Loan Guarantor’s  obligations  hereunder  pursuant  to  the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Loan Guarantor may have under this Loan Guaranty, any other agreement or applicable law shall be taken into account.         SECTION 10.11.Contribution .         (a)   To the extent that any Loan Guarantor shall make a payment under this Loan Guaranty (a “Guarantor   Payment ”)  which,  taking  into  account  all  other  Guarantor  Payments  then  previously  or                                            147





 






concurrently made by any other Loan Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Loan Guarantor if each Loan Guarantor had paid the aggregate Guaranteed Obligations  satisfied  by  such  Guarantor  Payment  in the  same  proportion  as  such  Loan  Guarantor’s “Allocable  Amount ” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Loan Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Guarantor Payment and the Guaranteed Obligations (other than Unliquidated Obligations that have not yet arisen), and all Commitments and Letters of Credit have terminated or expired or, in the case of all Letters of Credit, are fully collateralized on terms reasonably acceptable to the Administrative Agent and the  Issuing  Bank,  and  this  Agreement,  the  Swap  Agreement  Obligations  and  the  Banking  Services Obligations  have  terminated,  such  Loan  Guarantor  shall  be  entitled  to  receive  contribution  and indemnification payments from, and be reimbursed by, each other Loan Guarantor for the amount of such excess,  pro  rata  based  upon  their  respective  Allocable  Amounts  in  effect  immediately  prior  to  such Guarantor Payment.        (b)    As of any date of determination, the “Allocable  Amount ” of any Loan Guarantor shall be equal  to  the  excess  of  the  fair  saleable  value  of  the  property  of  such  Loan  Guarantor  over  the  total liabilities of such Loan Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Loan Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made  by  other  Loan  Guarantors  as  of  such  date  in  a manner  to  maximize  the  amount  of  such contributions.         (c)   This Section 10.11  is intended only to define the relative rights of the Loan Guarantors, and  nothing  set  forth  in  this  Section 10.11   is intended to or shall impair the obligations of the  Loan Guarantors,  jointly  and  severally,  to  pay  any  amounts  as  and  when  the  same  shall  become  due  and payable in accordance with the terms of this Loan Guaranty.        (d)    The  parties  hereto  acknowledge  that  the  rights  of contribution  and  indemnification hereunder shall constitute assets of the Loan Guarantor or Loan Guarantors to which such contribution and indemnification is owing.        (e)    The rights of the indemnifying Loan Guarantors against other Loan Guarantors under this Section 10.11  shall be exercisable upon satisfaction of the Final Release Conditions.         SECTION 10.12.Liability   Cumulative .  The  liability  of  each  Loan  Party  as  a  Loan  Guarantor under this Article X  is in addition to and shall be cumulative with all liabilities of each Loan Party to the Administrative  Agent,  the  Issuing  Bank  and  the  Lenders  under  this  Agreement  and  the  other  Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other Loan  Parties,  without  any  limitation  as  to  amount, unless  the  instrument  or  agreement  evidencing  or creating such other liability specifically provides to the contrary.        SECTION 10.13.Keepwell .  Each  Qualified  ECP  Guarantor  hereby  jointly  and  severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee in respect of a Swap Obligation (provided , however , that each Qualified ECP Guarantor shall only be liable under this Section 10.13  for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.13  or otherwise under this Loan Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). Except  as  otherwise  provided  herein,  the  obligations  of  each  Qualified  ECP  Guarantor  under  this Section 10.13  shall remain in full force and effect until satisfaction of the Final Release Conditions. Each                                            148





 






Qualified  ECP  Guarantor  intends  that  this  Section 10.13   constitute,  and  this  Section 10.13   shall  be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.                                        ARTICLE XI                                 The Borrower Representative         SECTION 11.01.Appointment;   Nature   of   Relationship .  The  Company  is  hereby  appointed  by each  of  the  Borrowers  as  its  contractual  representative  (herein  referred  to  as  the  “Borrower Representative ”) hereunder and under each other Loan Document, and each of the Borrowers irrevocably authorizes the Borrower Representative to act as the contractual representative of such Borrower with the rights  and  duties  expressly  set  forth  herein  and  in  the  other  Loan  Documents.  The  Borrower Representative agrees to act as such contractual representative upon the express conditions contained in this Article XI . Additionally, the Borrowers hereby appoint the Borrower Representative as their agent to receive  all  of  the  proceeds  of  the  Loans  in  the  Funding  Account(s),  at  which  time  the  Borrower Representative shall promptly disburse such Loans to the appropriate Borrower(s); provided  that, in the case of a Revolving Loan, such amount shall not cause the Borrowers to violate the Revolving Exposure Limitations. The Administrative Agent and the Lenders, and their respective officers, directors, agents or employees, shall not be liable to the Borrower Representative or any Borrower for any action taken or omitted to be taken by the Borrower Representative or the Borrowers pursuant to this Section 11.01 .        SECTION 11.02.Powers . The Borrower Representative shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Borrower Representative by the terms of each  thereof,  together  with  such  powers  as  are  reasonably  incidental  thereto.  The  Borrower Representative shall have no implied duties to the Borrowers, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Borrower Representative.         SECTION 11.03.Employment  of  Agents . The Borrower Representative may execute any of its duties  as  the  Borrower  Representative  hereunder  and  under  any  other  Loan  Document  by  or  through authorized officers.         SECTION 11.04.Notices . Each Borrower shall immediately notify the Borrower Representative of the occurrence of any Default or Event of Default hereunder referring to this Agreement describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Borrower Representative receives such a notice, the Borrower Representative shall give prompt notice thereof to the Administrative Agent and the Lenders. Any notice provided to the Borrower Representative hereunder shall constitute notice to each Borrower on the date received by the Borrower Representative.         SECTION 11.05.Successor   Borrower   Representative .  Upon  the  prior  written  consent  of  the Administrative  Agent,  the  Borrower  Representative  may  resign  at  any  time,  such  resignation  to  be effective upon the appointment of a successor Borrower Representative. The Administrative Agent shall give prompt written notice of such resignation to the Lenders.        SECTION 11.06.Execution   of   Loan   Documents;   Borrowing   Base   Certificate .  The  Borrowers hereby empower and authorize the Borrower Representative, on behalf of the Borrowers, to execute and deliver to the Administrative Agent and the Lenders  the  Loan  Documents  and  all  related  agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes of the Loan  Documents,  including,  without  limitation,  the Aggregate  Borrowing  Base  Certificate  and  the Borrowing Base Certificate of each Borrower and the Compliance Certificates. Each Borrower agrees that                                            149





 






any action taken by the Borrower Representative or the Borrowers in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the Borrower Representative of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers.         SECTION 11.07.Reporting .  Each  Borrower  hereby  agrees  that  such  Borrower  shall  furnish promptly after each fiscal month to the Borrower Representative a copy of its Borrowing Base Certificate and any other certificate or report required hereunder or requested by the Borrower Representative on which the Borrower Representative shall rely to prepare the Aggregate Borrowing Base Certificate and the Borrowing Base Certificate of each Borrower and Compliance Certificate required pursuant to the provisions of this Agreement.                                   [Signature Pages Follow ]                                             150





 






       IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.                                          WINNEBAGO INDUSTRIES, INC., as Borrower                                          By:                                             Name:                                            Title:                                          WINNEBAGO OF INDIANA, LLC, as Borrower                                          By:                                             Name:                                            Title:                                          GRAND DESIGN RV, LLC, as Borrower                                          By:                                             Name:                                            Title:                                          NEWMAR CORPORATION, as Borrower                                          By:                                             Name:                                            Title:                                          OCTAVIUS CORPORATION, as Loan Guarantor                                          By:                                             Name:                                            Title:           [Signature Page to Amended and Restated Credit Agreement – Winnebago Industries, Inc.]





 






                                JPMORGAN CHASE BANK, N.A., individually as                                     a  Lender, as Swingline Lender, as an Issuing                                     Bank and as Administrative Agent                                  By:                                     Name:                                    Title:   [Signature Page to Amended and Restated Credit Agreement – Winnebago Industries, Inc.]





 






                            COMMITMENT SCHEDULE                  LENDER                                COMMITMENTS  JPMORGAN CHASE BANK, N.A.                                              $92,500,000  BMO HARRIS BANK N.A.                                                   $60,000,000  GOLDMAN SACHS BANK USA                                                 $40,000,000  AGGREGATE COMMITMENTS                                                 $192,500,000





 






                                                                         EXHIBIT A                            ASSIGNMENT AND ASSUMPTION         This  Assignment  and  Assumption  (the  “Assignment   and   Assumption ”)  is  dated  as  of  the Effective Date set forth below and is entered into by  and  between  [ Insert  name  of  Assignor ]  (the “Assignor ”) and [ Insert name of Assignee ] (the “Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard  Terms  and  Conditions  set  forth  in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.         For  an  agreed  consideration,  the  Assignor  hereby  irrevocably  sells  and  assigns  to  the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and  in  accordance  with  the  Standard  Terms  and  Conditions  and  the  Credit  Agreement,  as  of  the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights  and  obligations  in  its  capacity  as  a  Lender under  the  Credit  Agreement  and  any  other documents  or  instruments  delivered  pursuant  thereto  to  the  extent  related  to  the  amount  and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under  the  respective  facilities  identified  below  (including  any  letters  of  credit,  guarantees,  and swingline  loans  included  in  such  facilities)  and  (ii) to  the  extent  permitted  to  be  assigned  under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit  Agreement,  any  other  documents  or  instruments  delivered  pursuant  thereto  or  the  loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract  claims,  tort  claims,  malpractice  claims,  statutory  claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)  above (the rights and  obligations  sold  and  assigned  pursuant  to  clauses (i)  and  (ii)  above  being  referred  to  herein collectively as the “Assigned  Interest ”). Such sale and assignment is without recourse to the Assignor and,  except  as  expressly  provided  in  this  Assignment  and  Assumption,  without  representation  or warranty by the Assignor.   1.   Assignor:              _____________________________   2.   Assignee:              _____________________________                               [and is an Affiliate/Approved Fund of [identify Lender] 1]   3.   Borrowers:             Winnebago Industries, Inc., Winnebago of Indiana, LLC  and ,                              Grand Design RV, LLC  and Newmar Corporation   4.   Administrative Agent:  JPMorgan Chase Bank, N.A., as the administrative agent under                              the Credit Agreement   5.   Credit Agreement:      The Amended and Restated Credit Agreement dated as of                              October 22, 2019 among Winnebago Industries, Inc., Winnebago                              of Indiana, LLC  and , Grand Design RV, LLC  and Newmar                              Corporation , as Borrowers, the other Loan Parties from time to                              time parties thereto, the Lenders parties thereto, and JPMorgan                              Chase Bank, N.A., as Administrative Agent   6.   Assigned Interest:   1 Select as applicable.                                       Exhibit A-1





 






  Aggregate Amount of       Amount of                  Percentage Assigned  Commitment/Loans for      Commitment/                        of       all Lenders         Loans Assigned               Commitment/Loans 2  $                     $                    %  $                     $                    %  $                     $                    %         Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]         The  Assignee  agrees  to  deliver  to  the  Administrative  Agent  a  completed  Administrative Questionnaire  in  which  the  Assignee  designates  one or  more  Credit  Contacts  to  whom  all syndicate-level information (which may contain material non-public information about the Company, the other Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.         The terms set forth in this Assignment and Assumption are hereby agreed to:                                          ASSIGNOR                                          [NAME OF ASSIGNOR]                                          By:                                             Title:                                          ASSIGNEE                                          [NAME OF ASSIGNEE]                                          By:                                             Title:  Consented to and Accepted:  JPMORGAN CHASE BANK, N.A., as Administrative Agent, an Issuing Bank and Swingline Lender  By:      Title:   2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.                                       Exhibit A-2





 






[__________], as an Issuing Bank  By:      Title:  [Consented to:] 3  WINNEBAGO INDUSTRIES, INC.  By:      Title:   3  To  be  added  only  if  the  consent  of  the  Borrower  Representative  is  required  by  the  terms  of  the  Credit Agreement.                                       Exhibit A-3





 






                                                                           ANNEX I                       STANDARD TERMS AND CONDITIONS FOR                           ASSIGNMENT AND ASSUMPTION         1.    Representations and Warranties.         1.1.  Assignor .  The  Assignor  (a) represents  and  warrants  that  (i) it  is  the  legal  and beneficial  owner  of  the  Assigned  Interest,  (ii) the  Assigned  Interest  is  free  and  clear  of  any  lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary,  to  execute  and  deliver  this  Assignment  and  Assumption  and  to  consummate  the transactions  contemplated  hereby;  and  (b) assumes  no  responsibility  with  respect  to  (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value  of  the  Loan  Documents  or  any  collateral  thereunder,  (iii) the  financial  condition  of  the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, (iv) any requirements under applicable law for the Assignee to become a lender under the Credit  Agreement  or  to  charge  interest  at  the  rate set  forth  therein  from  time  to  time,  or  (v) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.         1.2.  Assignee .  The  Assignee  (a) represents  and  warrants  that  (i) it  has  full  power  and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,  (ii) it  satisfies  the  requirements,  if  any,  specified  in  the  Credit  Agreement  and  under applicable law that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies  of  the  most  recent  financial  statements  delivered  pursuant  to  Section 5.01   thereof,  as applicable, and such other documents and information as it has deemed appropriate to make its own credit  analysis  and  decision  to  enter  into  this  Assignment  and  Assumption  and  to  purchase  the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Lead Arranger or any other Lender or any of their respective Related Parties, and (v) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Lead Arranger, the Syndication Agent, the Assignor or any other Lender or any of their respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.                                        Exhibit A-4





 






       2.    Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.         3.    General   Provisions .  This  Assignment  and  Assumption  shall  be  binding  upon,  and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Acceptance  and  adoption  of  the  terms  of  this  Assignment  and  Assumption  by  the Assignee  and  the  Assignor  by  Electronic  Signature  or  delivery  of  an  executed  counterpart  of  a signature page of this Assignment and Assumption by any Approved Electronic Platform shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.                                        Exhibit A-5





 






               EXHIBIT B-1  FORM OF BORROWING BASE CERTIFICATE                  [Attached]                   Exhibit B-1





 






                     EXHIBIT B-2  FORM OF AGGREGATE BORROWING BASE CERTIFICATE                        [Attached]                         Exhibit B-2





 






                                     EXHIBIT C                              COMPLIANCE CERTIFICATE  To:    The Lenders parties to the         Credit Agreement Described Below         This  Compliance  Certificate  is  furnished  pursuant  to  that  certain  Amended  and  Restated Credit Agreement, dated as of October 22, 2019 (as amended, restated, supplemented or otherwise modified  from  time  to  time,  the  “Agreement ”), among Winnebago Industries, Inc. (the “Borrower Representative ”),  Winnebago  of  Indiana,  LLC   and ,  Grand  Design  RV,  LLC   and   Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties from time to time party thereto, the  Lenders  from  time  to  time  party  thereto  and  JPMorgan  Chase  Bank,  N.A.,  as  Administrative Agent. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed thereto in the Agreement.         THE UNDERSIGNED HEREBY CERTIFIES, ON ITS BEHALF AND ON BEHALF OF THE  BORROWERS,  SOLELY  IN  SUCH  PERSON’S  CAPACITY  AS     AN  OFFICER  OF  THE COMPANY AND NOT IN AN INDIVIDUAL CAPACITY, THAT:         1.    I am the duly elected [__________] of the Borrower Representative;         2.    I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Company and its  Subsidiaries  during  the  accounting  period  covered  by  the  attached  financial  statements  [for quarterly  or  monthly  financial  statements  add:  and such  financial  statements  present  fairly  in  all material  respects  the  financial  condition  and  results  of  operations  of  the  Borrowers  and  their consolidated  Subsidiaries  on  a  consolidated  basis  in  accordance  with  GAAP  consistently  applied, subject to normal year-end audit adjustments and the absence of footnotes];         3.    The examinations described in paragraph 2 did not disclose, except as set forth below, and I have no knowledge of (i) the existence of any condition or event which constitutes a Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate or (ii) any change in GAAP or in the application thereof that has occurred since the date of the audited financial statements referred to in Section 3.04 of the Agreement;        4.     I hereby certify that no Loan Party has changed (i) its name, (ii) its chief executive office, (iii) principal place of business, (iv) the type of entity it is or (v) its state of incorporation or organization without having given the Administrative Agent the notice required by Section 4.15 of the Security Agreement;        5.     Schedule I attached hereto sets forth financial data and computations evidencing the Borrowers’ compliance with certain covenants of the Agreement, all of which data and computations are true, complete and correct;        6.     Schedule II hereto sets forth the computations necessary to determine the Applicable Rate commencing on the date that is five (5) Business Days after the date this certificate is delivered; and  [for annual or quarterly financial statements add:         7.    Schedule III hereto sets forth the computations necessary  to determine the average daily Total Commitment Utilization for the period referenced in paragraph 2 above.]                                        Exhibit C-1





 






       Described below are the exceptions, if any, to paragraph  3  by listing, in detail, the (i) nature of the condition or event, the period during which it has existed and the action which the Borrowers have taken, are taking, or propose to take with respect  to  each  such condition or event or (i) the change in GAAP or the application thereof and the effect of such change on the attached financial statements:          The  foregoing  certifications,  together  with  the  computations  set  forth  in  Schedule I  and Schedule II hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this ___ day of __________, 20__.                                           WINNEBAGO INDUSTRIES, INC., as                                         Borrower Representative                                           By:                                             Name:                                             Title:                                         Exhibit C-2





 






                                     EXHIBIT D                             LIST OF CLOSING DOCUMENTS                            WINNEBAGO INDUSTRIES, INC.                           WINNEBAGO OF INDIANA, LLC                              GRAND DESIGN RV, LLC                              NEWMAR CORPORATION                                ABL CREDIT FACILITY                                     October 22, 2019                            LIST OF CLOSING DOCUMENTS     4                          A.    LOAN DOCUMENTS        1.     Amended and Restated Credit Agreement (the “Credit Agreement” ) by and among Winnebago Industries, Inc., an Indiana corporation (the “Company” ), Winnebago of Indiana, LLC, and  Grand Design RV, LLC  and  Newmar  Corporation , as Borrowers (the “Borrowers” ), the other Loan Parties from time to time parties thereto, the institutions from time to time parties thereto as Lenders  (the “Lenders” )  and  JPMorgan  Chase  Bank,  N.A.  ( “JPMorgan” ),  in  its  capacity  as Administrative  Agent  (the “Administrative  Agent” ),  evidencing  an  asset-based  revolving  credit facility to the Borrowers from the Lenders in an initial aggregate principal amount of $192,500,000.                                      SCHEDULES        Commitment Schedule       Schedule 3.15  –     Capitalization and Subsidiaries       Schedule 3.18  –    Insurance       Schedule 6.01  –    Existing Indebtedness       Schedule 6.02  –    Existing Liens       Schedule 6.04  –    Existing Investments       Schedule 6.05  –    Dispositions       Schedule 6.08  –     Transactions with Affiliates       Schedule 6.11  –    Restrictive Agreements                                       EXHIBITS  Exhibit A   –    Form of Assignment and Assumption Exhibit B   –    Form of Borrowing Base Certificate Exhibit C   –    Form of Compliance Certificate Exhibit D   –    List of Closing Documents Exhibit E   –    Form of Joinder Agreement Exhibit F-1 –    Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships) Exhibit F-2 –    Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships) Exhibit F-3 –    Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships) Exhibit F-4 –    Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships) Exhibit G-1 –    Form of Borrowing Request Exhibit G-2 –    Form of Interest Election Request   4 Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the above-defined Credit Agreement. Items appearing in bold and italics shall be prepared and/or provided by the Company and/or Company’s counsel.                                       Exhibit D-1





 






       2.    Notes executed by the Borrowers in favor of each of the Lenders, if any, which has requested a note pursuant to Section 2.10(e) of the Credit Agreement.         3.    Amended and Restated Pledge and Security Agreement executed by the Loan Parties in  favor  of  the  Administrative  Agent,  together  with  pledged  instruments  and  allonges,  stock certificates,  stock  powers  executed  in  blank,  pledge  instructions  and  acknowledgments,  as appropriate.        4.     Confirmatory Grant of Security Interest in United States Patents made by certain of the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties.           Schedule A  --     Registered Patents; Patent Applications; Other Patents        5.     Confirmatory Grant of Security Interest in United States Trademarks made by certain of the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties.          Schedule A   --     Registered  Trademarks;  Trademark  and  Service  Mark  Applications;                             Other Trademarks        6.     Certificates of Insurance listing the Administrative Agent as (x) lender loss payee for the property and casualty insurance policies of the initial Loan Parties, together with long-form lender loss  payable  endorsements,  as  appropriate,  and  (y) additional  insured  with  respect  to  the  liability insurance of the Loan Parties, together with additional insured endorsements.                          B.     UCC DOCUMENTS        7.     UCC, tax lien and name variation search reports naming each Loan Party from the appropriate offices in relevant jurisdictions.        8.     UCC financing statements naming each Loan Party as debtor and the Administrative Agent as secured party as filed with the appropriate offices in applicable jurisdictions.                      C.     CORPORATE DOCUMENTS        9.     Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous  governmental  entity)  of  the  jurisdiction of  its  organization,  since  the  date  of  the certification thereof by such governmental entity, (ii) the By-Laws or other applicable organizational document,  as  attached  thereto,  of  such  Loan  Party  as  in  effect  on  the  date  of  such  certification, (iii) resolutions of the Board of Directors or other governing body of such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party and (iv) the names and  true  signatures  of  the  incumbent  officers  of  each  Loan  Party  authorized  to  sign  the  Loan Documents  to  which  it  is  a  party,  and  (in  the  case of  each  Borrower)  authorized  to  request  a Borrowing or the issuance of a Letter of Credit under the Credit Agreement.        10.    Good Standing Certificate (or analogous documentation if applicable) for each Loan Party  from  the  Secretary  of  State  (or  analogous  governmental  entity)  of  the  jurisdiction  of  its organization, to the extent generally available in such jurisdiction.                               D.    OPINIONS                                        Exhibit D-2





 






       11.   Favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Faegre Baker Daniels, counsel for the Loan Parties, covering such matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinion.           E.     CLOSING CERTIFICATES AND MISCELLANEOUS         12.   A Certificate signed by the President, a Vice President or a Financial Officer of the Company certifying that: (i) no Default has occurred and is continuing, (ii) setting forth reasonably detailed calculations demonstrating pro forma compliance with Section 6.12 of the Credit Agreement, (iii) stating that the representations and warranties contained in Article III of the Credit Agreement are true and correct in all material respects (provided that any representation or warranty that is qualified by materiality, Material Adverse Effect or similar language is true and correct in all respects) on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (provided  that any representation or warranty that is qualified by materiality, Material Adverse Effect or similar language are  true  and  correct  in  all  respects)  as  of  such  earlier date and (iv) stating that the Borrower is in compliance with the Revolving Exposure Limitations.        13.    A Solvency Certificate of the chief financial officer of the Company substantially in the form of Annex  I  hereto, certifying that the Company and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.        14.    An Aggregate Borrowing Base Certificate and a Borrowing Base Certificate for each Borrower, in each case, prepared as of the last day of the most recent month ended at least twenty (20) calendar days prior to the Effective Date.        15.    Funding Account Notice.                                        Exhibit D-3





 






                                                                  Annex I to Exhibit D                           FORM OF SOLVENCY CERTIFICATE                                                                   [__________], 20[__]        This Solvency Certificate is being executed and delivered pursuant to Section 4.01(a)  of the Amended and Restated Credit Agreement (the “Credit  Agreement ”), dated as of October 22, 2019, among Winnebago Industries, Inc. (the “Company ”), the other loan parties party thereto from time to time,  the  lenders  party  thereto  from  time  to  time  and  JPMorgan  Chase  Bank,  N.A.,  as  the administrative agent; the terms defined therein being used herein as therein defined.        I, [__________], the chief financial officer of the Company, solely in such capacity and not in an individual capacity, hereby certify that I am the chief financial officer of the Company and that I am generally familiar with the businesses and assets of the Company and its Subsidiaries (taken as a whole), I have made such other investigations and inquiries as I have deemed appropriate and I am duly authorized to execute this Solvency Certificate on behalf of the Company pursuant to the Credit Agreement.         I further certify, solely in my capacity as chief financial officer of the Company, and not in my  individual  capacity,  as  of  the  date  hereof  and  after  giving  effect  to  the  Transactions  and  the incurrence  of  the  indebtedness  and  obligations  being  incurred  in  connection  with  the  Credit Agreement  and  the  Transactions  on  the  date  hereof, that,  with  respect  to  the  Company  and  its Subsidiaries on a consolidated basis, (a) the sum of the liabilities of the Company and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets of the Company and its Subsidiaries, taken as a whole; (b) the capital of the Company and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Company and its Subsidiaries, taken as a whole, contemplated on the date hereof and (c) the Company and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debt as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the  facts  and  circumstances  existing  at  such  time, represents  the  amount  that  can  reasonably  be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).                          [Remainder of page intentionally left blank]                                        Exhibit D-4





 






       IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.                                           By:__________________________________                                           Name:                                           Title: Chief Financial Officer                                        Exhibit D-5





 






                                     EXHIBIT E                                 JOINDER AGREEMENT         THIS  JOINDER  AGREEMENT  (this  “Agreement ”),  dated  as  of  [__________],  20__,  is entered  into  between  [__________],  a  [__________]  (the  “New   Subsidiary ”)  and  JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the “Administrative  Agent ”) under that certain Amended and Restated Credit Agreement dated as of October 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement ”) among Winnebago Industries,  Inc.,  Winnebago  of  Indiana,  LLC   and ,  Grand  Design  RV,  LLC   and   Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties party thereto, the Lenders party thereto  and  the  Administrative  Agent  for  the  Lenders.  All  capitalized  terms  used  herein  and  not otherwise defined herein shall have the meanings set forth in the Credit Agreement.         The New Subsidiary and the Administrative Agent, for the benefit of the Lenders, hereby agree as follows:         1.    The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a Loan Party under the Credit Agreement and  a “Loan  Guarantor”   for  all  purposes  of  the  Credit  Agreement  and  shall  have  all  of  the obligations  of  a  Loan  Party  and  a  Loan  Guarantor  thereunder  as  if  it  had  executed  the  Credit Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of  the  terms,  provisions  and  conditions  contained  in  the  Credit  Agreement,  including  without limitation (a) all of the representations and warranties of the Loan Parties set forth in Article III of the Credit Agreement, (b) all of the covenants set forth in Articles V and VI of the Credit Agreement and (c) all of the guaranty obligations set forth in Article X of the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary, subject to the limitations set  forth  in  Sections 10.10  and  10.13  of  the  Credit  Agreement,  hereby  guarantees,  jointly  and severally with the other Loan Guarantors, to the Administrative Agent and the Lenders, as provided in Article X  of  the  Credit  Agreement,  the  prompt  payment  and  performance  of  the  Guaranteed Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or  otherwise)  in  accordance  with  the  terms  thereof and  agrees  that  if  any  of  the  Guaranteed Obligations are not paid or performed in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), the New Subsidiary will, jointly and severally together with the other Loan Guarantors, promptly pay and perform the same, without any demand or notice whatsoever,  and  that  in  the  case  of  any  extension  of  time  of  payment  or  renewal  of  any  of  the Guaranteed  Obligations,  the  same  will  be  promptly  paid  in  full  when  due  (whether  at  extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.         2.    If  required,  the  New  Subsidiary  is,  simultaneously  with  the  execution  of  this Agreement,  executing  and  delivering  such  Collateral  Documents  (and  such  other  documents  and instruments) as requested by the Administrative Agent in accordance with the Credit Agreement.         3.    The  address  of  the  New  Subsidiary  for  purposes  of Section 9.01  of  the  Credit Agreement is as follows:                                        Exhibit E-1





 






       4.    The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of the guaranty by the New Subsidiary upon the execution of this Agreement by the New Subsidiary.        5.     This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.        6.     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER  SHALL  BE  GOVERNED  BY  AND  CONSTRUED  AND  INTERPRETED  IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.        IN  WITNESS  WHEREOF,  the  New  Subsidiary  has  caused  this  Agreement  to  be  duly executed by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.                                          [NEW SUBSIDIARY]                                          By:                                          Name:                                          Title:                                           Acknowledged and accepted:                                          JPMORGAN CHASE BANK, N.A., as                                         Administrative Agent                                          By:                                          Name:                                          Title:                                         Exhibit E-2





 






                                                                        EXHIBIT F-1                                       [FORM OF]                          U.S. TAX COMPLIANCE CERTIFICATE      (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)         Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement ”), among Winnebago Industries, Inc., Winnebago of Indiana, LLC  and , Grand Design RV, LLC , and Newmar Corporation  as Borrowers (the “Borrowers ”), the other Loan Parties party  thereto,  the  Lenders  from  time  to  time  party thereto  and  JPMorgan  Chase  Bank,  N.A.,  as administrative agent (in such capacity, the “Administrative Agent ”).         Pursuant to the provisions of Section 2.17  of the Credit Agreement, the undersigned hereby certifies  that  (i) it  is  the  sole  record  and  beneficial  owner  of  the  Loan(s)  (as  well  as  any  Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning  of  Section 881(c)(3)(A)  of  the  Code,  (iii) it  is  not  a  ten  percent  shareholder  of  any Borrower  within  the  meaning  of  Section 871(h)(3)(B)  of  the  Code  and  (iv) it  is  not  a  controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.         The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of  its  non-U.S. Person  status  on  IRS  Form W-8BEN  or  IRS  Form  W-8BEN-E.  By  executing  this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned  shall  promptly  so  inform  the  Borrowers and  the  Administrative  Agent  and  (2) the undersigned shall have at all times furnished the Borrowers  and  the  Administrative  Agent  with  a properly  completed  and  currently  effective  certificate  in  either  the  calendar  year  in  which  each payment is to be made to the undersigned, or in either  of  the  two  calendar  years  preceding  such payments.         Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]   By:     Name:    Title:  Date: __________, 20[__]                                        Exhibit F-1





 






                                                                        EXHIBIT F-2                                       [FORM OF]                          U.S. TAX COMPLIANCE CERTIFICATE     (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)         Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement ”), among Winnebago Industries, Inc., Winnebago of Indiana, LLC  and , Grand Design RV, LLC  and Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties party  thereto,  the  Lenders  from  time  to  time  party thereto  and  JPMorgan  Chase  Bank,  N.A.,  as administrative agent (in such capacity, the “Administrative Agent ”).         Pursuant to the provisions of Section 2.17  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.         The  undersigned  has  furnished  its  participating  Lender  with  a  certificate  of  its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly  so  inform  such  Lender  in  writing,  and  (2) the  undersigned  shall  have  at  all  times furnished  such  Lender  with  a  properly  completed  and  currently  effective  certificate  in  either  the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.         Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]   By:     Name:    Title:  Date: __________, 20[__]                                        Exhibit F-2





 






                                                                        EXHIBIT F-3                                       [FORM OF]                          U.S. TAX COMPLIANCE CERTIFICATE       (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)        Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement ”), among Winnebago Industries, Inc., Winnebago of Indiana, LLC  and , Grand Design RV, LLC  and Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties party  thereto,  the  Lenders  from  time  to  time  party thereto  and  JPMorgan  Chase  Bank,  N.A.,  as administrative agent (in such capacity, the “Administrative Agent ”).         Pursuant to the provisions of Section 2.17  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate,  (ii) its  direct  or  indirect  partners/members  are  the  sole  beneficial  owners  of  such participation,  (iii) with  respect  such  participation,  neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary  course  of  its  trade  or  business  within  the  meaning  of  Section 881(c)(3)(A)  of  the  Code, (iv) none  of  its  direct  or  indirect  partners/members  is  a  ten  percent  shareholder  of  any  Borrower within  the  meaning  of  Section 871(h)(3)(B)  of  the  Code  and  (v) none  of  its  direct  or  indirect partners/members  is  a  controlled  foreign  corporation  related  to  any  Borrower  as  described  in Section 881(c)(3)(C) of the Code.         The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption:  (i) an  IRS  Form W-8BEN  or  IRS  Form  W-8BEN-E  or  (ii) an  IRS  Form W-8IMY accompanied  by  an  IRS  Form W-8BEN  or  IRS  Form  W-8BEN-E  from  each  of  such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished  such  Lender  with  a  properly  completed  and  currently  effective  certificate  in  either  the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.        Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]   By:     Name:    Title:  Date: __________, 20[__]                                        Exhibit F-3





 






                                                                        EXHIBIT F-4                                       [FORM OF]                          U.S. TAX COMPLIANCE CERTIFICATE        (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)         Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement ”), among Winnebago Industries, Inc., Winnebago of Indiana, LLC  and , Grand Design RV, LLC  and Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties party  thereto,  the  Lenders  from  time  to  time  party thereto  and  JPMorgan  Chase  Bank,  N.A.,  as administrative agent (in such capacity, the “Administrative Agent ”).         Pursuant to the provisions of Section 2.17  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are  the  sole  beneficial  owners  of  such  Loan(s)  (as well  as  any  Note(s)  evidencing  such  Loan(s)), (iii) with  respect  to  the  extension  of  credit  pursuant  to  the  Credit  Agreement  or  any  other  Loan Document,  neither  the  undersigned  nor  any  of  its  direct  or  indirect  partners/members  is  a  bank extending  credit  pursuant  to  a  loan  agreement  entered  into  in  the  ordinary  course  of  its  trade  or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members  is  a  ten  percent  shareholder  of  any  Borrower  within  the  meaning  of Section 871(h)(3)(B)  of  the  Code  and  (v) none  of  its  direct  or  indirect  partners/members  is  a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.        The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrowers  with  IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming  the  portfolio  interest  exemption:  (i) an  IRS  Form W-8BEN  or  IRS  Form  W-8BEN-E  or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By  executing  this  certificate,  the  undersigned  agrees  that  (1) if  the  information  provided  on  this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent  with  a  properly  completed  and  currently  effective  certificate  in  either  the  calendar  year  in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.        Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]   By:     Name:    Title:  Date: __________, 20[__]                                        Exhibit F-4





 






                                                                        EXHIBIT G-1                            FORM OF BORROWING REQUEST  JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders referred to below  JPMorgan Chase Bank, N.A. 10 S. Dearborn St. Chicago, Illinois 60603 Attention: John Morrone Facsimile No: (312) 548-1943        Re: Winnebago Industries, Inc.                                                                                [Date]  Ladies and Gentlemen:         Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as the same may be amended, restated, supplemented or otherwise modified from time  to  time,  the  “Credit   Agreement ”),  among  Winnebago  Industries,  Inc.  (the  “Borrower Representative ”),  Winnebago  of  Indiana,  LLC   and ,  Grand  Design  RV,  LLC   and   Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative  Agent ”). Capitalized terms used but not defined herein shall have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement.  The  Borrower  Representative hereby gives you notice pursuant to Section 2.03  of the Credit Agreement that it requests a Borrowing under  the  Credit  Agreement,  and  in  that  connection the  Borrower  Representative  specifies  the following information with respect to such Borrowing requested hereby:         1.    Name of the applicable Borrower: __________         2.    Aggregate principal amount of Borrowing: 5 __________         3.    Date of Borrowing (which shall be a Business Day): __________         4.    Type of Borrowing (ABR or Eurodollar): __________         5.    Interest Period and the last day thereof (if a Eurodollar Borrowing): 6 __________         6.    Location and number of the Borrower’s account or any other account agreed upon by              the Administrative Agent and the Borrower to which proceeds of Borrowing are to be              disbursed: __________                                 [Signature Page Follows]   5 Not less than applicable amounts specified in Section 2.02(c) . 6 Which must comply with the definition of “Interest Period” and end not later than the Maturity Date.                                       Exhibit G-1





 






The undersigned hereby represents and warrants that the conditions to lending specified in Section[s] [4.01  and] 7 4.02  of the Credit Agreement are satisfied as of the date hereof.                                         Very truly yours,                                          WINNEBAGO INDUSTRIES, INC.,                                         as the Borrower Representative                                           By:                                          Name:                                         Title:   7 To be included only for Borrowings on the Effective Date.                                       Exhibit G-1





 






                                                                        EXHIBIT G-2                        FORM OF INTEREST ELECTION REQUEST  JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders referred to below  JPMorgan Chase Bank, N.A. 10 S. Dearborn St. Chicago, Illinois 60603 Attention: John Morrone Facsimile No: (312) 548-1943        Re: Winnebago Industries, Inc.                                                                                [Date]  Ladies and Gentlemen:         Reference  is  hereby  made  to  the  Amended  and  Restated  Credit  Agreement  dated  as  of October 22, 2019 (as the same may be amended, restated, supplemented or otherwise modified from time  to  time,  the  “Credit   Agreement ”),  among  Winnebago  Industries,  Inc.  (the  “Borrower Representative ”),  Winnebago  of  Indiana,  LLC   and ,  Grand  Design  RV,  LLC   and   Newmar Corporation , as Borrowers (the “Borrowers ”), the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative  Agent ”). Capitalized terms used but not defined herein shall have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement.  The  Borrower  Representative hereby  gives  you  notice  pursuant  to  Section 2.08   of  the  Credit  Agreement  that  it  requests  to [convert][continue] an existing Borrowing under the Credit Agreement, and in that connection the Borrower  specifies  the  following  information  with  respect  to  such  [conversion][continuation] requested hereby:         1.    Name of Borrower: __________         2.    List date, Type, Class, principal amount and Interest Period (if applicable) of existing              Borrowing: __________         3.    Aggregate principal amount of resulting Borrowing: __________         4.    Effective date of interest election (which shall be a Business Day): __________         5.    Type of Borrowing (ABR or Eurodollar): __________         6.    Interest Period and the last day thereof (if a Eurodollar Borrowing):8 __________                                 [Signature Page Follows]   8Which must comply with the definition of “Interest Period” and end not later than the Maturity Date.                                       Exhibit G-2





 






   Very truly yours,     WINNEBAGO INDUSTRIES, INC.    as Borrower Representative     By:      Name:    Title:   Exhibit G-3





 






 Annex B         [see attached]                          





 






                                                                                                           UAMENDED AND RESTATED SCHEDULES TO CREDIT AGREEMENT                                 Schedule 3.15 – Capitalizations and Subsidiaries                  Schedule 3.18 – Insurance                                                                                





 






                                                                                         Schedule 3.15                            Capitalizations and Subsidiaries                               UEntity            UOwner(s)    UClass of Equity UType of Entity                                                  Interests      Winnebago of Indiana, LLC Winnebago     Membership      Iowa limited                              Industries, Inc. Interests      liability company                                     Octavius Corporation    Winnebago       Common Stock    Delaware                              Industries, Inc.                corporation                                                                     Grand Design RV, LLC    Octavius        Membership      Indiana limited                              Corporation     Interests       liability company                                                                                  Chris Craft Limited*    Winnebago       Ordinary Shares Jersey Channel                              Industries, Inc. Redeemable Pref. Islands private                                                              company limited                                                              by shares      Chris Craft USA, Inc.*  Chris Craft     Common Stock    Delaware                              Limited                         corporation                                                                     Chris-Craft Corporation* Chris Craft USA, Common Stock  Delaware                              Inc.                            corporation      CC Marine Brand Acquisition, Chris Craft USA, Membership Delaware LLC      LLC*                    Inc.            Interests      CC Property Acquisition, Chris-Craft    Membership      Delaware LLC      LLC*                    Corporation     Interests      Winnebago Industries Holdco Octavius    Membership      Delaware LLC      LLC*                    Corporation     Interests       Newmar Corporation      Octavius        52,719 Common   Indiana                              Corporation     Voting Stock    Corporation                                               2,538,282                                              Common Non-                                             Voting Stock  * This entity is a subsidiary, but not a Loan Party.     





 






                                                                                                                                                                              Schedule 3.18                                                    Insurance         Coverage Type    Policy #         Policy    Carrier        Limits                     Retention                                          Term  1.    Beazley Breach   V26DB3190101     05/19-    Beazley        Legal, Forensic & Public   $10,000; but $5,000        Response                          05/20     Insurance      Relations/Crisis Management : for Legal                                                    Company, Inc.  $1,000,000                                                                                                                                                                                  Policy Agg. Limit: $1,000,000                                                                                                                                                                   Add. Breach Response Limit:                                                                    $1,000,000                                                                                                                                                                                  First Party Loss                                                                              Business Interruption Loss:  each incident                                                                   Resulting from Security Breach: $10,000                                                                   $1,000,000                 each incident                                                                   Resulting from System Failure: $10,000                                                                   $1,000,000                                                                                                                                                                                  Dependent Business Loss:   each incident                                                                   Resulting from Dependent   $10,000                                                                   Security Breach: $1,000,000 each incident                                                                   Resulting from Dependent System $10,000                                                                   Failure: $1,000,000                                                                                                      each incident                                                                   Cyber Extortion Loss: $1,000,000 $10,000                                                                                                                                                                                            each incident                                                                   Data Recovery Loss: $1,000,000 $10,000                                                                                                                                                                                            Each Claim:                                                                    ULiability                 $10,000                                                                       





 






                                                               Coverage Type    Policy #         Policy    Carrier        Limits                     Retention                                          Term                                                                   Data & Network Liability:                                                                     $1,000,000                 each Claim:                                                                                              $10,000                                                                   Regulatory Defense & Penalties:                                                                    $1,000,000                                                                                                               each Claim:                                                                   Payment Card Liabilities & Costs: $10,000                                                                   $1,000,000                                                                                                                                                                                  Media Liability: $1,000,000 each Claim:                                                                                              $10,000                                                                    UeCrime                                                                                       Fraudulent Instruction: $100,000                                                                                               each Claim:                                                                   Funds Transfer Fraud: $250,000 $10,000                                                                                                                                                                 Telephone Fraud: $250,000                                                                                                each loss: $10,000                                                                    UCriminal Reward: U$50,000                                                                                               each loss: $10,000                                                                                                                                                                                            each loss: $10,000  2.    Excess Liability CEX09603159-01   05/19-    Gemini         $10,000,000 each occurrence  Retention: Subject          ST       (1P P)                            05/20     Insurance                                 to Underlying                                                    Company        $10,000,000 aggregate limit Coverage                                                                   (where applicable)         Retention(s)                                                                                                                                      Limits apply in excess of the                                                                   “controlling underlying limits of                                                                   insurance” as indicated in the                                                                   policy. 





 






                                                               Coverage Type    Policy #         Policy    Carrier        Limits                     Retention                                          Term  3.    Director and Officer 8172-5289    05/19-    Federal        Max. Agg. Limit of Liability for Individual Non-       Policy                            05/20     Insurance      D&O: $1,000,000            Indemnified                                                    Company                                   Liability Coverage:                                                                                              None                                                                                                                                                                                             Individual                                                                                              Indemnified                                                                                              Liability Coverage:                                                                                              $50,000                                                                                                                                                                                            Entity Liability                                                                                              Coverage: $50,000                                                                                                                                                                                              4.    General Liability MKLV3PBC00023   05/19-    Markel/        General Liability (other than Commercial                         7                05/20     Evanston       Products/Completed Operations): General Liability:                                                    Insurance      $1,000,000 Per Occ         $10,000 per occ                                                    Company        $2,000,000 Agg Limit                                                                                                     Products/Completed                                                                   Products/Completed Operations Operations                                                                   $1,000,000 Per Occ         $150,000 per occ                                                                    $2,000,000 Agg Limit                                                                                                     All Other:                                                                    Personal and Advertising Injury $10,000 per occc                                                                   Limit: $1,000,000                                                                                                                                      Damage to Premises Rented to                                                                   You Limit: $500,000                                                                                                                                      Medical Expense Limit: Excluded   5.    Property Policy  ERP0239298-01    05/19-    American       Per Occurrence Policy      Deductible                                          05/20     Guarantee and                                                                                 Liability      $150,000,000 Property Damage $100,000 combined                                                    Insurance                                 PD and TE 





 






                                                               Coverage Type    Policy #         Policy    Carrier        Limits                     Retention                                          Term                                                    Company        Sublimit:                  $100,000 Hail &                                                                   $5,000,000 Extra Expense   Wind excl Named                                                                   $5,000,000 Leasehold Interest  Storm                                                                                              $100,000 Water                                                                   $150,000,000 Breakdown of  excluding flood                                                                   Equipment                                                                                                                                                                                   In the Annual Aggregate                                                                       $100,000,000 Earth Movement                                                                                                                                                                                                                                                                                                                                                               $100,000,000 Flood                                                                                                                                                                                                     $100,000 Combined                                                                                              PD & TE                                                                                                                                                                 $100,000,000 Named Storm   $100,000 or                                                                                              $250,000 depending                                                                                              on the flood zone                                                                                                                                                                 $30,000,000 PD and TE combined $100,000 Combined                                                                   – Inventory on Open Lot of PD & TE                                                                   Insured Property                                                                                                                                                                                                                      6.    Umbrella Policy  XS2259861-01     05/19-    Great American $10,000,000 each occurrence  Subject to                                          05/20     E&S Insurance  $10,000,000 agg.           Underlying                                                    Company                                   coverage limits  7.    Auto Policy      Y-840-923J3724-  05/19-    Travelers Corp. Covered Autos Liability:  Comp Ded                          TCT-19           05/20                    $1,000,000 CSL             $2,000                                                                                              Collision Ded                                                                   Auto Medical Payments: $5,000 $2,000 or $2,500 





 






                                                               Coverage Type    Policy #         Policy    Carrier        Limits                     Retention                                          Term                                                                   each insured                                                                                                                                         8.    Excess Garage    795-00-96-71-0000 05/19-   One Beacon     Vehicles on Dealers Open Lot per Subject to        Policy                            05/20     / Homeland     schedule:                  Underlying        (10 x 5)                                    Insurance      $10,000,000                coverage                                                    Company of                                $5,000,000                                                    New York                                  840-923J3724-tCT-                                                                                             19  9.    Workers          1800011209       05/19-    Accident Fund  Bodily Injury by Accident: None        Compensation and                  05/20     National       $500,000 each accident        Employers Liability                         Insurance      Bodily Injury by Disease: 500,000        Insurance Policy                            Company        policy limit                                                                    Bodily Injury by Disease:                                                                   $500,000 each employee                               





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term  10    Property         154337          6/1/19-20  FM Global     TIV $1,301,481,892          $1M PD/TE                                                                   All Risk Company Form       subject to                                                                                              exceptions  11    Automobile       MWTB314835      6/1/19-20  ORRM          $2M Each Accident Third-Party $250,000 Liability                                                                  Liability                   Deductible                                                                  Physical Damage:            Phys                                                                  -Self-Insured               Damage/Garage:                                                                  -Actual Cash Value          $1,000                                                                  Garage Keepers:             Comprehensive                                                                  $1.5M - IA, OR, IN          Deductible   12    General Liability MWZY314834     6/1/19-20  ORRM          $1M Each Occurrence         $1M Self Insured        (Including                                                $1M Personal/Advertising Injury Retention        Products/Completed                                        $2M General Aggregate        Operations)                                               Employee Benefits Injury Liability                                                                  $1M Each 'claim' limit                                                                  $1M Aggregate - Subject to                                                                  General Aggregate    13    Excess Liability  XS2664711      6/1/19-20  Great American $10M Each Occurrence                 (10 M Lead                                 E&S Insurance $10M Aggregate (where        Excess)                                     Company       applicable)  14    Excess Liability EXS 2001017 00  6/1/19-20  Swiss Re Group $15M Each Occurrence       Subject to Great         ($15M xs $10M)                             North American $15M Aggregate Limit       American $10M                                                    Capacity      $15M Aggregate for Products-                                                   Insurance     Completed Operations                                                    Company  15    Excess Liability AR3461969       6/1/19-20  Colony        $25M Each Occurrence        Subject to         ($25M xs $25M)                             Insurance Co. $25M Aggregate              Underlying Policies 





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term  16    Foreign Package  7315-69-83 MIN  6/1/19-20  Chubb and Son, $100,000 International Property- $1,000 ded                                                    Inc. (Great   Personal Property                                                               Northern                                                                                      Insurance co) General Liability                                                                             $1M Each Occurrence                                                                           $1M General Aggregate                                                                         $1M Personal/Advertising                                                                      Aggregate                                                                                     $1M Dame to Premises Rented to                                                                   You                                                                                           $10,000 Medical Expense Limit                                                                                                                                                                 Employee Benefit Programs                                                                     Errors or Omissions                                                                           $250K Each Claim/Aggregate                                                                                                                                                                  Commercial Auto Liability                                                                     $1M BI/PD                                                                                     $10,000 Medical Payments                                                                                                                                                                    Workers' Compensation                                                                         Statutory State of Hire                                                                                                                                                                     Repatriation Expense:                                                                         $250K Each Employee                                                                           $500K Aggregate                                                                                                                                                                             Employers Liability                                                                           $1M Limit                                                                                                                                                                                   Crime                       $1,000 Deductible                                                                  $5,000 EE Theft             Crime                                                                  $5,000 Credit Card Forgery                                                                   





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term                                                                  Blanket Accident                                                                  $300K Principal Sum (Employees)                                                                  $1.5M Per Accident Maximum                                                                                                                                    Kidnap/Ranson and Extortion                                                                  $100,000 Limit    17    Crime            106747087       6/1/19-20  Travelers     $5M Each Occurrence         $100,000 Retention                                                                                              Each Loss 





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term  18    Fiduciary Liability 106474520    6/1/19-20  Travelers     $10M Aggregate All Claims   $0 Retention                                                                  $100,000 each Settlement Program                                                                  Notice                                                                  $1,5M HIPAA Limit of Liability                                                                  Add'l Defense - not covered  19    Commercial Liquor LQRIAF15480864 6/1/19-20  Chubb/Illinois $1M Each Common Cause Limit                                                      Union         $2M Aggregate  20    Directors & Officers 106535745   6/1/19-20  Travelers     $10M Aggregate              $750,000 all         Primary                                                  (includes D&O Liability,    Securities Retention                                                                  Fiduciarly Liability, Crime) $500,000 All Other                                                                                              Claims Retention  21    1st Excess Directors DOX10013130101 6/1/19-20 Sompo       $10M xs $10M                Subject to        & Officers                                  International                             Underlying Policies  22    2nd Excess       BPRO8040348     6/1/19-20  Berkley       $10M xs $20M                Subject to        Directors & Officers                        Insurance                                 Underlying Policies                                                    Company  23    3rd Excess       DOE 2001609 00  6/1/19-20  Swiss Re/North $10M xs $30M               Subject to        Directors & Officers                        American                                  Underlying Policies                                                    Specialty                                                    Insurance                                                    Company  24    4th Excess Directors USF00105819 6/1/19-20  Allianz       $10M xs ADIC D&O            Subject to        & Officers                                                                            Underlying Policies  25    Workers          MWC 314832 00   6/1/19-20  ORRM          Statutory                   $500,000 Large        Compensation -                                                                        Deductible        AOS  26    Workers          MWXS314833      6/1/19-20  ORRM          Statutory                   $1.1 M Self-Insured        Compensation - IA                                                                     Retention  27    Workers          154583-00       Continuou  Washington L&I Statutory                  n/a        Compensation                     s         - Monopolistic WA        State 





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term  28    Marine General   ZOL-16N53188-   3/1/19-20  Travelers     $2M Gen Aggregate           $10,000 Per        Liability/Marina 19-ND                      Property      $2M Prod-Comp Ops Aggregate Occurrence Ded        Operators Legal  MRP0100469                 Casualty of   $1M Pers Inj - Advertising Inj        Liability Coverage                          America/RLI   $1M Each Occurence        Marine                                                    $300,000 Title E&O Annual        Manufacturers                                             Aggregate Limit        Legal Liability - CC        Florida  29    Boat Dealers &   Z0H-81P07877-19- 3/1/19-20 Travelers     Estimated Monthly Ave Inv   $10,000 ded - All        Protection &     ND                         Property      $1,250,000                  other perid ded (per        Indemnity - CC                              Casualty of                               occurrence)        Florida                                     America       $500,000 Any One Vessel                                                                                              2.5% of total                                                                  $1M at any unscheduled premises insured value any                                                                  $1M while in course of transit by one occurrence -                                                                  land, air and water         Named Storm or                                                                                              Numbered Storm                                                                  $1M any one trade, exhibition or                                                                  boat show                                                                  $50,000 per occurrence for                                                                  accessories/supplies/inventory at                                                                  sched. premises  30    Hull Builders Risk - ZOH-41N11891- 3/1/19-20 Travelers    $500,000 Any one vessel     $50,000 ded (per        CC Florida       19-ND                      Property      $9,000,000 Any one accident or occurrence)                         MRP0100469                 Casualty of   occurrence (Yard Limit)     $5,000 ded                                                    America/RLI   $1,000,000 Any one Occurrence- Protection &                                                                  Protection & Indemnity      Indemnity ded                                                                  $3,500,000 Molds (per schedule) 2.5% of total Ins                                                                   Coinsurance Molds n/a      value (per                                                                                              occurrence) -                                                                                              Named or                                                                                              Numbered Storm                                                                                              Molds are included                                                                                              in ded 





 






                                                               Coverage Type    Policy #        Policy     Carrier       Limits                      Retention                                         Term  31    Transportation & P-660-8N064053- 3/1/19-20  Travelers     $500,000 Motor Carrier Limit $10,000 ded  - All        Equipment - CC   TIL-19                     Property      $500,000 Railroad Limit     other perils        Florida                                     Casualty of   $500,000 Land Vehicles Limit All Other Peril Ded                                                    America                                   - Named Storm                                                                  $150,000 Leased or Rented   Deductible                                                                  Equipment                   $2,500 ded - Leased                                                                                              or Rented Equip                                                                  $250,000 Newly acquired                                                                  equipment  32    Primary          ZOB-91N1422A-   3/1/19-20  Travelers     $10,000,000 Limit of Liability $25,000 Retentions        Bumbershoot - CC 19-ND        Florida  33    Excess           NY19LIA1513960  3/1/19-20  Navigators    $15M Excess $10M                     Bumbershoot - CC 1                          Insurance        Florida                                     Company