orionfifthamendmenttocre






                                                               Execution Version                    FIFTH AMENDMENT TO CREDIT AGREEMENT          THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), is   made and entered into as of March 21, 2019, by and among ORION GROUP HOLDINGS,  INC., a Delaware corporation (formerly known as Orion Marine Group, Inc.) (the “Borrower”),   certain Subsidiaries of the Borrower designated as “Guarantors” on the signature pages hereof   (together with the Borrower, the “Credit Parties”), the Lenders (as defined below) party hereto  constituting the Required Lenders, and REGIONS BANK, as administrative agent and collateral   agent for the Lenders (in such capacity, the “Agent”).                                 W I T N E S S E T H:          WHEREAS, the Borrower, the Guarantors, certain banks and other financial institutions   from time to time party thereto (the “Lenders”) and the Agent are parties to a certain Credit   Agreement, dated as of August 5, 2015 (as amended by that certain First Amendment to Credit   Agreement, dated as of April 27, 2016, that certain Second Amendment to Credit Agreement,   dated as of  July 28, 2017, that certain Third Amendment to Credit Agreement, dated as of   November 7, 2017, that certain Fourth Amendment to Credit Agreement, dated as of July 31,  2018, and as further amended, restated, supplemented, increased, extended or otherwise modified   from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise   defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant to   which the Lenders have made loans and certain other financial accommodations available to the   Borrower; and          WHEREAS, the Borrower has requested that the Required Lenders and the Agent amend   certain provisions of the Credit Agreement and, subject to the terms and conditions hereof, the  Required Lenders and the Agent are willing to do so.           NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt   of which are acknowledged, the Borrower, the Guarantors, the Required Lenders and the Agent   agree as follows:          1.    Amendments to Credit Agreement.  From and after the Fifth Amendment   Effective Date (as hereinafter  defined),  the Credit Agreement is amended pursuant to this  Amendment and amendments to the Credit Agreement prior to the date hereof 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 attached as  Annex A to this Amendment (the “Amended Credit Agreement”).          2.    Amendments to Exhibit 2.1 to Credit Agreement.  From and after the Fifth   Amendment Effective Date, Exhibit 2.1 to the Credit Agreement is amended and restated in its  entirety pursuant to this Amendment as set forth on Annex B to this Amendment.          3.    Conditions Precedent.   Completion  of  the  following  to  the  satisfaction  of  the  Agent  and  the  Required  Lenders  shall  constitute  express  conditions  precedent  to  the   effectiveness of the amendments set forth in this Amendment (and the date on which all of the  





 






   foregoing  shall  have  occurred  as  determined  by  the  Agent  being called  herein  the  “Fifth  Amendment Effective Date”):                       (a)   Executed Credit Documents.  Receipt by the Agent of counterparts of this        Amendment duly executed by the parties hereto.               (b)   Fees and Expenses.  The Agent shall have confirmation that all fees and        expenses required to be paid on or before the Fifth Amendment Effective Date have been        paid, including the fees and expenses of King & Spalding LLP.               (c)   No Default or Event of Default.  Immediately before and after giving        effect to the amendments contemplated hereby, no Default or Event of Default exists.         4.    Representations  and  Warranties.  As  of  the  Fifth  Amendment  Effective  Date,  after giving effect to this Amendment,  the  representations  and warranties  contained  in  the  Amended  Credit  Agreement  and  in  the  other  Credit  Documents  are true  and  correct  in  all  material  respects  (or,  with  respect  to  any  such  representation or  warranty  that  is  modified  by  materiality or Material Adverse Effect, are true and correct in all respects) on and as of the Fifth  Amendment Effective Date, except to the extent such representations and warranties specifically  relate to an earlier date, in which case such representations and warranties shall have been true  and correct in all material respects on and as of such earlier date, and no event has occurred and  is continuing or would result from the consummation of this Amendment and the transactions  contemplated hereby that would constitute an Event of Default or a Default.          5.    Reaffirmation of Credit Party Obligations.  Each Credit Party hereby ratifies  the Credit Agreement, as amended hereby, and each other Credit Document to which it is a party  and  acknowledges  and  reaffirms  (a) that  it  is  bound  by  all  terms of the Credit Agreement, as  amended hereby, and such other Credit Documents applicable to it and (b) that it is responsible  for the observance and full performance of its respective Obligations.          6.    Release of Claims and Covenant Not to Sue.            (a)   On the Fifth Amendment Effective Date,  in  consideration  of  the Required  Lenders’  and  the  Agent’s  agreements  contained  in  this  Amendment,  and  for  other  good  and  valuable  consideration,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged,  each  Credit  Party,  on  behalf  of  itself  and  its  successors  and  assigns,  and  its  present  and  former  members,  managers,  shareholders,  affiliates,  subsidiaries,  divisions,  predecessors,  directors,  officers,  attorneys,  employees,  agents,  legal  representatives, and  other  representatives  (each  Credit  Party  and  all  such  other  Persons  being  hereinafter  referred  to  collectively  as  the  “Releasing Parties” and individually as a “Releasing Party”), hereby absolutely, unconditionally,  and irrevocably releases, remises, and forever discharges Agent, each Lender, and each of their  respective  successors  and  assigns,  and  their  respective  present  and  former  shareholders,  members, managers, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,  employees, agents, legal representatives, and other representatives (Agent, Lenders, and all such  other Persons being hereinafter referred to collectively as the “Releasees” and individually as a  “Releasee”), of and from any and all demands, actions, causes of action, suits, damages, and any  and  all  other  claims,  counterclaims,  defenses,  rights  of  set-off,  demands,  and  liabilities                                         2 





 






   whatsoever (individually, a “Claim” and collectively, “Claims”) of every kind and nature, known  or unknown, suspected or unsuspected, at law or in equity, which any Releasing Party or any of  its successors, assigns, or other legal representatives may now or hereafter own, hold, have, or  claim to have against the Releasees or any of them for, upon, or by reason of any circumstance,  action,  cause,  or  thing  whatsoever  which  arises  at  any  time  on or  prior  to  the  date  of  this  Amendment  for  or  on  account  of,  in  relation  to,  or  in  any  way  in  connection  with  this  Amendment,  the  Credit  Agreement,  any  of  the  other  Credit  Documents,  or  any  of  the  transactions hereunder or thereunder.         (b)   Each Credit Party understands, acknowledges, and agrees that the release set forth  above may be pleaded as a full and complete defense to any Claim and may be used as a basis  for  an  injunction  against  any  action,  suit,  or  other  proceeding which may be instituted,  prosecuted, or attempted in breach of the provisions of such release.         (c)   Each  Credit  Party  agrees  that  no  fact,  event,  circumstance,  evidence,  or  transaction which could now be asserted or which may hereafter be discovered will affect in any  manner the final, absolute, and unconditional nature of the release set forth above.         (d)   On  and  after  the  Fifth  Amendment  Effective  Date,  each  Credit  Party  hereby  absolutely,  unconditionally  and  irrevocably  covenants  and  agrees  with  and  in  favor  of  each  Releasee that it will not sue (at law, in equity, in any regulatory proceeding, or otherwise) any  Releasee  on  the  basis  of  any  Claim  released,  remised,  and  discharged  by  any  Credit  Party  pursuant to clause (a) of this Section.  If any Credit Party violates the foregoing covenant, the  Borrower,  for  itself  and  its  successors  and  assigns,  and  its  present  and  former  members,  managers,  shareholders,  affiliates,  subsidiaries,  divisions,  predecessors,  directors,  officers,  attorneys, employees, agents, legal representatives, and other representatives, agrees to pay, in  addition  to  such  other  damages  as  any  Releasee  may  sustain  as  a  result  of  such  violation,  all  attorneys’ fees and costs incurred by any Releasee as a result of such violation.          7.    Effect  of Amendment.   Except  as  set  forth  expressly  herein,  all  terms  of  the  Credit Agreement, as amended hereby, and the other Credit Documents shall be and remain in  full force and effect and shall constitute the legal, valid, binding and enforceable obligations of  the Borrower to the Lenders and the Agent.  The execution, delivery and effectiveness of this  Amendment  shall  not,  except  as  expressly  provided  herein,  operate  as  a  waiver  of  any  right,  power or remedy of the Lenders under the Credit Agreement or the other Credit Documents, nor  constitute  a  waiver  of  any  provision  of  the  Credit Agreement  or the other Credit Documents.   This Amendment shall constitute a Credit Document for all purposes of the Credit Agreement.          8.    Governing  Law.   This  Amendment  shall  be  governed  by,  and  construed  in  accordance with, the internal laws of the State of New York.          9.    No Novation.  This Amendment is not intended by the parties to be, and shall not  be construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard  thereto.          10.   Counterparts.  This Amendment may be executed by one or more of the parties  hereto in any number of separate counterparts, each of which shall be deemed an original and all                                         3 





 






   of which, taken together, shall be deemed to constitute one and the same instrument.  Delivery of  an executed counterpart of this Amendment by facsimile transmission or by electronic mail in  pdf form shall be as effective as delivery of a manually executed counterpart hereof.          11.   Binding Nature.  This Amendment shall be binding upon and inure to the benefit  of the parties hereto, their respective successors, successors-in-titles, and assigns.          12.   Entire Understanding.  This Amendment sets forth the entire understanding of  the parties with respect to the matters set forth herein, and shall supersede any prior negotiations  or agreements, whether written or oral, with respect thereto.                               [Signature Pages To Follow]                                          4 





 






 





 






 





 






 





 






                          AGENT:                        REGIONS BANK, as Administrative Agent,            Collateral Agent, Issuing Bank and as a Lender                        By: __________________________            Name:  David Baynash            Title: Senior Vice President                                             Orion  Signature Page to Fifth Amendment  





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






                       ANNEX A                Amended Credit Agreement                       [Attached]                  





 






                              CONFORMED THROUGH AMENDMENT NO. 1 DATED AS OF APRIL 27, 2016                                              AND AMENDMENT NO. 2 DATED AS OF JULY 28, 2017                                         AND AMENDMENT NO. 3 DATED AS OF NOVEMBER 7, 2017                                             AND AMENDMENT NO. 4 DATED AS OF JULY 31, 2018                                           AND AMENDMENT NO. 5 DATED AS OF MARCH 21, 2019                                CREDIT AGREEMENT                              dated as of August 5, 2015                                      among                          ORION GROUP HOLDINGS, INC.                                   as Borrower,                    CERTAIN SUBSIDIARIES OF THE BORROWER                      PARTY HERETO FROM TIME TO TIME,                                  as Guarantors                          THE LENDERS PARTY HERETO,                                 REGIONS BANK,                     as Administrative Agent and Collateral Agent                                       and                             BANK OF AMERICA, N.A.                                      and                        BOKF, NA DBA BANK OF TEXAS,                             as Co-Syndication Agents,                            REGIONS CAPITAL MARKETS,                             a division of Regions Bank,                         as Lead Arranger and Book Manager   DMSLIBRARY01\28783273.v12 





 






                                TABLE OF CONTENTS                                                                                   Page  Section 1.   DEFINITIONS AND INTERPRETATION                                          1        Section 1.1  Definitions.                                                     2        Section 1.2  Accounting Terms.                                             3435       Section 1.3   Rules of Interpretation.                                      3435 Section 2    LOANS AND LETTERS OF CREDIT                                          3537       Section 2.1   Revolving Loans and Term Loans.                               3537       Section 2.2   Swingline Loans.                                              4041       Section 2.3   Issuances of Letters of Credit and Purchase of Participations Therein. 4344       Section 2.4   Pro Rata Shares; Availability of Funds.                       4648       Section 2.5   Evidence of Debt; Register; Lenders’ Books and Records; Notes. 4849       Section 2.6   Scheduled Principal Payments.                                 4849       Section 2.7   Interest on Loans.                                            4950       Section 2.8   Conversion/Continuation.                                      5152       Section 2.9   Default Rate of Interest.                                     5253       Section 2.10  Fees.                                                         5254       Section 2.11  Prepayments/Commitment Reductions.                            5455       Section 2.12  Application of Prepayments.                                   5657       Section 2.13  General Provisions Regarding Payments.                        5658       Section 2.14  Sharing of Payments by Lenders.                               5859       Section 2.15  Cash Collateral.                                              5859       Section 2.16  Defaulting Lenders.                                           5960       Section 2.17  Removal or Replacement of  Lenders.                           6163 Section 3    YIELD PROTECTION                                                     6264       Section 3.1   Making or Maintaining LIBOR Loans.                            6264       Section 3.2   Increased Costs.                                              6466       Section 3.3   Taxes.                                                        6667       Section 3.4   Mitigation Obligations; Designation of a Different Lending Office. 6970 Section 4    GUARANTY                                                             6970       Section 4.1.  The Guaranty.                                                 6970       Section 4.2   Obligations Unconditional.                                    7071       Section 4.3   Reinstatement.                                                7172       Section 4.4   Certain Additional Waivers.                                   7172       Section 4.5   Remedies.                                                     7172       Section 4.6   Rights of Contribution.                                       7172       Section 4.7   Guarantee of Payment; Continuing Guarantee.                   7173       Section 4.8   Keepwell.                                                     7273 Section 5    CONDITIONS PRECEDENT                                                 7273       Section 5.1   Conditions Precedent to Initial Credit Extensions.            7273       Section 5.2   Conditions to Each Credit Extension.                          7677 Section 6    REPRESENTATIONS AND WARRANTIES                                       7678       Section 6.1   Organization; Requisite Power and Authority; Qualification.   7678       Section 6.2   Equity Interests and Ownership.                               7778                                               i 





 






      Section 6.3   Due Authorization.                                            7778       Section 6.4   No Conflict.                                                  7778       Section 6.5   Governmental Consents.                                        7779       Section 6.6   Binding Obligation.                                           7779       Section 6.7   Financial Statements.                                         7779       Section 6.8   No Material Adverse Effect; No Default.                       7880       Section 6.9   Tax Matters.                                                  7880       Section 6.10  Properties.                                                   7880       Section 6.11  Environmental Matters.                                        8081       Section 6.12  No Defaults.                                                  8081       Section 6.13  No Litigation or other Adverse Proceedings.                   8082       Section 6.14  Information Regarding the Borrower and its Subsidiaries.      8082       Section 6.15  Governmental Regulation.                                      8082       Section 6.16  Employee Matters.                                             8183       Section 6.17  Pension Plans.                                                8283       Section 6.18  Solvency.                                                     8284       Section 6.19  Compliance with Laws.                                         8284       Section 6.20  Disclosure.                                                   8284       Section 6.21  Insurance.                                                    8384       Section 6.22  Pledge Agreement and Security Agreement.                      8385       Section 6.23  [Reserved].                                                   8385       Section 6.24  Vessel Qualification.                                         8485 Section 7    AFFIRMATIVE COVENANTS                                                8485       Section 7.1   Financial Statements and Other Reports.                       8485       Section 7.2   Existence.                                                    8688       Section 7.3   Payment of Taxes and Claims.                                  8688       Section 7.4   Maintenance of Properties.                                    8788       Section 7.5   Insurance.                                                    8788       Section 7.6   Inspections.                                                  8789       Section 7.7   Lenders Meetings.                                             8789       Section 7.8   Compliance with Laws and Material Contracts.                  8789       Section 7.9   Use of Proceeds.                                              8889       Section 7.10  Environmental Matters.                                        8889       Section 7.11  [Reserved].                                      88Real Estate Assets.   90       Section 7.12  Pledge of Personal Property Assets.                           8892       Section 7.13  Books and Records.                                            8993       Section 7.14  Additional Subsidiaries.                                      8993       Section 7.15  Interest Rate Protection.                                     8993       Section 7.16  Covenants Relating to the Vessels.                            9093       Section 7.17  Cash Management.                                              9094       Section 7.18  Landlord Waivers.                                             9094 Section 8    NEGATIVE COVENANTS                                                   9194       Section 8.1   Indebtedness.                                                 9194       Section 8.2   Liens.                                                        9295       Section 8.3   No Further Negative Pledges.                                  9397       Section 8.4   Restricted Payments.                                          9497       Section 8.5   Burdensome Agreements.                                        9498       Section 8.6   Investments.                                                  9498       Section 8.7   Use of Proceeds.                                              9599                                             ii 





 






      Section 8.8   Financial Covenants                                           9599       Section 8.9   Fundamental Changes; Disposition of Assets; Acquisitions.     9599       Section 8.10  Disposal of Subsidiary Interests.                            96100       Section 8.11  Sales and Lease-Backs.                                       96100       Section 8.12  Transactions with Affiliates and Insiders.                   96100       Section 8.13  Prepayment of Other Funded Debt.                             96100       Section 8.14  Conduct of Business.                                         97101       Section 8.15  Fiscal Year; Accounting Changes.                             97101       Section 8.16  Amendments to Organizational Agreements/Material Agreements. 97101       Section 8.17  Capital Expenditures.                                        97101       Section 8.18  Negative Covenants Relating to the Vessels.                  97101 Section 9    EVENTS OF DEFAULT; REMEDIES; APPLICATION OF FUNDS.                  97101       Section 9.1   Events of Default.                                           97101       Section 9.2   Remedies.                                                    99103       Section 9.3   Application of Funds.                                       100104 Section 10   AGENCY                                                             101105       Section 10.1  Appointment and Authority.                                  101105       Section 10.2  Rights as a Lender.                                         102106       Section 10.3  Exculpatory Provisions.                                     102106       Section 10.4  Reliance by Administrative Agent.                           103107       Section 10.5  Delegation of Duties.                                       103107       Section 10.6  Resignation of Administrative Agent.                        103107       Section 10.7  Non-Reliance on Administrative Agent and Other Lenders.     104108       Section 10.8  No Other Duties, etc.                                       105109       Section 10.9  Administrative Agent May File Proofs of Claim.              105109       Section 10.10 Collateral Matters.                                         105109 Section 11   MISCELLANEOUS                                                      107111       Section 11.1  Notices; Effectiveness; Electronic Communications.          107111       Section 11.2  Expenses; Indemnity; Damage Waiver.                         108112       Section 11.3  Set-Off.                                                    110114       Section 11.4  Amendments and Waivers.                                     110114       Section 11.5  Successors and Assigns.                                     112116       Section 11.6  Independence of Covenants.                                  116120       Section 11.7  Survival of Representations, Warranties and Agreements.     116120       Section 11.8  No Waiver; Remedies Cumulative.                             116120       Section 11.9  Marshalling; Payments Set Aside.                            116120       Section 11.10 Severability.                                               117121       Section 11.11 Obligations Several; Independent Nature of Lenders’ Rights. 117121       Section 11.12 Headings.                                                   117121       Section 11.13 Applicable Laws.                                            117121       Section 11.14 WAIVER OF JURY TRIAL.                                       118122       Section 11.15 Confidentiality.                                            118122       Section 11.16 Usury Savings Clause.                                       119123       Section 11.17 Counterparts; Integration; Effectiveness.                   119123       Section 11.18 No Advisory of Fiduciary Relationship.                      120124       Section 11.19 Electronic Execution of Assignments and Other Documents.    120124       Section 11.20 USA PATRIOT Act.                                            120124                                             iii 





 






Section 11.21 Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial               Institutions.                                               120124                                        iv 





 






Appendices Appendix A          Lenders, Commitments and Commitment Percentages Appendix B          Notice Information  Schedules Schedule 6.1        Organization; Requisite Power and Authority; Qualification Schedule 6.2        Equity Interests and Ownership Schedule 6.10(b)    Real Estate Assets Schedule 6.10(d)    Vessels Schedule 6.14       Name, Jurisdiction and Tax Identification Numbers of Borrower and its                      Subsidiaries Schedule 6.21       Insurance Coverage Schedule 8.1        Existing Indebtedness Schedule 8.2        Existing Liens Schedule 8.6        Existing Investments  Exhibits Exhibit 1.1         Form of Secured Party Designation Notice Exhibit 2.1         Form of Funding Notice Exhibit 2.3         Form of Issuance Notice Exhibit 2.5-1       Form of Revolving Loan Note Exhibit 2.5-2       Form of Swingline Note Exhibit 2.5-3       Form of Term Loan Note Exhibit 2.8         Form of Conversion/Continuation Notice Exhibit 3.3         Forms of U.S. Tax Compliance Certificates (Forms 1 – 4) Exhibit 7.1(c)      Form of Compliance Certificate Exhibit 7.14        Form of Guarantor Joinder Agreement Exhibit 11.5        Form of Assignment Agreement                                               v 





 






                                 CREDIT AGREEMENT        This CREDIT AGREEMENT, dated as of August 5, 2015 (as amended, restated, supplemented, increased, extended, supplemented or otherwise modified from time to time, this “Agreement”), is entered into by and among ORION MARINE GROUP, INC., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower from time to time party hereto, as Guarantors, the Lenders from time to time party hereto, REGIONS BANK, as administrative agent (in such capacity, “Administrative Agent”) and collateral agent (in such capacity, “Collateral Agent”).                                        RECITALS:         WHEREAS, on the Closing Date, the Lenders, at the Borrower’s request, extended credit in the form of (i) the Initial Term Loan in the aggregate principal amount of $135,000,000 and (ii) revolving commitments  in  an  aggregate  principal  amount  of  up  to  $50,000,000  (the  “Initial  Revolving Credit  Facility”);         WHEREAS,  the  Borrower has  requested  that  the  Lenders  extend  credit  on  the  Fourth Amendment  Effective  Date  in  the  form  of  (i)  a  Fourth  Amendment Replacement  Term  Loan  in  an aggregate  principal  amount  of  $60,000,000  and  (ii)  Revolving  Commitments  in  an  aggregate  principal amount of up to $100,000,000 (collectively, the “Fourth Amendment Replacement Facilities”);         WHEREAS,  immediately  prior  to  the  Fourth  Amendment  Effective  Date,  $72,000,000  of  the Initial Term Loan remained outstanding (the “Initial Term Loan Outstanding Amount”);         WHEREAS,   at the Borrower has requested that’s request, on the Fourth Amendment Effective Date,  (i)  (A)  the  Fourth  Amendment  Replacement  Term  Loan replacereplaced  the  Initial  Term  Loan through  a  “cashless  roll”  of  the  Initial  Term  Loan  and  (B)  $60,000,000  of  the  Initial  Term  Loan Outstanding  Amount bewas  deemed  to  be  the  Outstanding  Amount  of  the  Fourth  Amendment Replacement Term Loan from and after the Fourth Amendment Effective Date, subject to the prepayment or  repayment  of  such  Outstanding  Amount  after  the  Fourth  Amendment  Effective  Date  in  accordance with  the  terms  of  this  Agreement  and  (ii)  (A)  the  Revolving  Commitments replacereplaced  the  Initial Revolving Credit Facility and (B) the remaining portion of the Initial Term Loan Outstanding Amount, after giving effect to the deemed disbursement of the Fourth Amendment Replacement Term Loan on the Fourth Amendment Effective Date ($12,000,000), bewas reallocated to the Revolving Commitments and  be deemed to be a portion of the Outstanding Amount of the Revolving Loans from and after the Fourth Amendment  Effective  Date,  subject  to  any  Borrowings  and  prepayments  or  repayments  of  Revolving Loans and Swingline Loans, as the case may be, occurring after the Fourth Amendment Effective Date in accordance with the terms of this Agreement (such transactions, the “Fourth Amendment Replacement  and Reallocation Transactions”); and         WHEREAS, the Lenders have agreed to provideprovided the Fourth Amendment Replacement Facilities  and consummateconsummated  the  Fourth  Amendment  Replacement  and  Reallocation Transactions on the terms and conditions set forth herein.         NOW,  THEREFORE,  in  consideration  of  these  premises  and  the  mutual  covenants  and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:                     Section 1.   DEFINITIONS AND INTERPRETATION   DMSLIBRARY01\28783273.v12 





 






      Section 1.1   Definitions.   The  following  terms  used  herein,  including  in  the  introductory paragraph, recitals, exhibits and schedules hereto, shall have the following meanings:        “2017 Q3 Hurricane Add-Back” means as defined in the definition of “Consolidated EBITDA”.        “Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or any substantial portion of the property of another Person or at least a majority of the Equity Interests of another Person, in each case whether or not involving a merger or consolidation  with  such  other Person  and  whether  for  cash,  property,  services,  assumption  of Indebtedness, securities or otherwise.         “Adjusted LIBOR Rate”  means,  for  any  Interest  Rate  Determination  Date  with  respect to  an Interest Period for an Adjusted LIBOR Rate Loan, the rate per annum obtained by dividing (a) (i) the rate per annum (rounded upward to the next whole multiple of one sixteenth of one percent (1/16 of 1%)) equal  to  the  LIBOR  or  a  comparable  or  successor  rate,  which  rate  is  approved  by  the  Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing  such  quotations  as  may  be  designated  by  the  Administrative  Agent  from  time  to  time)  for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded upward to the next whole multiple of one sixteenth of one percent (1/16 of 1%)) equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays an average settlement rate for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (iii) in the event the rates referenced in the preceding clauses (i) and (ii) are not  available,  the  rate per annum (rounded upward to the next whole multiple of one sixteenth of one percent (1/16 of 1%)) equal to quotation rate (or the arithmetic mean of rates) offered to first class banks in  the  London  interbank  market  for  deposits  (for  delivery  on  the  first  day  of  the  relevant  period)  in Dollars  of  amounts  in  same  day  funds  comparable  to  the  principal  amount  of  the  applicable  Loan  of Regions Bank or any other Lender selected by the Administrative Agent, for which the Adjusted LIBOR Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London,  England  time)  on  such  Interest  Rate  Determination  Date,  by  (b)  an  amount  equal  to  (i)  one, minus  (ii)  the  Applicable  Reserve  Requirement.   Notwithstanding  the foregoing,  for  purposes  of  this Agreement, the Adjusted LIBOR Rate shall in no event be less than 0% at any time.        “Adjusted LIBOR Rate Loan” means Loans bearing interest based on the Adjusted LIBOR Rate.         “Administrative Agent” means as defined in the introductory paragraph hereto, together with its successors and assigns.        “Administrative Questionnaire” means an administrative questionnaire provided by the Lenders in a form supplied by the Administrative Agent.        “Adverse  Proceeding”  means  any  action,  suit,  proceeding  (whether  administrative,  judicial  or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of any Credit Party or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, whether pending, threatened in writing against any Credit Party or any of its Subsidiaries or any material property of any Credit Party or any of its Subsidiaries.         “Affected Lender” means as defined in Section 3.1(b).                                              2 





 






      “Affected Loans” means as defined in Section 3.1(b).        “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.         “Agent” means each of the Administrative Agent and the Collateral Agent.         “Aggregate  Revolving  Commitments”  means  the  Revolving  Commitments  of  all  the  Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date was  FIFTY  MILLION  DOLLARS  ($50,000,000).   The  aggregate  principal  amount  of  the  Aggregate Revolving  Commitments  in  effect  from  and  after  the  Fourth  Amendment  Effective  Date  is  ONE HUNDRED MILLION DOLLARS ($100,000,000).        “Agreement” means as defined in the introductory paragraph hereto.        “ALTA” means American Land Title Association.        “Applicable Laws” means all applicable laws, including all applicable provisions of constitutions, statutes, rules, ordinances, regulations and orders of all Governmental Authorities and all orders, rulings, writs and decrees of all courts, tribunals and arbitrators.        “Applicable Margin” means (a) from the Closing Date through the date two (2) Business Days immediately following the date a Compliance Certificate is delivered pursuant to Section 7.1(c) for the Fiscal Quarter ending September 30, 2015, the percentage per annum based upon Pricing Level 3 in the table set forth below, (b) from the Fourth Amendment Effective Date through the date two (2) Business Days immediately following the date a Compliance Certificate is delivered pursuant to Section 7.1(c) for the Fiscal Quarter ended September 30, 2018, the percentage per annum based upon Pricing Level 1 in the table set forth below, and (c(c) from the Fifth Amendment Effective Date through the date two (2)  Business Days immediately following the date a Compliance Certificate is delivered pursuant to Section  7.1(c) for the Fiscal Quarter ended June 30, 2019, the percentage per annum based upon Pricing Level 4  in the table set forth below and (d) thereafter, the percentage per annum determined by reference to the table set forth below using the Consolidated Leverage Ratio as set forth in the Compliance Certificate most  recently  delivered  to  the  Administrative  Agent  pursuant  to  Section 7.1(c),  with  any  increase  or decrease in the Applicable Margin resulting from a change in the Consolidated Leverage Ratio becoming effective on the date two (2) Business Days immediately following the date on which such Compliance Certificate is delivered.   Pricing   Consolidated Leverage Ratio Adjusted LIBOR Rate     Base Rate  Commitment   Level                              Loans and Letter of Credit Loans         Fee                                                Fee     1         Less than 1.50 to 1.00        1.752.00%         0.751.00%      0.30%      2      Greater than or equal to 1.50    2.002.25%         1.001.25%      0.35%            to 1.00 but less than 2.00 to                      1.00     3      Greater than or equal to 2.00    2.252.50%         1.251.50%      0.40%            to 1.00 but less than 2.75 to                      1.00     4      Greater than or equal to 2.75    2.502.75%         1.501.75%      0.45%                     to 1.00                                             3 





 






      Notwithstanding the foregoing, (x) if at any time a Compliance Certificate is not delivered when due in accordance herewith, then Pricing Level 4 as set forth in the table above shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered and (y) the determination of the Applicable Margin for any period shall be subject to the provisions of Section 2.7(e). The  Applicable  Margin  with  respect  to  any  additional  Term  Loan established  pursuant  to  Section  2.1(d)(iii) shall be as provided in the joinder document(s) and/or commitment agreement(s) executed by the Borrower and the applicable Lenders in connection therewith.         “Applicable Reserve Requirement” means, at any time, for any LIBOR Loan, the maximum rate, expressed  as  a  decimal,  at  which  reserves  (including  any  basic marginal,  special,  supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D of the Board of Governors of the Federal Reserve System,  as  in  effect  from  time  to  time)  under  regulations  issued  from  time  to  time  by  the  Board  of Governors  of  the  Federal  Reserve  System  or  other  applicable  banking  regulator.   Without  limiting  the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or LIBOR Index Rate or any other interest rate  of  a  Loan  is  to  be  determined,  or  (b)  any  category  of  extensions  of  credit  or  other  assets  which include Adjusted LIBOR Rate Loans or Base Rate Loans determined by reference to the LIBOR Index Rate.  Adjusted LIBOR Rate Loans and Base Rate Loans determined by reference to the LIBOR Index Rate shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefit of credit for pro ration, exception or offsets that may be available from time to  time  to  the  applicable  Lender.   The  rate  of  interest  on  Adjusted  LIBOR  Rate  Loans  and  Base  Rate Loans determined by reference to the Index Rate shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.         “Approved  Fund”  means  any  Fund  that  is  administered  or  managed  by  (a)  a  Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Asset Sale” means a sale, lease, sale and leaseback, assignment, conveyance, exclusive license (as  licensor),  transfer or  other  disposition  to,  or  any  exchange  of  property  with,  any Person,  in  one transaction or a series of transactions, of all or any part of any Credit Party or any of its Subsidiaries’ businesses,  assets  or  properties  of  any  kind,  whether  real,  personal,  or  mixed  and  whether  tangible  or intangible,  whether  now  owned  or  hereafter  acquired,  created,  leased  or licensed, including the Equity Interests of any Subsidiary of the Borrower, other than (a) dispositions of surplus, obsolete or worn out property  or  property  no  longer  used  or  useful  in  the  business  of  the  Borrower  and  its  Subsidiaries, whether  now  owned  or  hereafter  acquired,  in  the  ordinary  course  of  business;  (b)  dispositions  of inventory sold, and Intellectual Property licensed, in the ordinary course of business; (c) dispositions of accounts  or  payment  intangibles  (each  as  defined  in  the  UCC)  resulting  from  the  compromise  or settlement thereof in the ordinary course of business for less than the full amount thereof; (d) dispositions of Cash Equivalents in the ordinary course of business; and (e) licenses, sublicenses, leases or subleases granted to any third parties in arm’s-length commercial transactions in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Subsidiaries.         “Assignment  Agreement”  means  an  assignment  agreement  entered  into  by  a  Lender  and  an Eligible  Assignee  (with  the  consent  of  any  party  whose  consent is  required  by  Section  11.5(b)) and accepted  by  the  Administrative  Agent,  in  substantially  the  form  of  Exhibit  11.5  or  any  other  form (including electronic documentation generated by ClearPar or other electronic platform) approved by the Administrative Agent.                                              4 





 






      “Attributable Principal Amount” means (a) in the case of Capital Leases, the amount of Capital Lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases, an amount determined  by  capitalization  of  the  remaining  lease  payments  thereunder  as  if  it  were  a  Capital  Lease determined  in  accordance  with  GAAP,  (c)  in  the  case  of  Securitization  Transactions,  the  outstanding principal  amount  of  such  financing,  after  taking  into  account  reserve  amounts  and  making  appropriate adjustments, determined by the Administrative Agent in its reasonable judgment and (d) in the case of Sale and Leaseback Transactions, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.        “Authorized  Officer”  means,  as  applied  to  any  Person,  any  individual  holding  the  position  of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent  thereof),  chief  financial  officer  or  treasurer  and, solely  for  purposes  of  making  the certifications required under Section 5.1(b)(ii) and (iv), any secretary or assistant secretary.         “Auto Borrow Agreement” has the meaning specified in Section 2.2(b)(vi).        “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.        “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.         “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  Federal  Funds  Effective  Rate  in  effect  on  such  day  plus  1⁄2  of  one  percent (0.5%) and (c) the LIBOR Index Rate in effect on such day plus one percent (1.0%).  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Index Rate shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Index Rate, respectively.  Notwithstanding the foregoing, for purposes of this Agreement, the Base Rate shall in no event be less than 0% at any time.        “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.        “Bilbo Project” means the project undertaken by the Credit Parties in Savanah, Georgia for the  purpose of creating a storm water canal in connection with Savanah’s Bilbo Canal.         “Borrower” means as defined in the introductory paragraph hereto.         “Borrowing” means (a) a borrowing consisting of simultaneous Loans of the same Type of Loan and, in the case of Adjusted LIBOR Rate Loans, having the same Interest Period, or (b) a borrowing of Swingline Loans, as appropriate.        “Business Day”  means  (a)  any  day  excluding  Saturday,  Sunday  and  any  day  which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close, and (b) with respect to all notices,  determinations,  fundings  and  payments  in  connection  with  the  Adjusted  LIBOR  Rate  and                                              5 





 






Adjusted  LIBOR  Rate  Loans  (and  in  the  case  of  determinations,  the  Index  Rate  and  Base  Rate  Loans based  on  the  LIBOR  Index  Rate),  the  term  “Business Day”  means  any  day  which  is  a  Business  Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.         “Cape Lisburne Project” means the project undertaken by the Credit Parties in Cape Lisburne,  Alaska for the purpose of fortifying a sea wall to provide erosion protection for a United States military  air strip.        “Capital  Lease”  means,  as  applied  to  any  Person,  any  lease  of  any  property  (whether  real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.         “Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent, any Issuing Bank or the Swingline Lender, as applicable, as collateral for the Letter of Credit Obligations or Swingline Loans, as applicable, or obligations of Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Administrative Agent, any Issuing Bank or Swingline Lender, as applicable, may agree in their sole discretion, other credit support, in each case pursuant to documentation in  form  and  substance  reasonably satisfactory  to  the  Administrative  Agent,  such  Issuing  Bank  and/or Swingline Lender, as applicable.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.         “Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States government, or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one (1) year after such date; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one (1) year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from  Moody’s;  (c)  commercial  paper  maturing  no  more  than  one  (1)  year  from  the  date  of  creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one (1) year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as  defined  in  the  regulations  of  its  primary  federal  banking  regulator),  and  (ii)  has  Tier  1  capital  (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.         “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental  Authority  or  (c)  the  making  or  issuance  of  any  request,  rule,  guideline  or  directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, (ii) all requests, rules,  guidelines  or  directives  promulgated  by  the  Bank  for  International  Settlements,  the  Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory  authorities,  in  each  case  pursuant  to  Basel  III  and (iii)  all  requests,  rules,  guidelines  or directives  issued  by  a  Governmental  Authority  in  connection  with  a  Lender’s  submission  or                                              6 





 






re-submission  of  a  capital  plan  under  12  C.F.R.  §  225.8  or  a  Governmental  Authority’s  assessment thereof shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.         “Change of Control” means an event or series of events by which:               (a)    any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of        the  Exchange  Act  of  1934,  but  excluding  any  employee  benefit  plan  of  such  person  or  its        subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or        administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and        13d-5 under the Exchange Act of 1934, except that a person or group shall be deemed to have        “beneficial ownership” of all securities that such person or group has the right to acquire (such        right, an “option right”), whether such right is exercisable immediately or only after the passage        of time), directly or indirectly, of 20% or more of the Equity Interests of the Borrower entitled to        vote for members of the board of directors or equivalent governing body of the Borrower on a        fully diluted basis (and taking into account all such securities that such person or group has the        right to acquire pursuant to any option right); or               (b)    during  any  period  of  twenty-four  (24)  consecutive  months,  a majority  of  the        members of the board of directors or other equivalent governing body of the Borrower cease to be        composed of individuals (i) who were members of that board or equivalent governing body on the        first day of such period, (ii) whose election or nomination to that board or equivalent governing        body was approved by individuals referred to in clause (i) above constituting at the time of such        election  or  nomination  at  least  a  majority  of  that  board  or  equivalent  governing  body  or  (iii)        whose election or nomination to that board or other equivalent governing body was approved by        individuals  referred  to  in  clauses  (i)  and  (ii)  above  constituting  at  the  time  of  such  election  or        nomination at least a majority of that board or equivalent governing body.         “Closing Date” means August 5, 2015.        “Closing Date Acquisition” means the acquisition of all of the membership interests of the Target and the membership and partnership interests in certain Subsidiaries and Affiliates of the Target, pursuant to the Closing Date Acquisition Agreement.         “Closing Date  Acquisition  Agreement”  means  that  certain  Membership  Interest  Purchase Agreement dated  as  of  August 5,  2015  by  and  between  T.A.S.  Holdings,  LLC,  as  seller  and  Orion Concrete Construction, LLC.         “Closing Date  Acquisition  Agreement  Assignment”  means  that  certain  Assignment  of Representations, Warranties, Covenants and Indemnities, dated as of the Closing Date by the Borrower in favor of the Administrative Agent and acknowledged by T.A.S. Holdings, LLC, in form and substance reasonably satisfactory to the Administrative Agent.         “Closing Date Acquisition Documents” means the Closing Date Acquisition Agreement and all related instruments and agreements executed in connection therewith.        “Collateral”  means  the  collateral  identified  in,  and  at  any  time  covered  by,  the  Collateral Documents.        “Collateral  Agent”  means  as  defined  in  the  introductory  paragraph  hereto,  together  with  its successors and assigns.                                              7 





 






      “Collateral  Documents”  means  the  Pledge  Agreement,  the  Security  Agreement,  Closing  Date Acquisition  Agreement  Assignment,  the  Fleet  Mortgages  and  all  other  instruments,  documents  and agreements  delivered  by  any  Credit  Party  pursuant  to  this  Agreement  or  any  of  the  other  Credit Documents in order to grant to the Collateral Agent, for the benefit of the holders of the Obligations, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.        “Commitments” means the Revolving Commitments and the Term Loan Commitments.        “Commitment Fee” means as defined in Section 2.10(a).        “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).        “Compliance  Certificate”  means  a  Compliance  Certificate  substantially  in  the  form  of  Exhibit  7.1(c).         “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 Capital Expenditures” means, for any period, for the Borrower and its Subsidiaries on  a  consolidated  basis,  all  capital  expenditures,  as  determined  in  accordance  with  GAAP;  provided, however, that Consolidated Capital Expenditures shall not include (a) expenditures made with proceeds of any Involuntary Disposition to the extent such expenditures are used to purchase property that is the same as or similar to the property subject to such Involuntary Disposition or (b) Permitted Acquisitions.        “Consolidated  Current  Assets”  means,  as  of  any  date  of  determination,  the  total  assets  of  the Borrower and its Subsidiaries on a consolidated basis, that may properly be classified as current assets in accordance with GAAP, excluding cash and Cash Equivalents.        “Consolidated Current Liabilities” means, as of any date of determination, the total liabilities of the  Borrower  and  its  Subsidiaries  on  a  consolidated  basis,  that  may  properly  be  classified  as  current liabilities in accordance with GAAP, excluding the current portion of long term debt.         “Consolidated EBITDA”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries on  a consolidated basis, an amount equal to Consolidated Net Income for such period plus the following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b) the provision for federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period, (c) depreciation and amortization expense for such period, (d) all non-cash expenses, charges and losses (or minus any non-cash gains) for such period (excluding those expenses, charges  and  losses  related  to  accounts  receivable)  so  long  such  expenses,  charges  and  losses  are  not expected  to  be  paid  in  cash  at  any  time  in  the  future and,  (e)  costs,  expenses,  charges  and  losses (including,  without  limitation,  due  to  business  interruption) related to the  impact of  hurricanes on  business operations, facilities and inventoryactually incurred or suffered related to (i) project delays in  connection with the (x) Cape Lisburne Project in an amount not to exceed $16,000,000, (y) Bilbo Project  in an  amount  not to  exceed  $2,800,000 and (z)  Kinder  Morgan  Matter in an  amount  not to  exceed  $1,700,000, in each case with respect to the forgoing clauses (x), (y) and (z), for the Fiscal Quarter of the  Borrower  ended  December  18,  2018;  provided, that,  Consolidated EBITDA shall be  reduced by the  amount of contractual proceeds actually received or recoveries realized in excess of contractual payments  or collections of receivables reserved for, as applicable, in each with respect to such projects during such  period in an aggregate amount not to exceed the amount of such costs, expenses, charges and losses added  back for such period pursuant to this clause (e)(i) and (ii) the impact of certain weather-related events solely  with  respect  to  the  Fiscal  Quarter ended  September  30,  2017 in an  amount  not to  exceed                                               8 





 






$16,500,000 for such  Fiscal Quarter (the “2017 Q3  Hurricane  Add-Back”of the  Borrower  ended  December  31, 2018 in an  aggregate amount not to  exceed  $6,500,000 for such  Fiscal Quarter, and  (f)  costs and  expenses  actually  incurred  with  respect to the  consulting  services (i) of  Alvarez &  Marshal  (A&M) for the Fiscal Quarters of the Borrower ending March 31, 2019 and June 30, 2019 in an aggregate  amount not to exceed $1,700,000 for such Fiscal Quarters, collectively, and (ii) for IT-Related Projects  for the Fiscal Quarters of the Borrower ending March 31, 2019, June 30, 2019, September 30, 2019 and  December 31, 2019, in an amount not to exceed $250,000 for each such Fiscal Quarter.  For purposes of  calculating the financial covenants set forth in Section 8.8 solely with respect to the Fiscal Quarters of the  Borrower ending March 31, 2019, June 30, 2019 and September 30, 2019, Consolidated EBITDA shall be  determined for the  Fiscal Quarter of the  Borrower  ending (A)  March  31,  2019 by  multiplying the  Consolidated EBITDA for such  Fiscal Quarter by  four (4), (B)  June  30,  2019 by  multiplying the  Consolidated EBITDA for such  Fiscal Quarter plus the  Consolidated EBITDA for the  immediately  preceding  Fiscal Quarter by two (2) and (C)  September  30,  2019 by  multiplying the  Consolidated  EBITDA for such Fiscal Quarter plus the Consolidated EBITDA for the immediately preceding two (2)  Fiscal Quarters by four-thirds (4/3).        “Consolidated Excess Cash Flow” means, for any period for the Borrower and its Subsidiaries, an amount  equal  to  the  sum,  without  duplication,  of  (a)  Consolidated  EBITDA  minus  (b)  Consolidated Capital Expenditures paid in cash, minus (c) the cash portion of Consolidated Interest Charges minus (d) Consolidated Taxes minus (e) Consolidated Scheduled Funded Debt Payments minus (f) the Consolidated Working Capital Adjustment, in each case on a consolidated basis determined in accordance with GAAP.         “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a)  Consolidated  EBITDA  minus  (i)  Consolidated  Taxes  minus  (ii)  Consolidated  Maintenance  Capital Expenditures,  in  each  case,  for  the  period  of  the  four  Fiscal  Quarters  most  recently  ended, to (b) Consolidated Fixed Charges for the period of the four Fiscal Quarters most recently ended.; provided that,  for  purposes of this clause (b) and  determining the  Consolidated  Scheduled  Funded Debt Payments  component of  Consolidated Fixed  Charges, the sum of all  scheduled payments of principal on  Consolidated Funded Debt shall be deemed to be $3,000,000 per annum at all times prior to and including  the Fiscal Quarter of the Borrower ending June 30, 2019.        “Consolidated Fixed Charges” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) the cash portion of Consolidated Interest Charges for  such  period  plus  (b)  Consolidated  Scheduled  Funded  Debt  Payments  for  such  period  plus (c) Restricted Payments made during such period, all as determined in accordance with GAAP.         “Consolidated  Funded Debt”  means  Funded  Debt  of  the  Borrower  and  its  Subsidiaries  on  a consolidated basis determined in accordance with GAAP.         “Consolidated Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection  with  the  deferred  purchase  price  of  assets,  in  each case  to  the  extent  treated  as  interest  in accordance with GAAP, plus (b) the portion of rent expense with respect to such period under Capital Leases  that  is  treated  as  interest  in  accordance  with  GAAP  plus  (c)  the  implied  interest  component  of Synthetic Leases with respect to such period.        “Consolidated  Leverage  Ratio”  means,  as  of  any  date  of  determination,  the  ratio  of  (a)  (i) Consolidated Funded Debt as of such date minus (ii) unrestricted cash in excess of $1,000,000 but not in excess  of  $10,000,000  in  the  aggregate  to  (b)  Consolidated  EBITDA  for  the  period  of  the  four  Fiscal Quarters most recently ended.                                              9 





 






      “Consolidated Maintenance Capital Expenditures” means, for any period, the aggregate amount of  Consolidated  Capital  Expenditures  expended  by  the  Credit  Parties  and  their  Subsidiaries  on  a consolidated basis during such period for the maintenance or replacement of their existing capital assets, in  each  case  as  approved  by  the  Administrative  Agent, net of up to  $5,000,000 of Net  Cash  Proceeds  received from Asset Sales for such period.        “Consolidated Net  Income”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries on  a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding extraordinary gains) for that period, as determined in accordance with GAAP.         “Consolidated Scheduled Funded Debt Payments” means for any period for the Borrower and its Subsidiaries  on  a  consolidated  basis,  the  sum  of  all  scheduled payments  of  principal  on  Consolidated Funded  Debt,  as  determined  in  accordance  with  GAAP.   For  purposes  of  this  definition,  “scheduled payments of principal” (a) shall be determined without giving effect to any reduction of such scheduled payments  resulting  from  the  application  of  any  voluntary  or  mandatory  prepayments  made  during  the applicable period, (b) shall be deemed to include the Attributable Principal Amount in respect of Capital Leases,  Securitization  Transactions  and  Synthetic  Leases  and  (c)  shall  not  include  any  voluntary prepayments or mandatory prepayments required pursuant to Section 2.11.        “Consolidated  Working  Capital”  means,  as  of  any  date  of  determination,  the  excess  of Consolidated Current Assets over Consolidated Current Liabilities.        “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the end of such period exceeds (or is less than) Consolidated Working Capital as of the beginning of such period.        “Consolidated  Taxes”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries on  a consolidated basis, the aggregate of all taxes, as determined paid in accordance with GAAPcash.        “Contractual Obligation” means, as applied to any Person, any provision of any Security issued by  that  Person  or  of  any  indenture,  mortgage,  deed  of  trust,  contract,  undertaking,  agreement  or  other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.         “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.        “Controlled Account” has the meaning set forth in Section 7.17.         “Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.        “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit 2.8.        “Credit Date” means the date of a Credit Extension.        “Credit  Document”  means  any  of  this  Agreement,  each  Note,  each  Issuer  Document, the Collateral  Documents,  any  Guarantor  Joinder  Agreement,  the  Fee Letter,  the  Fourth  Amendment  Fee Letter, any Auto Borrower Agreement, any document executed and delivered by the Borrower and/or any other Credit Party pursuant to which any Aggregate Revolving Commitments are increased pursuant to                                             10 





 






Section 2.1(d)(ii) or an additional Term Loan is established pursuant to Section 2.1(d)(iii), any documents or certificates executed by any Credit Party in favor of any Issuing Bank relating to Letters of Credit, and, to  the  extent  evidencing  or  securing  the  Obligations,  all  other  documents,  instruments  or  agreements executed and delivered by any Credit Party for the benefit of any Agent, any Issuing Bank or any Lender in  connection  herewith  or  therewith,  and  including  for  the  avoidance  of  doubt,  any  Guarantor  Joinder Agreement (but specifically excluding any Secured Swap Agreements and Secured Treasury Management Agreements).         “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.         “Credit Parties” means, collectively, the Borrower and each Guarantor.         “Debtor  Relief Laws”  means  the  Bankruptcy  Code,  and  all  other  liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,  or  similar  debtor  relief  laws  of  the  United  States  or  other  applicable  jurisdictions  from time to time in effect.         “Debt  Transaction”  means,  with  respect  to  the  Borrower  or  any  of  its  Subsidiaries,  any  sale, issuance, placement, assumption or guaranty of Funded Debt, whether or not evidenced by a promissory note or other written evidence of Indebtedness, except for Funded Debt permitted to be incurred pursuant to Section 8.1.        “Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.        “Default Rate” means an interest rate equal to (a) with respect to Obligations other than Adjusted LIBOR  Rate  Loans  (including  Base  Rate  Loans  referencing  the  LIBOR  Index  Rate)  and  the  Letter  of Credit Fee, the Base Rate plus the Applicable Margin, if any, applicable to such Loans plus two percent (2%)  per  annum,  (b)  with  respect  to  Adjusted  LIBOR  Rate  Loans, the Adjusted LIBOR Rate plus the Applicable Margin, if any, applicable to Adjusted LIBOR Rate Loans plus two percent (2%) per annum and (c) with respect to the Letter of Credit Fee, the Applicable Margin plus two percent (2%) per annum.         “Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3)  Business  Days  after  written  request  by  the  Administrative  Agent  or  the  Borrower,  to  confirm  in writing  to  the  Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,                                            11 





 






assignee  for  the  benefit  of  creditors or similar Person charged with reorganization or liquidation of its business  or  assets,  including  the  Federal  Deposit  Insurance  Corporation  or  any  other  state  or  federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long  as  such  ownership  interest  does  not  result  in  or  provide  such  Lender  with  immunity  from  the jurisdiction  of  courts  within  the  United  States  or  from  the  enforcement  of  judgments  or  writs  of attachment  on  its  assets  or  permit  such  Lender  (or  such  Governmental  Authority)  to  reject,  repudiate, disavow  or  disaffirm  any  contracts  or  agreements  made  with  such  Lender.   Any  determination  by  the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, each Swingline Lender and each Lender.         “Deposit Account Control Agreement” means an agreement, among a Credit Party, a depository institution, and the Collateral Agent, which agreement is in a form acceptable to the Collateral Agent and which provides the Collateral Agent with “control” (as such term is used in Article 9 of the UCC) over the  Controlled  Account  described  therein,  as  the  same  may  be  amended,  modified,  extended,  restated, replaced, or supplemented from time to time.        “Discharge” has the meaning set forth in section 1001(7) of OPA.        “DOC” means a document of compliance issued to an Operator in accordance with rule 13 of the ISM Code;         “Dollars” and the sign “$” mean the lawful money of the United States.        “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States, any state thereof or the District of Columbia.         “Earn Out Obligations” means, with respect to an Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price adjustments, non-competition  and  consulting  agreements,  or  other  indemnity  obligations)  pursuant  to  the documentation  relating  to  such Acquisition.   The  amount  of  any Earn  Out  Obligations  at  the  time  of determination shall be the aggregate amount, if any, of such Earn Out Obligations that are required at such time under GAAP to be recognized as liabilities on the consolidated balance sheet of the Borrower.         “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.         “EEA Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland, Liechtenstein, and Norway.         “EEA Resolution Authority” means any public administrative authority or any person entrusted with  public  administrative  authority  of  any  EEA  Member  Country (including  any  delegee)  having responsibility for the resolution of any EEA Financial Institution.                                             12 





 






      “Eligible  Assignee”  means  any  Person  that  meets  the  requirements  to  be  an  assignee  under Section 11.5(b), subject to any consents and representations, if any as may be required therein.         “Environmental  Claim”  means  any  known  investigation,  written  notice,  notice  of  violation, written claim, action, suit, proceeding, written demand, abatement order or other written order or directive (conditional  or  otherwise),  by  any  Person  arising  (a)  pursuant to  or  in  connection  with  any  actual  or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to human health, safety, natural resources or the environment.        “Environmental  Permits”  means  all  permits,  licenses,  orders,  and  authorizations  which the Borrower  or  any  of  its  Subsidiaries  has  obtained  under  Environmental  Laws  in  connection  with  the Borrower’s or any such Subsidiary’s current Facilities or operations.        “Environmental Laws” means any and all current or future federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other written requirements of Governmental Authorities relating to (a)  any Hazardous Materials Activity;  (b)  the  generation,  use,  storage,  transportation  or  disposal  of  Hazardous  Materials;  or  (c) protection of human health and the environment from pollution, in any manner applicable to any Credit Party or any of its Subsidiaries or their respective Facilities.         “Environmental  Liability”  means  any  OPA  Liability  or  any  liability,  contingent  or  otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of  the  Borrower,  any  other  Credit  Party  or  any  of  their  respective  Subsidiaries  directly  or  indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which Borrower or any Subsidiary assumed liability with respect to any of the foregoing.         “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.        “Equity Transaction” means, with respect to the Borrower or any of its Subsidiaries, any issuance or sale by the Borrower or such Subsidiary of shares of its Equity Interests, other than an issuance (a) to the  Borrower  or  any  of  its  wholly-owned  Subsidiaries,  (b)  in  connection  with  a  conversion  of  debt securities  to  equity,  (c)  in  connection  with  the  exercise  by  a present  or  former  employee,  officer  or director  under  a  stock  incentive  plan,  stock  option  plan  or  other  equity-based  compensation  plan  or arrangement,  (d)  which  occurred  prior  to  the  Closing  Date,  or  (e)  in  connection  with  any  Permitted Acquisition or any capital expenditures permitted under this Agreement.         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended to the date hereof and from time to time hereafter, any successor statute, and the regulations thereunder.                                              13 





 






      “ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member.         “ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code), the failure to make by its due date any minimum required contribution or any required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make by its due date any required contribution to a Multiemployer  Plan;  (c)  the  provision  by  the  administrator  of  any  Pension  Plan  pursuant  to  Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal from any Pension Plan with two (2) or more contributing sponsors or the termination of any such Pension Plan, in either case resulting in material liability pursuant to  Section  4063  or  4064  of  ERISA;  (e)  the  institution  by  the  PBGC  of  proceedings  to  terminate  any Pension Plan, or the occurrence of any event or condition reasonably likely to constitute grounds under ERISA  for  the  termination  of,  or  the  appointment  of  a  trustee to administer, any Pension Plan; (f) the imposition of liability pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA, each case reasonably likely to result in material liability; (g) the withdrawal of any  Credit  Party,  any  of  its  Subsidiaries  or  any  of  their  respective  ERISA  Affiliates  in  a  complete  or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if such withdrawal is reasonably likely to result in material liability, or the receipt by any Credit Party,  any  of  its  Subsidiaries  or  any  of  their  respective  ERISA  Affiliates  of  notice  from  any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it is in “critical” or “endangered” status within the meaning of Section 103(f)(2)(G) or ERISA, or that  it  intends  to  terminate  or  has  terminated  under  Section  4041A  or  4042  of  ERISA,  if  such reorganization,  insolvency  or  termination  is  reasonably  likely to  result  in  material  liability;  (h)  the imposition of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Pension Plan if such fines, penalties, taxes or related charges are reasonably likely to result in material liability; (i) the assertion  of  a  material  claim  (other  than  routine  claims  for  benefits  and  funding  obligations  in  the ordinary  course)  against  any  Pension  Plan  other  than  a  Multiemployer  Plan  or  the  assets  thereof,  or against any Person in connection with any Pension Plan such Person sponsors or maintains reasonably likely  to  result  in  material  liability;  (j)  receipt  from  the  Internal  Revenue  Service  of  a  final  written determination  of  the  failure  of any  Pension  Plan  intended  to  be  qualified  under  Section  401(a)  of  the Internal Revenue Code to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (k) the imposition of a lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to Section 303(k) or 4068 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.         “Event of Default” means each of the conditions or events set forth in Section 9.1.                                             14 





 






      “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.         “Excluded Property” means, with respect to the Borrower and each other Credit Party, including any Person that becomes a Credit Party after the Closing Date as contemplated by Section 7.14, (a) any disbursement deposit account the funds in which are used solely for the payment of salaries and wages, employee benefits, workers’ compensation and similar expenses, (b) any owned or leased real or personal property  which  is  located  outside  of  the  United  States  having  a  fair  market  value  not  in  excess  of $500,000, (c) any personal property (including, without limitation, motor vehicles)  in respect of which perfection  of  a  Lien  is not (i) governed by the UCC, (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office or (iii) effected by retention of certificate of title to vehicles or trailers and/or appropriate evidence of the Lien being filed with the applicable jurisdiction’s department of motor vehicles or other Governmental Authority,  unless  reasonably  requested  by  the  Administrative  Agent  or  the  Required  Lenders,  (d)  the Equity Interests of any direct Foreign Subsidiary of the Borrower or any other Credit Party  to the extent not required to be pledged to secure the Obligations pursuant to Section 7.12(a), (e) any property which, subject to the terms of Section 8.3, is subject to a Lien of the type described in Section 8.2(m) pursuant to documents  which  prohibit  the  Credit  Party  from  granting  any  other  Liens  in  such  property,  (f)  any property to the extent that the grant of a security interest therein would violate Applicable Laws, require a consent not obtained of any Governmental Authority, or constitute a breach of or default under, or result in  the  termination  of  or  require  a  consent  not  obtained  under, any  contract,  lease,  license  or  other agreement evidencing or giving rise to such property, or result in the invalidation thereof or provide any party thereto with a right of termination (other than to the extent that any such term would be rendered ineffective  pursuant  to  Section  9-406,  9-407,  9-408  or  9-409  of the applicable UCC or any other Applicable Law or principles of equity), (g) any certificates, licenses and other authorizations issued by any Governmental Authority to the extent that Applicable Laws prohibit the granting of a security interest therein, (h) all vehicles, (i) all Real Estate Assets, subject to Section 7.11, (j) proceeds and products of any  and  all  of  the  foregoing  excluded  property  described  in  clauses (a)  through  (i)  above  only  to  the extent such proceeds and products would constitute property or assets of the type described in clauses (a) through (i) above; provided, however, that the security interest granted to the Collateral Agent under the Pledge Agreement and the Security Agreement or any other Credit Document shall attach immediately to any asset of any Pledgor (as defined in the Pledge Agreement) and any Obligor (as defined in the Security Agreement)  at  such  time  as  such  asset  ceases  to  meet  any  of  the  criteria  for  “Excluded  Property” described in any of the foregoing clauses (a) through (i) above.        “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to  the  extent  that,  all  or  a  portion  of  the  Guaranty  of  such  Guarantor  of,  or  the  grant  under  a  Credit Document  by  such  Guarantor  of  a  security  interest  to  secure, such Swap Obligation (or any guarantee thereof)  is  or  becomes  illegal  under  the  Commodity  Exchange  Act  (or  the  application  or  official interpretation  thereof)  by  virtue  of  such  Guarantor’s  failure  for  any  reason  to  constitute  an  “eligible contract  participant”  as  defined  in  the  Commodity  Exchange  Act (determined  after  giving  effect  to Section 4.8  hereof  and  any  and  all  guarantees  of  such  Guarantor’s  Swap  Obligations  by  other  Credit Parties)  at  the  time  the  Guaranty  of  such  Guarantor,  or grant by such Guarantor of a security interest, becomes  effective  with  respect  to  such  Swap  Obligation.   If  a  Swap  Obligation  arises  under  a  Master Agreement governing more than one Swap Agreement, such exclusion shall apply only to the portion of such  Swap  Obligation  that  is  attributable  to  Swap  Agreements  for  which  such  Guaranty  or  security interest 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                                             15 





 






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 or Commitment pursuant to a law in effect on the date on which (i) such  Lender  acquires  such  interest  in  the  Loan  or  Commitment  (other  than  pursuant  to  an  assignment request by the Borrower under Section 2.17) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.3, amounts with respect to such Taxes were payable either to such  Lender’s  assignor  immediately  before  such  Lender  became  a party  hereto  or  to  such  Lender immediately  before  it  changed  its  lending  office,  (c)  Taxes  attributable  to  such  Recipient’s  failure  to comply with Section 3.3(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.        “Existing Credit Agreement” means that certain Credit Agreement dated as of June 25, 2012, as amended, by and among the Borrower, the lenders from time to time party thereto and Wells Fargo Bank, National Association as administrative agent.         “Facility” means any real property including all buildings, fixtures or other improvements located on such real property now, hereafter or heretofore owned, leased, operated or used by the Borrower or any of its Subsidiaries or any of their respective predecessors.         “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.         “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher one one-hundredth of one percent (1/100 of 1%)) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Regions Bank or any other Lender selected by the Administrative Agent on such day on such transactions as determined by the Administrative Agent.         “Fee  Letter”  means  that  certain  letter  agreement  dated  July  12,  2015  among  the  Borrower, Regions Bank and Regions Capital Markets, a division of Regions Bank.         “Fifth  Amendment”  means that  certain  Fifth  Amendment to Credit  Agreement  dated as of the  Fifth Amendment Effective Date, by and among the Borrower, the other Credit Parties party thereto, the  Lenders party thereto and Agent.         “Fifth Amendment EBITDA Addbacks” means the addbacks set forth in clauses (e) and (f) of the  definition of Consolidated EBITDA, which shall include, for the avoidance of doubt, the proviso set forth  in such clause (e).         “Fifth Amendment Effective Date” means March 21, 2019.         “Fifth Amendment Fee Letter” means that certain letter agreement dated March 8, 2019 among  the Borrower, Regions Bank and Regions Capital Markets, a division of Regions Bank.                                             16 





 






      “Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of the Borrower that such financial statements  fairly  present,  in  all  material  respects,  the  financial  condition  of  the  Borrower  and  its Subsidiaries  as  at  the  dates  indicated  and  the  results  of  their  operations  and  their  cash  flows  for  the periods indicated, subject to changes resulting from audit and normal year-end adjustments.         “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.         “Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on December 31 of each calendar year.         “Fleet Mortgage” means as defined in Section 5.1(f)(i).        “Flood Hazard Property” means any Real Estate Asset subject to a mortgage or deed of trust in favor  of  the  Collateral  Agent,  for  the  benefit  of  the  holders  of  the  Obligations,  and  located  in  an  area designated  by  the  Federal  Emergency  Management  Agency as(or any  successor  agency) as a “special  flood hazard area” or having special flood or mud slide hazards.         “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.        “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.         “Fourth Amendment” means that certain Fourth Amendment to Credit Agreement dated as of the Fourth Amendment Effective Date, by and among the Borrower, the other Credit Parties party thereto, the Lenders party thereto and Agent.         “Fourth Amendment Effective Date” means July 31, 2018.         “Fourth Amendment Fee Letter” means that certain letter agreement dated July 6, 2018 among the Borrower, Regions Bank and Regions Capital Markets, a division of Regions Bank.         “Fourth Amendment Reallocation Transaction” means as defined in Section 2.1(b)(i).         “Fourth  Amendment  Replacement and  Reallocation  Transactions”  means  as  defined  in  the recitals hereto.         “Fourth Amendment Replacement Facilities” means as defined in the recitals hereto.        “Fourth Amendment Replacement Term Loan” means as defined in Section 2.1(b)(ii).        “Fourth  Amendment  Replacement Term Loan  Commitment”  means,  for  each  Lender,  the commitment  of  such  Lender  to  make  a  portion  of  the  Fourth  Amendment  Replacement  Term  Loan hereunder.   The  Fourth  Amendment  Replacement  Term  Loan  Commitment  of  each  Lender  as  of  the Fourth Amendment Effective Date is set forth on Appendix A.  The aggregate principal amount of the Fourth  Amendment  Replacement  Term  Loan  Commitments  of  all  of  the  Lenders  as  in  effect  on  the Fourth Amendment Effective Date is SIXTY MILLION DOLLARS ($60,000,000).         “Fourth Amendment Replacement Term Loan Commitment Percentage” means, for each Lender providing  a  portion  of  the  Fourth  Amendment  Replacement  Term  Loan,  a  fraction  (expressed  as  a percentage  carried  to  the  ninth  decimal  place),  (a)  the  numerator  of  which  is  the outstanding principal                                             17 





 






amount  of  such  Lender’s  portion  of  such  Fourth  Amendment  Replacement  Term  Loan,  and  (b)  the denominator  of  which  is  the  aggregate  outstanding  principal  amount  of  such  Fourth  Amendment Replacement Term Loan.         “Fourth Amendment Replacement Transaction” means as defined in Section 2.1(b)(ii).         “Fronting  Exposure”  means,  at  any  time  there  is  a  Defaulting  Lender,  (a)  with  respect  to  any Issuing Bank, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit  Obligations  with  respect  to  Letters  of  Credit  issued  by such  Issuing  Bank  other  than  Letter  of Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other  Lenders  or  Cash  Collateralized  in  accordance  with  the  terms  hereof,  and  (b)  with  respect  to  the Swingline  Lender,  such  Defaulting  Lender’s  Revolving  Commitment  Percentage  of  outstanding Swingline  Loans  made  by  such  Swingline  Lender  other  than  Swingline  Loans  as  to  which  such Defaulting Lender’s participation obligation has been reallocated to other Lenders.        “Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing,  holding  or  otherwise  investing  in  commercial  loans and  similar extensions of credit in the ordinary course of its activities.        “Funded Debt”  means,  as  to  any  Person  at  a  particular  time,  without  duplication,  all  of  the following,  whether  or  not  included  as  indebtedness  or  liabilities  in  accordance  with  GAAP  (except  as provided in clauses (a)(ii) below):               (a)    all obligations for borrowed money, whether current or long-term (including the        Obligations hereunder), all obligations evidenced by bonds, debentures, notes, loan agreements or        other  similar  instruments  but  specifically  excluding  (i)  trade payables  incurred  in  the  ordinary        course of business and (ii) earn outs or other similar deferred or contingent obligations incurred in        connection with any Acquisition until such time as such earn outs or obligations are recognized as        a liability on the balance sheet of the Borrower and its Subsidiaries in accordance with GAAP;               (b)    all obligations in respect of the deferred purchase price of property or services        (other than trade accounts payable in the ordinary course of business and, in each case, not past        due  for  more  than  sixty  (60)  days  after  the  date  on  which  such trade  account  payable  was        created), including, without limitation, any Earn Out Obligations recognized as a liability on the        balance sheet of the Borrower and its Subsidiaries in accordance with GAAP;               (c)    all  obligations  under  letters  of  credit  (including  standby  and  commercial),        bankers’ acceptances and similar instruments (including bank guaranties);               (d)    the  Attributable  Principal  Amount  of  Capital  Leases,  Synthetic  Leases  and        Securitization Transactions;               (e)    all  preferred  stock  and  comparable  equity  interests  providing  for  mandatory        redemption, sinking fund or other like payments;               (f)    all Guarantees in respect of Funded Debt of another Person; and               (g)    Funded Debt of any partnership or joint venture or other similar entity in which        such  Person  is  a  general  partner  or  joint  venturer,  and,  as  such,  has  personal  liability  for  such        obligations, but only to the extent there is recourse to such Person for payment thereof.                                              18 





 






For  purposes  hereof,  the  amount  of  Funded  Debt  shall  be  determined  (x)  based  on  the  outstanding principal  amount  in  the  case  of  borrowed  money  indebtedness  under  clause (a)  and  purchase  money indebtedness and the deferred purchase obligations under clause (b), (y) based on the maximum amount available to be drawn in the case of letter of credit obligations and the other obligations under clause (c), and  (z)  based  on  the  amount  of  Funded  Debt  that  is  the  subject of  the  Guarantees  in  the  case  of Guarantees under clause (f).        “Funding Notice” means a notice substantially in the form of Exhibit 2.1.        “GAAP”  means,  subject  to  the  limitations  on  the  application  thereof set  forth  in  Section 1.2, accounting  principles  generally  accepted  in  the  United  States  in  effect  as  of  the  date  of  determination thereof.        “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.         “Governmental Authority” means the government of the United States or any other nation, or of any  political  subdivision  thereof,  whether  state  or  local,  and any  agency,  authority,  instrumentality, regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative,  judicial,  taxing, regulatory  or  administrative  powers  or  functions  of  or  pertaining  to  government  (including  any supra-national bodies such as the European Union or the European Central Bank and any group or body charged with setting financial accounting or regulatory capital rules or standards).        “Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and  including  any  obligation  of  such  Person,  direct  or  indirect,  (i)  to  purchase  or  pay  (or  advance  or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease  property,  securities  or  services  for  the  purpose  of  assuring  the  obligee  in  respect  of  such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level  of  income  or  cash  flow  of  the  primary  obligor  so  as  to  enable  the  primary  obligor  to  pay  such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such  Person  securing  any  Indebtedness  or  other  obligation  of  any  other  Person,  whether  or  not  such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be  an  amount  equal  to  the  stated  or  determinable  amount  of  the related  primary  obligation,  or  portion thereof,  in  respect  of  which  such  Guarantee  is  made  or,  if  not stated  or  determinable,  the  maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.         “Guaranteed Obligations” means as defined in Section 4.1.        “Guarantor Joinder Agreement” means a guarantor joinder agreement substantially in the form of Exhibit 7.14 delivered by a Subsidiary of the Borrower pursuant to Section 7.14.                                              19 





 






      “Guarantors” means (a) each Person identified as a “Guarantor” on the signature pages hereto, (b) each other Person that joins as a Guarantor pursuant to Section 7.14, (c) with respect to (i) Secured Swap Obligations,  (ii)  Secured  Treasury  Management  Obligations,  and (iii)  Swap  Obligations  of  a  Specified Credit Party (determined before giving effect to Sections 4.1 and 4.8) under the Guaranty hereunder, the Borrower, and (d) their successors and permitted assigns.        “Guaranty” means the Guarantee made by the Guarantors in favor of the Administrative Agent, the Lenders and the other holders of the Obligations pursuant to Section 4.         “Hazardous  Materials”  means  any  hazardous  substances  defined  by  the  Comprehensive Environmental  Response  Compensation  and  Liability  Act,  42  USCA 9601,  et.  seq.,  as  amended (“CERCLA”),  including  any  hazardous  waste  as  defined  under  40  C.F.R.  Parts  260-270,  gasoline  or petroleum (including crude oil or any fraction thereof), asbestos or polychlorinated biphenyls.         “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence  involving  any  Hazardous  Materials,  including  the  use,  manufacture,  possession,  storage, holding,  presence,  existence,  location,  Release,  threatened  Release,  discharge,  placement,  generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.         “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under Applicable Laws relating to any Lender which are currently in effect or, to the extent allowed under such Applicable Laws, which may hereafter be  in  effect  and  which  allow  a  higher  maximum  nonusurious  interest  rate  than  Applicable  Laws  now allow.         “Indebtedness”  means,  as  to  any  Person  at  a  particular  time,  without  duplication,  all  of  the following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)    all Funded Debt;               (b)    net obligations under any Swap Agreement;               (c)    all Guarantees in respect of Indebtedness of another Person; and               (d)    all Indebtedness of the types referred to in clauses (a) through (c) above of any       partnership  or  joint  venture  (other  than  a  joint  venture  that  is  itself  a  corporation  or  limited       liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer,       unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.  For purposes hereof, the amount of Indebtedness shall be determined based on Swap Termination Value in the case of net obligations under any Swap Agreement under clause (c).        “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.        “Indemnitee” means as defined in Section 11.2(b).        “Index Rate” means, for any Index Rate Determination Date with respect to any Base Rate Loans determined  by  reference  to  the  Index  Rate,  the  rate  per  annum  (rounded  upward  to  the  next  whole                                             20 





 






multiple  of  one  sixteenth  of  one  percent  (1/16  of  1%))  equal  to  (a)  the  LIBOR  or  a  comparable  or successor  rate,  which  rate  is  approved  by  the  Administrative  Agent,  as  published  on  the  applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) for deposits with a term equivalent to one (1) month in Dollars, determined as of approximately 11:00 a.m. (London, England time) two (2) Business Days prior to such Index Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded upward to the next whole multiple of one sixteenth of one percent (1/16 of 1%)) equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other  service  which  displays  an  average  settlement  rate  for  deposits  with  a  term  equivalent  to  one  (1) month in Dollars, determined as of approximately 11:00 a.m. (London, England time) two (2) Business Days prior to such Index Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum (rounded upward to the next whole multiple of one sixteenth of one percent (1/16 of 1%)) equal to quotation rate (or the arithmetic mean of rates) offered to first class banks in the London interbank market for deposits in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan of Regions Bank or any other Lender selected by  the  Administrative  Agent,  for  which  the  Index  Rate  is  then  being  determined  with  maturities comparable to one (1) month as of approximately 11:00 a.m. (London, England time) two (2) Business Days  prior  to  such  Index  Rate  Determination  Date.   Notwithstanding  anything  contained  herein  to  the contrary, the Index Rate shall not be less than zero.         “Index Rate  Determination Date”  means  the  Closing  Date  and  the  first  Business  Day  of  each calendar  month  thereafter;  provided,  however,  that,  solely  for  purposes  of  the  definition  of Base Rate, Index Rate Determination Date means the date of determination of the Base Rate.        “Initial Revolving Credit Facility” means as defined in the recitals hereto.        “Initial Term Loan” means as defined in Section 2.1(b)(i).        “Initial Term Loan  Commitment”  means,  for  each  Lender,  the  commitment  of  such  Lender  to make a portion of the Initial Term Loan hereunder.  The Initial Term Loan Commitment of each Lender as of the Closing Date is set forth on Appendix A.  The aggregate principal amount of the Initial Term Loan  Commitments  of  all  of  the  Lenders  as  in  effect  on  the  Closing  Date  was  ONE  HUNDRED THIRTY-FIVE MILLION DOLLARS ($135,000,000).        “Initial Term Loan Commitment Percentage” means, for each Lender providing a portion of the Initial  Term  Loan,  a  fraction  (expressed  as  a  percentage  carried  to  the  ninth  decimal  place),  (a)  the numerator  of  which  is  the  outstanding  principal  amount  of  such Lender’s  portion  of  such  Initial Term Loan,  and  (b)  the  denominator  of  which  is  the  aggregate  outstanding  principal  amount  of  such  Initial Term Loan.        “Initial Term Loan Outstanding Amount” means as defined in the recitals hereto.         “Intellectual  Property” means  all  trademarks,  service  marks,  trade  names,  copyrights,  patents, patent rights, franchises related to intellectual property, licenses related to intellectual property and other intellectual property rights.         “Interest Payment Date” means with respect to (a) any Base Rate Loan and any Swingline Loan, the  last  Business  Day  of  each  calendar  quarter,  commencing  on  the  first  such  date  to  occur  after  the Closing Date and the final maturity date of such Loan; and (b) any Adjusted LIBOR Rate Loan, the last day of each Interest Period applicable to such Loan; provided, in the case of each Interest Period of longer                                             21 





 






than three (3) months “Interest Payment Date” shall also include each date that is three (3) months, or an integral multiple thereof, after the commencement of such Interest Period.        “Interest Period” means, in connection with an Adjusted LIBOR Rate Loan, an interest period of one (1), two (2), three (3) or six (6) months or, subject to availability to all applicable Lenders, twelve (12) months, as selected by the Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (a) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (i) if an Interest Period would otherwise expire on a day that is not a Business Day, such  Interest  Period  shall  expire on the next succeeding Business Day unless no further Business Day occurs  in  such  month,  in  which  case  such  Interest  Period  shall expire  on  the  immediately  preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) of this definition, end on the last Business Day of a calendar month; (iii)  no  Interest  Period  with  respect  to  any  Term  Loan  shall  extend  beyond  any  principal  amortization payment  date,  except  to  the  extent  that  the  portion  of  such  Loan  comprised  of  Adjusted  LIBOR  Rate Loans  that  is  expiring  prior  to  the  applicable  principal  amortization  payment  date  plus  the  portion comprised  of  Adjusted  LIBOR  Rate  Loans  equals  or  exceeds  the  principal  amortization  payment  then due; (iv) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date and (v) no Interest Period with respect to any Term Loan shall extend beyond any principal amortization payment date, except to the extent that the portion of such Term Loan  comprised  of  Adjusted  LIBOR  Rate  Loans  that  is  expiring  prior  to  the  applicable  principal amortization payment date plus the portion comprised of Base Rate Loans equals or exceeds the principal amortization payment then due.         “Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.         “Internal Revenue Code” means the Internal Revenue Code of 1986.        “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition  of  any  other  debt  or  equity  participation  or  interest  in,  another  Person,  including  any partnership  or  joint  venture  interest  in  such  other  Person  and any  arrangement  pursuant  to  which  the investor Guarantees Indebtedness of such other Person, or (c) an Acquisition.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.        “Involuntary  Disposition”  means  the  receipt  by  the  Borrower  or  any of its Subsidiaries of any cash insurance proceeds or condemnation awards payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of its Property.         “IRS” means the United States Internal Revenue Service.        “ISM  Code”  shall  mean  the  International  Safety  Management  Code  for  the  Safe  Operating  of Ships  and  for  Pollution  Prevention  constituted  pursuant  to  Resolution  A.741(18)  of  the  International Maritime  Organization  and  incorporated  into  the  Safety  of  Life at  Sea  Convention  and  includes  any amendments or extensions thereto and any regulation issued pursuant thereto.                                              22 





 






      “ISP”  means,  with  respect  to  any  Letter  of  Credit,  the  “International  Standby  Practices  1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).         “ISPS  Code”  shall  mean  the  International  Ship  and  Port  Facility  Code  adopted  by  the International Maritime Organization at a conference in December 2002 and amending Chapter XI of the Safety of Life at Sea Convention and includes any amendments or extensions thereto and any regulation issued pursuant thereto.         “ISSC” shall mean the International Ship Security Certificate issued pursuant to the ISPS Code.        “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit 2.3.        “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any Issuing Bank and the Borrower (or any Subsidiary) or in favor of such Issuing Bank and relating to such Letter of Credit.         “Issuing  Banks”  means  Regions  Bank  or  such  other  Lender that has consented to acting as an Issuing  Bank  and  has  been  designated  by  the  Borrower  as  such  and  approved  by  the  Administrative Agent, each in its capacity as issuer of Letters of Credit hereunder, together with its permitted successors and assigns in such capacity and “Issuing Bank” means any one of the foregoing.        “IT-Related  Projects”  means  projects  undertaken by the Credit  Parties  requiring the  implementation of new, or the replacement or improvement of existing, information technology systems  and  platforms,  including,  without  limitation,  with  respect to payroll and  accounting systems, and  with  respect to which such projects consultants having expertise in such information technology solutions have  been engaged to advise on and assist with such implementation and other related matters.        “Kinder  Morgan  Matter”  means the  agreement  between  East &  West  Jones  Placement  Areas,  LLC and  Kinder  Morgan  with  respect to which such Credit Party  agreed to  receive  Kinder  Morgan’s  dredging materials at a discounted rate and Kinder Morgan agreed to grant easement rights to such Credit  Party over certain property owned by Kinder Morgan.        “Leasehold Property” means any leasehold interest of the Borrower or any other Credit Party as lessee under any lease of real property, or any property right pursuant to a lease, easement, servitude or similar agreement, however termed, in each case now held or hereafter acquired.         “Lender”  means  each  financial  institution with  a  Term  Loan  Commitment or  a  Revolving Commitment, together with its successors and permitted assigns.  The initial Lenders are identified on the signature pages hereto and are set forth on Appendix A.        “Letter of Credit” means any letter of credit issued hereunder.         “Letter of Credit  Application”  means  an  application  and  agreement  for  the  issuance  or amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank.         “Letter of Credit Fees” means as defined in Section 2.10(b)(i).         “Letter of Credit  Borrowing”  means  any  Credit  Extension  resulting  from  a  drawing under any Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Loans.                                              23 





 






      “Letter of Credit Obligations” means, at any time, the sum of (a) the maximum amount available to  be  drawn  under  Letters  of  Credit  then  outstanding,  assuming compliance  with  all  requirements  for drawings referenced therein, plus (b) the aggregate amount of all drawings under Letters of Credit that have not been reimbursed by the Borrower, including Letter of Credit Borrowings.  For all purposes of this Agreement, (i) amounts available to be drawn under Letters of Credit will be calculated as provided in Section 1.3(i), and (ii) if a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.         “Letter of Credit Sublimit” means, as of any date of determination, the lesser of (a) TWENTY MILLION  DOLLARS  ($20,000,000)  and  (b)  the  aggregate  unused  amount  of  the  Revolving Commitments then in effect.         “LIBOR” means the London Interbank Offered Rate.         “LIBOR Index Rate” means, for any Index Rate Determination Date, the rate per annum obtained by  dividing  (a)  the  Index  Rate  by  (b)  an  amount  equal  to  (i)  one,  minus  (ii)  the  Applicable  Reserve Requirement.        “LIBOR Index Rate Loan” means Loans bearing interest based on the LIBOR Index Rate.         “LIBOR Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate or LIBOR Index Rate (including a Base Rate Loan referencing the LIBOR Index Rate), as applicable.        “Lien”  means  (a)  any  lien,  mortgage,  pledge,  assignment,  security  interest,  charge  or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other  title  retention  agreement,  and  any  lease  or  license  in  the  nature  thereof)  and  any  option,  trust  or other preferential arrangement having the practical effect of any of the foregoing, and (b) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.        “Limited Revolver Availability Amount” means as defined in Section 5.2(e).         “Loan” means any Revolving Loan, Swingline Loan or Term Loan, and the Base Rate Loans and Adjusted LIBOR Rate Loans comprising such Loans.        “Margin Stock”  means  as  defined  in  Regulation  U  of  the  Board  of  Governors  of  the  Federal Reserve System as in effect from time to time.         “Master Agreement” means as defined in the definition of “Swap Agreement”.         “Material  Acquisition”  means a  Permitted  Acquisition for which the  aggregate  consideration  (including,  without  limitation,  equity  consideration,  earn  out  obligations,  deferred  compensation,  non-competition arrangements and the amount of Indebtedness and other liabilities incurred or assumed  by the Credit Parties and their Subsidiaries) paid by the Credit Parties and their Subsidiaries is greater  than or equal to $25,000,000.        “Material Adverse Effect” means any effect, event, condition, action, omission, change or state of facts that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in, a material  adverse  effect  with  respect  to  (a)  the  business  operations,  properties,  assets,  or  financial condition of the Borrower and its Subsidiaries taken as a whole; (b) the ability of the Credit Parties, taken as  a  whole,  to  fully  and  timely  perform  the  Obligations;  (c)  the  legality,  validity,  binding  effect,  or                                             24 





 






enforceability against a Credit Party of any Credit Document to which it is a party; (d) the value of the whole or any material part of the Collateral or the priority of Liens in the whole or any material part of the Collateral in favor of the Collateral Agent for the holders of the Obligations; or (e) the rights, remedies and  benefits  available  to,  or  conferred  upon,  any  Agent  and  any  Lender  or  any  holder  of  Obligations under any Credit Document.         “Material  Contract”  means  any  Contractual  Obligation  to  which  the  Borrower  or  any  of  its Subsidiaries,  or  any  of  their  respective  assets,  are  bound  (other  than  those  evidenced  by  the  Credit Documents)  for  which  breach,  nonperformance,  cancellation  or  failure  to  renew  could  reasonably  be expected to have a Material Adverse Effect.         “Moody’s” means Moody’s Investor Services, Inc., together with its successors.         “Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport to grant to  the Collateral Agent, for the benefit of the holders of the Obligations, a security interest in the fee and  leasehold  real  property  interests  (including  with  respect to any  improvements and  fixtures) of the  Borrower or any other Credit Party in real property.        “Multiemployer Plan”  means  any  “multiemployer  plan”  as  defined  in  Section  3(37)  of ERISA which is sponsored, maintained or contributed to by, or required to be contributed to by, any Credit Party or any of its ERISA Affiliates or with respect to which any Credit Party or any of its ERISA Affiliates previously  sponsored,  maintained  or  contributed  to  or  was  required  to  contributed  to,  and  still  has liability.         “Net Cash Proceeds” means the aggregate proceeds paid in cash or Cash Equivalents received by the  Borrower  or  any  of  its  Subsidiaries  in  connection  with  any Asset  Sale,  Debt  Transaction,  Equity Transaction  or  Securitization  Transaction,  net  of  (a)  direct  costs  incurred  or  estimated  costs  for  which reserves are maintained, in connection therewith (including legal, accounting and investment banking fees and  expenses,  sales  commissions  and  underwriting  discounts);  (b)  estimated  taxes  paid  or  payable (including sales, use or other transactional taxes and any net marginal increase in income taxes) as a result thereof; and (c) the amount required to retire any Indebtedness secured by a Permitted Lien on the related property.   For  purposes  hereof,  “Net  Cash  Proceeds”  includes  any  cash  or  Cash  Equivalents  received upon the disposition of any non-cash consideration received by the Borrower or any of its Subsidiaries in any Asset Sale, Debt Transaction, Equity Transaction or Securitization Transaction.         “Non-Consenting Lender” means as defined in Section 2.17.         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.         “Note” means a Revolving Loan Note, a Swingline Note or a Term Loan Note.        “Notice” means a Funding Notice, an Issuance Notice or a Conversion/Continuation Notice.        “Obligations”  means  all  obligations,  indebtedness  and  other  liabilities  of every  nature  of  each Credit  Party  from  time  to  time  owed  to  the  Agents  (including  former  Agents),  any  Issuing  Bank,  the Lenders (including former Lenders in their capacity as such) or any of them, the Qualifying Swap Banks and the Qualifying Treasury Management Banks, under any Credit Document, Secured Swap Agreement or  Secured  Treasury  Management  Agreement,  together  with  all  renewals,  extensions,  modifications  or refinancings of any of the foregoing, whether for principal, interest (including interest which, but for the filing  of  a  petition  in  bankruptcy  with  respect  to  such  Credit Party,  would  have  accrued  on  any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related                                             25 





 






bankruptcy  proceeding),  reimbursement  of  amounts  drawn  under  Letters  of  Credit,  payments  for  early termination of Swap Agreements, fees, expenses, indemnification or otherwise; provided, however, that the “Obligations” of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.         “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.        “OPA” means the Oil Pollution Act of 1990, 33 U.S.C. ‘2701 et, seq., as amended from time to time.         “OPA Liability” means any liability for any Discharge or any substantial threat of a Discharge, as those terms are defined under OPA, and any liability for removal, removal costs and damages, as those terms are defined under OPA, by any Person or any environmental regulatory body having jurisdiction over the Borrower or any other Credit Party.         “Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any  limited  liability  company,  its  articles  of  organization,  certificate  of  formation  or  comparable documents, as amended, and its operating agreement, as amended.  In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.         “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 Credit Document, or sold or assigned an interest in any Loan or Credit 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 otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17).        “Outstanding Amount” means (a) with respect to Revolving Loans and Swingline Loans on any date,  the  aggregate  outstanding  principal  amount  thereof  after giving  effect  to  any  Borrowings  and prepayments or repayments of Revolving Loans and Swingline Loans, as the case may be, occurring on such  date;  (b)  with  respect  to  any  Letter  of  Credit  Obligations  on  any  date,  the  aggregate  outstanding amount of such Letter of Credit Obligations on such date after giving effect to any Credit Extension of a Letter  of  Credit  occurring  on  such  date  and  any  other  changes  in  the  amount  of  the  Letter  of  Credit Obligations as of such date, including as a result of any reimbursements by the Borrower of any drawing under any Letter of Credit; and (c) with respect to any Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any prepayments or repayments of such Term Loan on such date.        “Participant” means as defined in Section 11.5(d).         “Participant Register” means as defined in Section 11.5(d).                                             26 





 






      “Patriot Act” means as defined in Section 6.15(f).         “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.        “Pension Plan” means any “employee pension benefit plan” as defined in Section 3(2) of ERISA other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA and which is sponsored, maintained or contributed to by, or required to be contributed to by, any Credit Party or any of its ERISA Affiliates or with respect to which any Credit Party or any of its ERISA  Affiliates  previously sponsored, maintained or contributed to, or was required to contribute to, and still has liability.         “Permitted Acquisition” means any Acquisition that satisfies the following conditions:               (a)    the  Property  acquired  (or  the  Property  of  the  Person  acquired)  in  such        Acquisition is a business or is used or useful in a business permitted under Section 8.14;               (b)    in the case of an Acquisition of the Equity Interests, (i) the board of directors (or        other comparable governing body) of such other Person shall have approved the Acquisition and        (ii) such Person shall be organized and existing under the laws of any state of the United States or        the District of Columbia;               (c)    the aggregate consideration (including, without limitation, equity consideration,        earn  out  obligations,  deferred  compensation,  non-competition  arrangements  and  the  amount  of        Indebtedness and other liabilities incurred or assumed by the Credit Parties and their Subsidiaries)        paid  by  the  Credit  Parties  and  their  Subsidiaries  (A)  in  connection  with  all  such  Acquisitions        during any fiscal year shall not exceed $40,000,000 and (B) for all Acquisitions made during the        term of this Agreement shall not exceed $75,000,000;               (d)    immediately  after  giving  effect  to  such  Acquisition,  the  available  and        unencumbered (other than Liens in favor of the Collateral Agent under the Credit Documents and        Liens (including the right of set-off) in favor of a bank or other depository institution arising as a        matter  of  law  encumbering  deposits)  cash  and  Cash  Equivalents  of  the  Borrower  plus the       aggregate  amount  that  could  be  drawn  by  the  Borrower  under  the Aggregate  Revolving       Commitments shall not be less than $25,000,000 in the aggregate; and               (e) no Default or Event of Default shall exist and be continuing immediately before or       immediately after giving effect thereto, (ii) the representations and warranties made each of the       Credit Parties in each Credit Document shall be true and correct in all material respects as if made       on  the  date  of  such  Acquisition  (after  giving  effect  thereto)  except  to  the  extent  such       representations and warranties expressly relate to an earlier date, (iii) after giving effect thereto       on a Pro Forma Basis, (1) the Borrower shall be in compliance with the financial covenants set       forth in clauses (a) and (b) of Section 8.8 and (2) the Consolidated Leverage Ratio shall be at        least 0.25 to 1.00 less than the then-applicable Consolidated Leverage Ratio covenant level set        forth in  Section 8.8(a) (as the  same may be  adjusted  during a  Permitted  Acquisition  Increase        Period)(calculated without giving effect to the Fifth Amendment EBITDA Addbacks) shall not        exceed 2.00 to 1.00 for the two (2) consecutive Fiscal Quarters of the Borrower most recently        ended and (iv) at least five (5) Business Days prior to the consummation of such Acquisition, an       Authorized  Officer  of  the  Borrower  shall  provide  a  compliance  certificate,  in  form  and  detail       reasonably satisfactory to the Administrative Agent, affirming compliance with each of the items       set forth in clauses (a) through (f) hereof.;                                              27 





 






“Permitted Acquisition Increase Period” means, at the election of the Borrower, which election must be in  writing and delivered to provided, however, that without the prior written consent of the Administrative Agent prior to the  consummation of the  Material  Acquisition  with  respect to which a  Permitted  Acquisition Increase Period is being declared, the four consecutive Fiscal Quarter period following the  consummation of such  Material  Acquisition.and the  Required  Lenders in their  respective sole and  absolute discretion, no Permitted Acquisition shall be allowed during the period from and after the Fifth  Amendment Effective Date to and including September 30, 2019.        “Permitted Liens” means each of the Liens permitted pursuant to Section 8.2.         “Permitted  Refinancing”  means  any  extension,  renewal  or  replacement  of  any  existing Indebtedness so long as any such renewal, refinancing and extension of such Indebtedness (a) has market terms and conditions, (b) has an average life to maturity that is greater than that of the Indebtedness being extended, renewed or refinanced, (c) does not include an obligor that was not an obligor with respect to the  Indebtedness  being  extended,  renewed or refinanced, (d) remains subordinated, if the Indebtedness being  refinanced  or  extended  was subordinated  to  the  prior  payment  of  the  Obligations,  (e)  does  not exceed  in  a  principal  amount  the  Indebtedness  being  renewed,  extended  or  refinanced  plus  reasonable fees and expenses incurred in connection therewith, and (f) is not incurred, created or assumed, if any Default or Event of Default has occurred and continues to exist or would result therefrom.         “Permitted Third Party Bank” shall mean any bank or other financial institution with whom any Credit Party maintains a Controlled Account and with whom a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, has been executed.        “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.        “Platform” means as defined in Section 11.1(d).        “Pledge  Agreement”  means  the  pledge  agreement  dated  as  of  the  Closing  Date  given by the Credit Parties, as pledgors, to the Collateral Agent for the benefit of the holders of the Obligations (as defined therein), and any other pledge agreements that may be given by any Person pursuant to the terms hereof, in each case as the same may be amended and modified from time to time.        “Prime Rate” means the per annum rate which the Administrative Agent publicly announces from time to time to be its prime lending rate, as in effect from time to time.  The Administrative Agent’s prime lending  rate  is  a  reference  rate  and  does  not  necessarily  represent  the  lowest  or  best  rate  charged  to customers.         “Principal Office” means, for the Administrative Agent, the Swingline Lender and each Issuing Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office as it may from time to time designate in writing to the Borrower and each Lender.         “Pro Forma Basis” means, for purposes of calculating the financial covenants set forth in Section  8.8 other than the Consolidated Fixed Charge Coverage Ratio (including for purposes of determining the Applicable Margin), that any Asset Sale, Involuntary Disposition, Acquisition or Restricted Payment shall be deemed to have occurred as of the first day of the most recent four Fiscal Quarter period preceding the date of such transaction for which the Borrower was required to deliver financial statements pursuant to Section 7.1(a)  or  (b).   In  connection  with  the  foregoing,  (a)(i)  with  respect  to  any  Asset  Sale  or Involuntary Disposition, income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior  to  the  date  of  such  transaction  and  (ii)  with  respect  to any  Acquisition,  income  statement  items                                             28 





 






attributable  to  the  Person  or  property  acquired  shall  be  included  to  the  extent  relating  to  any  period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1 and (B) such items are supported by financial statements or other information satisfactory to the Administrative Agent and (b) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person or property acquired) in connection with such transaction (i) shall be deemed to have been incurred as of the first day of the applicable period and (ii) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.        “Property”  means  an  interest  of  any  kind  in  any  property  or  asset,  whether  real,  personal  or mixed, and whether tangible or intangible.         “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that, at the time the Guaranty (or grant of security interest, as applicable) becomes or would become effective with respect to such Swap Obligation, has total assets exceeding $10,000,000 or such other Credit Party as constitutes an “eligible contract participant” under the Commodity Exchange Act and which may cause another Person to qualify as an “eligible contract participant” with respect to such Swap Obligation at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.         “Qualifying Swap Bank” means (a) any of Regions Bank and its Affiliates, and (b) any Person that (i) at the time it enters into a Swap Agreement, is a Lender or an Affiliate of a Lender, or (ii) in the case of a Swap Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty  (30)  days  thereafter,  a  Lender  or  an  Affiliate  of  a  Lender,  and,  in  each  such  case,  shall  have provided  a  Secured  Party  Designation  Notice  to  the  Administrative  Agent  within  thirty  (30)  days  of entering  into  the  Swap  Agreement  or  otherwise  becoming  eligible  in  respect  thereof.   For  purposes hereof, the term “Lender” shall be deemed to include the Administrative Agent.         “Qualifying Treasury Management Bank” means (a) any of Regions Bank and its Affiliates, and (b) any Person that (A) at the time it enters into a Treasury Management Agreement, is a Lender or an Affiliate of a Lender, or (B) in the case of a Treasury Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender or an Affiliate of a Lender,  and,  in  each  such  case, shall  have  provided  a  Secured  Party  Designation  Notice  to  the Administrative  Agent  within  thirty  (30)  days  of  entering  into  the  Treasury Management Agreement or otherwise becoming eligible in respect thereof.  For purposes hereof, the term “Lender” shall be deemed to include the Administrative Agent.         “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by the Borrower or any of its Subsidiaries in any real property.         “Recipient”  means  (a)  the  Administrative  Agent,  (b)  any  Lender  and  (c)  any  Issuing  Bank,  as applicable.         “Refunded Swingline Loans” means as defined in Section 2.2(b)(iii).        “Register” means as defined in Section 11.5(c).         “Reimbursement Date” means as defined in Section 2.3(d).                                              29 





 






      “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.        “Release”  means  any  release,  spill,  emission,  leaking,  pumping,  pouring,  injection,  escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed  receptacles  containing  any  Hazardous  Material),  including  the  movement  of  any  Hazardous Material through the air, soil, surface water or groundwater.        “Removal Effective Date” means as defined in Section 10.6(b).         “Required  Lenders”  means,  as  of  any  date  of  determination,  Lenders  having  Total Credit Exposure  representing  more  than  fifty  percent  (50%)  of the  Total  Credit  Exposures  of  all  Lenders; provided that the that the Total Credit Exposure of any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.         “Reset Quarter” means as defined in Section 8.8(a).        “Resignation Effective Date” means as defined in Section 10.6(a).         “Restricted Payment”  means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or other property) with respect to any Equity Interests of the Borrower 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 or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing.        “Revolving  Commitment”  means  the  commitment  of  a  Lender  to  make  or  otherwise  fund  any Revolving  Loan  and  to  acquire  participations  in  Letters  of  Credit  and  Swingline  Loans  hereunder  and “Revolving  Commitments”  means  such  commitments  of  all  Lenders  in  the  aggregate.   The amount  of each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any increase, adjustment or reduction pursuant to the terms and conditions hereof. The  aggregate  amount  of  the  Revolving  Commitments  as  of  the  Fourth  Amendment  Effective  Date  is ONE HUNDRED MILLION DOLLARS ($100,000,000).        “Revolving  Commitment  Percentage”  means,  for  each  Lender,  a  fraction  (expressed  as  a percentage  carried  to  the  ninth  decimal  place),  the  numerator  of  which  is  such  Lender’s  Revolving Commitment and the denominator of which is the Aggregate Revolving Commitments.  The Revolving Commitment Percentages as of the Fourth Amendment Effective Date are set forth on Appendix A.        “Revolving Commitment Period” means the period from and including the Fourth Amendment Effective Date to the earlier of (a) (i) in the case of Revolving Loans and Swingline Loans, the Revolving Commitment Termination Date or (ii) in the case of the Letters of Credit, the expiration date thereof, or (b) in each case, the date on which the Revolving Commitments shall have been terminated as provided herein.         “Revolving Commitment Termination Date” means the earliest to occur of (a) July 31, 2023; (b) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.11(b); and (c) the date of the termination of the Revolving Commitments pursuant to Section 9.2.                                              30 





 






       “Revolving Credit  Exposure”  means,  as  to  any  Lender  at  any  time,  the  aggregate  principal amount  at  such  time  of  its  outstanding  Revolving  Loans  and  such  Lender’s  participation  in  Letter  of Credit Obligations and Swingline Loans at such time.         “Revolving Loan” means a Loan made by a Lender to the Borrower pursuant to Section 2.1(a).         “Revolving Loan Note”  means  a  promissory  note  in  the  form  of  Exhibit 2.5-1,  as  it  may  be amended, supplemented or otherwise modified from time to time.        “Revolving  Obligations”  means  the  Revolving  Loans,  the  Letter  of  Credit  Obligations  and  the Swingline Loans.         “Sale and Leaseback Transaction” means, with respect to the Borrower or any Subsidiary, any arrangement, directly or indirectly, with any Person (other than a Credit Party) whereby the Borrower or such Subsidiary shall sell or transfer any property, real or personal, used or useful in its business, whether now  owned  or  hereafter  acquired,  and  thereafter  rent  or  lease  such  property  or  other  property  that  it intends to use for substantially the same purpose or purposes as the property being sold or transferred.         “Sanctioned  Entity”  means  (a)  a  country  or  a  government  of  a  country,  (b)  an  agency  of  the government  of  a  country,  (c)  an  organization  directly  or  indirectly  controlled  by  a  country  or  its government, or (d) a person or entity resident in or determined to be resident in a country, that is subject to a country sanctions program administered and enforced by OFAC.         “Sanctioned  Person”  means  a  person  named  on  the  list  of  Specially  Designated  Nationals maintained by OFAC.         “SEC” means the United States Securities and Exchange Commission.         “Security Agreement” means the security agreement dated as of the Closing Date given by the Credit Parties, as grantors, to the Collateral Agent for the benefit of the holders of the Obligations (as defined therein), and any other security agreements that may be given by any Person pursuant to the terms hereof, in each case as the same may be amended and modified from time to time.        “S&P”  means  Standard  &  Poor’s  Financial  Services  LLC,  a  subsidiary of  The  McGraw  Hill Corporation, together with its successors.         “Secured Party Designation Notice” means a notice in the form of Exhibit 1.1 (or other writing in form  and  substance  satisfactory  to  the  Administrative  Agent)  from  a  Qualifying  Swap  Bank  or  a Qualifying Treasury Management Bank to the Administrative Agent that it holds Obligations entitled to share in the guaranties and collateral interests provided herein in respect of a Secured Swap Agreement or Secured Treasury Management Agreement, as appropriate.         “Secured Swap  Agreement”  means,  with  respect  to  any  Person,  any  agreement  entered  into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including, without limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person  and  one  or  more  counterparties,  any  foreign  currency exchange agreement, currency protection agreements,  commodity  purchase  or  option  agreements  or  other  interest  or  exchange  rate  hedging agreements.         “Secured Swap  Obligations”  means  all  obligations  owing  to  a  Qualifying  Swap  Bank  in connection with any Secured Swap Agreement including any and all cancellations, buy backs, reversals, terminations  or  assignments  of  any  Secured  Swap  Agreement,  any and  all  renewals,  extensions  and                                             31 





 






modifications  of  any  Secured  Swap  Agreement  and  any  and  all  substitutions  for  any  Secured  Swap Agreement, including all fees, costs, expenses and indemnities, whether primary, secondary, direct, fixed or  otherwise  (including  any  monetary  obligations  incurred  during  the  pendency  of  any  bankruptcy  or insolvency  proceedings,  regardless  of  whether  allowed  or  allowable  in  such  bankruptcy  or  insolvency proceedings), in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising.         “Secured  Treasury  Management  Agreement”  means  any  Treasury  Management  Agreement between  any  of  the  Borrower  and  its  Subsidiaries,  on  the  one  hand,  and  a  Qualifying  Treasury Management Bank, on the other hand.  For the avoidance of doubt, a holder of Obligations in respect of a Secured Treasury Management Agreement shall be subject to the provisions of Section 9.3 and 10.10.         “Secured  Treasury  Management  Obligations”  means  all  obligations  owing  to  a  Qualifying Treasury Management Bank under a Secured Treasury Management Agreement, including all fees, costs, expenses  and  indemnities,  whether  primary,  secondary,  direct,  fixed  or  otherwise  (including  any monetary  obligations  incurred  during  the  pendency  of  any  bankruptcy  or  insolvency  proceedings, regardless of whether allowed or allowable in such bankruptcy or insolvency proceedings), in each case, whether  direct  or  indirect  (including  those  acquired  by  assumption),  absolute  or  contingent,  due  or  to become due, now existing or hereafter arising.        “Securities”  means  any  stock,  shares,  partnership  interests,  limited  liability  company  interests, voting  trust  certificates,  certificates  of  interest  or  participation  in  any  profit-sharing  agreement  or arrangement  (e.g.,  stock  appreciation  rights),  options,  warrants,  bonds,  debentures,  notes,  or  other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments  commonly  known  as  “securities”  or  any  certificates of  interest,  shares  or  participations  in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.         “Securities Account Control Agreement” means an agreement, among a Credit Party, a securities intermediary, and the Collateral Agent, which agreement is in a form acceptable to the Collateral Agent and which provides the Collateral Agent with “control” (as such term is used in Articles 8 and 9 of the UCC)  over  the  securities  account(s)  described  therein,  as  the  same  may  be  as  amended,  modified, extended, restated, replaced, or supplemented from time to time.         “Securitization Transaction” means any financing or factoring or similar transaction (or series of such transactions) entered by the Borrower or any of its Subsidiaries pursuant to which the Borrower or such Subsidiary may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment (the “Securitization  Receivables”)  to  a  special  purpose  subsidiary  or  affiliate  (a  “Securitization  Subsidiary”)  or  any  other Person.        “Shipping Act”  means  the  Shipping  Act  of  1916,  as  amended  and  consolidated  at  46  U.S.C. §55101.        “SMC” means the safety management certificate issued in respect of a Vessel in accordance with Rule 13 of the ISM Code.        “Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date  (a)  such  Person  is  able  to  pay  its  debts  and  other  liabilities,  contingent  obligations  and  other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts                                             32 





 






and  liabilities  mature  in  their  ordinary  course,  (c)  such  Person  is  not  engaged  in  a  business  or  a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured.  In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.        “Specified Credit Party” means, any Credit Party that is, at the time on which the Guaranty (or grant  of  security  interest,  as  applicable)  becomes  effective  with  respect  to  a  Swap  Obligation,  a corporation, partnership, proprietorship, organization, trust or other entity that would not be an “eligible contract participant” under the Commodity Exchange Act at such time but for the effect of Section 4.8.        “Subsidiary”  means,  with  respect  to  any  Person,  any  corporation,  partnership,  limited  liability company, association, joint venture or other business entity of which more than fifty percent (50%) of the total voting power of Equity Interests entitled (without regard to the occurrence of any contingency) to vote  in  the  election  of  the  Person  or  Persons  (whether  directors,  managers,  trustees  or  other  Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person, or the accounts of which  would  be  consolidated  with  those  of  such  Person  in  its  consolidated  financial  statements  in accordance with GAAP, if such statements were prepared as of such date, or one or more of the other Subsidiaries  of  that  Person  or  a  combination  thereof;  provided,  in  determining  the  percentage  of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.  Unless otherwise provided, “Subsidiary” shall refer to a Subsidiary of the Borrower.         “Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions,  forward  rate  transactions,  commodity  swaps,  commodity  options,  forward  commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward  bond  or  forward  bond  price  or  forward  bond  index transactions, interest rate options, forward foreign  exchange  transactions, currency  swap  transactions,  cross-currency  rate  swap  transactions, currency  options,  cap  transactions,  floor  transactions,  collar transactions,  spot  contracts,  or  any  other similar  transactions  or  any  combination  of  any  of  the  foregoing  (including  any  options  or  warrants  to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement, and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other  master  agreement  (any  such  agreement  or  documentation,  together  with  any  related  schedules,  a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.         “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.         “Swap Provider” means any Person that is a party to a Swap Agreement with any of the Borrower or its Subsidiaries.                                              33 





 






      “Swap Termination Value” means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined  in  accordance  therewith,  such  termination  value(s)  and  (b)  for  any  date  prior  to  the  date referenced  in  clause  (a),  the  amount(s)  determined  as  the  mark-to-market  value(s)  for  such  Swap Agreements,  as  determined  based  upon  one  or  more  mid-market  or other  readily  available  quotations provided  by  any  recognized  dealer  in  such  Swap  Agreements  (which  may  include  a  Lender  or  any Affiliate of a Lender).        “Swingline Lender” means Regions Bank in its capacity as Swingline Lender hereunder, together with its permitted successors and assigns in such capacity.        “Swingline Loan”  means  a  Loan  made  by  the  Swingline  Lender  to  the  Borrower  pursuant  to Section 2.2.        “Swingline Note” means a promissory note in the form of Exhibit 2.5-2, as it may be amended, supplemented or otherwise modified from time to time.        “Swingline Rate” means the Base Rate plus the Applicable Margin applicable to Base Rate Loans (or with respect to any Swingline Loan advanced pursuant to an Auto Borrow Agreement, such other rate as separately agreed in writing between the Borrower and the Swingline Lender).         “Swingline  Sublimit”  means,  at  any  time  of  determination,  the  lesser  of  (a)  FIVE  MILLION DOLLARS ($5,000,000) and (b) the aggregate unused amount of Revolving Commitments then in effect.         “Synthetic Lease” means a lease transaction under which the parties intend that (a) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of Financial Accounting Standards No.  13,  as  amended  and  (b)  the  lessee  will  be  entitled  to  various  tax  and  other  benefits  ordinarily available to owners (as opposed to lessees) of like property.        “Target” means T.A.S. Holdings, LLC, a Delaware limited liability company.         “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including  backup  withholding),  assessments,  fees  or  other  charges  imposed  by  any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.         “Term Loan” means, as the context so requires, the Initial Term Loan, the Fourth Amendment Replacement Term Loan and/or any additional term loan established under Section 2.1(d)(iii).         “Term Loan  Commitment  Percentage”  means,  individually  or  collectively,  as  the  context requires, the Initial Term Loan Commitment Percentage and the Fourth Amendment Replacement Term Loan Commitment Percentage.         “Term Loan  Commitments”  means,  individually  or  collectively,  as  the  context  requires, the Initial Term Loan Commitment and the Fourth Amendment Replacement Term Loan Commitment.          “Term Loan Maturity Date” means July 31, 2023.         “Term Loan Note” means a promissory note in the form of Exhibit 2.5-3, as it may be amended, supplemented or otherwise modified from time to time.         “Title Policy” means as defined in Section 7.11(b)(iii).                                             34 





 






      “Total Credit  Exposure”  means,  as  to  any  Lender at any time, the Outstanding Amount of the Term Loans of such Lender at such time and the unused Revolving Commitments and Revolving Credit Exposure of such Lender at such time.         “Total  Revolving  Outstandings”  means  the  aggregate  Outstanding  Amount  of  all  Revolving Loans, all Swingline Loans and all Letter of Credit Obligations.        “Treasury Management Agreement” means any agreement governing the provision of treasury or cash  management  services,  including  deposit  accounts,  funds  transfer,  automated  clearinghouse, commercial  credit  cards,  purchasing  cards,  cardless  e-payable  services,  debit  cards,  stored  value  cards, zero  balance  accounts,  returned  check  concentration,  controlled  disbursement,  lockbox,  account reconciliation and reporting and trade finance services.         “Treasury  Management Bank”  means  any  Person  that  is  a  party  to  a  Treasury  Management Agreement with any of the Borrower or its Subsidiaries.         “Type of Loan” means a Base Rate Loan or a LIBOR Loan.         “UCC”  means  the  Uniform  Commercial  Code  (or  any  similar  or  equivalent  legislation)  as  in effect in the State of New York (or any other applicable jurisdiction, as the context may require).         “United States” or “U.S.” means the United States of America.         “U.S.  Person”  means  any  Person  that  is  a  “United  States  person”  as  defined in  Section 7701(a)(30) of the Internal Revenue Code.         “U.S. Tax Compliance Certificate” means as defined in Section 3.3(f).         “Vessels” means, collectively, each of the vessels set forth on Schedule 6.10(d) which shall be or become subject to the Collateral Agent’s Lien pursuant hereto and, individually, “Vessel” means any of them.         “Withholding Agent” means any Credit Party and 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 1.2  Accounting Terms.         (a)   Except  as  otherwise  expressly  provided  herein,  all  accounting  terms  not  otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.  Financial statements and other information required to be delivered by the Borrower to the Lenders pursuant to clauses (a), (b), (c) and (d) of Section 7.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation.  If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial covenant or requirement set forth in any Credit Document, and either the Borrower  or  the  Required  Lenders  shall  object  in  writing  to  determining  compliance  based  on  such change, then the Lenders and Borrower shall negotiate in good faith to amend such financial covenant, requirement or applicable defined terms to preserve the original intent thereof in light of such change to GAAP, provided that, until so amended such computations shall continue to be made on a basis consistent                                             35 





 






with the most recent financial statements delivered pursuant to clauses (a), (b), (c) and (d) of Section 7.1 as to which no such objection has been made.         (b)   Calculations.  Notwithstanding the above, the parties hereto acknowledge and agree that all  calculations  of  the  financial  covenants  in  Section 8.8  (other  than  the  Consolidated  Fixed  Charge Coverage Ratio), including for purposes of determining the Applicable Margin, shall be made on a Pro Forma Basis.         (d)   FASB ASC  825 and FASB ASC  470-20.   Notwithstanding  the  above,  for  purposes  of determining  compliance  with  any  covenant  (including  the  computation  of  any  financial  covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.         (e)   FASB ASC  842.   Notwithstanding the  above, for  purposes of  determining  compliance  with any covenant (including the computation of any financial covenant) contained herein, each lease that  is or would be classified and accounted for as (i) an operating lease or (ii) a Capital Lease, in each case,  under GAAP as in effect on December 1, 2018 (whether such lease was in effect on December 1, 2018 or  such lease is entered into after such date), shall be or shall continue to be classified and accounted for  under this Agreement as (x) an operating lease, with respect to the foregoing clause (i), and (y) a Capital  Lease, with respect to the foregoing clause (ii), in each case, notwithstanding the effect of FASB ASC  842.        Section 1.3   Rules of Interpretation.               (a)    The  definitions  of  terms  herein  shall  apply  equally  to  the  singular  and  plural        forms of the terms defined.  Whenever the context may require, any pronoun shall include the        corresponding  masculine,  feminine  and  neuter  forms.   The  words “include”,  “includes”  and        “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will”        shall be construed to have the same meaning and effect as the word “shall”.  Unless the context        requires  otherwise,  (i)  any  definition  of  or  reference  to  any  agreement,  instrument  or  other        document  shall  be  construed  as  referring  to  such  agreement,  instrument  or  other  document  as        from time to time amended, supplemented or otherwise modified (subject to any restrictions on        such  amendments,  supplements  or  modifications  set  forth  herein or  in  any  other  Credit        Document), (ii) any reference herein to any Person shall be construed to include such Person’s        successors and assigns, (iii) the words “hereto”, “herein,” “hereof” and “hereunder,” and words of        similar  import  when  used  in  any  Credit  Document,  shall  be  construed  to  refer  to  such  Credit        Document in its entirety and not to any particular provision hereof or thereof, (iv) all references        in a Credit Document to Sections, Exhibits, Appendices and Schedules shall be construed to refer        to Sections of, and Exhibits, Appendices and Schedules to, the Credit Document in which such        references appear, (v) any reference to any law shall include all statutory and regulatory rules,        regulations,  orders  and  provisions  consolidating,  amending,  replacing  or  interpreting  such  law        and any references to any law or regulation shall, unless otherwise specified, refer to such law or        regulation as amended, modified or supplemented from time to time, and (vi) the words “asset”        and “property” shall be construed to have the same meaning and effect and to refer to any and all        tangible  and  intangible  assets  and  properties,  including  cash, securities,  accounts  and  contract        rights.               (b)    The terms lease and license shall include sub-lease and sub-license.                                              36 





 






       (c)    All terms not specifically defined herein or by GAAP, which terms are defined in the UCC, shall have the meanings assigned to them in the UCC of the relevant jurisdiction, with the term “instrument” being that defined under Article 9 of the UCC of such jurisdiction.         (d)    Unless otherwise expressly indicated, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including”.         (e)    To the extent that any of the representations and warranties contained in Section  6 under this Agreement or in any of the other Credit Documents is qualified by “Material Adverse  Effect”, the qualifier “in all material respects” contained in Section 5.2(c) and the qualifier “in  any material respect” contained in Section 9.1(d) shall not apply.         (f)    Whenever the phrase “to the knowledge of” or words of similar import relating to  the knowledge of a Person are used herein or in any other Credit Document, such phrase shall  mean and refer to the actual knowledge of the Authorized Officers of such Person.         (g)    This  Agreement  and  the  other Credit  Documents  are  the  result  of  negotiation  among, and have been reviewed by counsel to, among others, the Administrative Agent and the  Credit  Parties,  and  are  the  product  of  discussions  and  negotiations  among  all  parties.  Accordingly, this Agreement and the other Credit Documents are not intended to be construed  against the Administrative Agent or any of the Lenders merely on account of the Administrative  Agent’s or any Lender’s involvement in the preparation of such documents.         (h)    Unless otherwise indicated, all references to a specific time shall be construed to  Eastern Standard Time or Eastern Daylight Savings Time, as the case may be.  Unless otherwise  expressly provided herein, all references to dollar amounts and “$” shall mean Dollars.         (i)    Unless otherwise specified herein, the amount of a Letter of Credit at any time  shall  be  deemed  to  be  the  stated  amount  of  such  Letter  of  Credit  in  effect  at  such  time  (after  giving effect to any permanent reduction in the stated amount of such Letter of Credit pursuant to  the terms of such Letter of Credit); provided, however, that with respect to any Letter of Credit  that, by its terms or the terms of any Issuer Document related thereto, provides for one or more  automatic  increases  in  the  stated  amount  thereof,  the  amount  of  such  Letter  of  Credit  shall  be  deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such  increases, whether or not such maximum stated amount is in effect at such time.                Section 2    LOANS AND LETTERS OF CREDIT  Section 2.1   Revolving Loans and Term Loans.         (a)    Revolving  Loans.   During  the  Revolving  Commitment  Period,  subject  to  the  terms  and  conditions  hereof, including,  without  limitation,  Section 5.2(e)  with  respect to the  Limited  Revolver  Availability  Amount, each  Lender  severally  agrees  to  make  revolving  loans (each  such  loan,  a  “Revolving Loan”)  to  the  Borrower  in  an  aggregate  amount  up  to  but  not exceeding such Lender’s Revolving Commitment; provided, that after giving effect to the making  of  any  Revolving  Loan,  (i)  the  Total  Revolving  Outstandings  shall  not  exceed  the  Aggregate  Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed  such Lender’s Revolving Commitment.  Amounts borrowed pursuant to this Section 2.1(a) may be  repaid  and  reborrowed  without  premium  or  penalty  (subject  to  Section 3.1(c))  during  the Revolving Commitment Period.  The Revolving Loans may consist of Base Rate Loans, Adjusted                                       37 





 






LIBOR  Rate  Loans,  or  a  combination  thereof,  as  the  Borrower  may  request.   Each  Lender’s Revolving  Commitment  shall  expire  on  the  Revolving  Commitment  Termination  Date  and  all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.         (b)    Term Loans.                (i)    Subject  to  the  terms  and  conditions  set  forth  herein,  the  Lenders  will        make advances of their respective Initial Term Loan Commitment Percentages of a term        loan  (the  “Initial Term Loan”)  in  an  amount  not  to  exceed  the  Initial  Term  Loan        Commitment, which Initial Term Loan will be disbursed to the Borrower in Dollars in a        single advance on the Closing Date.  The Initial Term Loan may consist of Base Rate        Loans,  Adjusted  LIBOR  Rate  Loans,  or  a  combination  thereof,  as the  Borrower  may        request.  Amounts repaid on the Initial Term Loan may not be reborrowed.  Immediately        prior  to  the  Fourth  Amendment  Effective  Date,  the  Initial  Term Loan  Outstanding        Amount  was  $72,000,000.  On  the  Fourth  Amendment  Effective  Date,  the  remaining        portion of the Initial Term Loan Outstanding Amount, after giving effect to the Fourth        Amendment  Replacement  Transaction  ($12,000,000),  will  be  reallocated  to  the        Revolving Commitments and be deemed to be a portion of the Outstanding Amount of        the Revolving Loans from and after the Fourth Amendment Effective Date, subject to any        Borrowings and prepayments or repayments of Revolving Loans and Swingline Loans, as        the  case  may  be,  occurring  after  the  Fourth  Amendment  Effective  Date  in  accordance        with the terms of this Agreement (the “Fourth Amendment Reallocation Transaction”).        For the avoidance of doubt, on the Fourth Amendment Effective Date, the Initial Term        Loan shall be deemed to be paid in full and discharged.                (ii)   Subject  to  the  terms  and  conditions  set  forth  herein,  the  Lenders  will        make  advances  of  their  respective  Fourth  Amendment  Replacement Term  Loan        Commitment  Percentages  of  a  term  loan  (the  “Fourth  Amendment  Replacement Term         Loan”)  in  an  amount  not  to  exceed  the  Fourth  Amendment  Replacement Term  Loan        Commitment, which Fourth Amendment Replacement Term Loan will be deemed to be        disbursed  to  the  Borrower  in  Dollars  in  a  single  advance  on  the  Fourth  Amendment        Effective  Date  and  will  replace  the  Initial  Term  Loan  through  a  “cashless  roll”  of  the        Initial  Term  Loan.   In  connection  with  the  deemed  disbursement of  the  Fourth        Amendment  Replacement  Term  Loan  on  the  Fourth  Amendment  Effective  Date,        $60,000,000  of  the  Initial  Term  Loan  Outstanding  Amount  will  be deemed to be the        Outstanding Amount of the Fourth Amendment Replacement Term Loan from and after        the Fourth Amendment Effective Date, subject to the prepayment or repayment of such        Outstanding Amount after the Fourth Amendment Effective Date in accordance with the        terms  of  this  Agreement  (the  “Fourth  Amendment  Replacement  Transaction”).  The        Fourth Amendment Replacement Term Loan may consist of Base Rate Loans, Adjusted        LIBOR Rate Loans, or a combination thereof, as the Borrower may request.  Amounts        repaid on the Fourth Amendment Term Loan may not be reborrowed.         (c)    Mechanics for Revolving Loans and Term Loans.                (i)    All Term Loans and, except pursuant to Section 2.2(b)(iii), all Revolving        Loans  shall  be  made  in  an  aggregate  minimum  amount  of  $1,000,000 and  integral        multiples of $250,000 in excess of that amount.                                        38 





 






              (ii)   Whenever the Borrower desires that the Lenders make a Term Loan or a        Revolving Loan, the Borrower shall deliver to the Administrative Agent a fully executed        Funding Notice no later than (x) 1:00 p.m. at least three (3) Business Days in advance of        the proposed Credit Date in the case of an Adjusted LIBOR Rate Loan and (y) 1:00 p.m.        at  least  one  (1)  Business  Day  in  advance  of  the  proposed  Credit  Date  in  the  case  of  a        Loan that is a Base Rate Loan.  Except as otherwise provided herein, any Funding Notice        for any Loans that are Adjusted LIBOR Rate Loans shall be irrevocable on and after the        related  Interest  Rate  Determination  Date,  and  the  Borrower  shall  be  bound  to  make  a        borrowing in accordance therewith.                (iii) Notice of receipt of each Funding Notice in respect of each Revolving        Loan or Term Loan, together with the amount of each Lender’s Revolving Commitment        Percentage or Term Loan Commitment Percentage thereof, respectively, if any, together        with the applicable interest rate, shall be provided by the Administrative Agent to each        applicable  Lender  by  telefacsimile  with  reasonable  promptness, but  (provided  the        Administrative Agent shall have received such notice by 1:00 p.m.) not later than 4:00        p.m.  on  the  same  day  as  the  Administrative  Agent’s  receipt  of  such  notice  from  the        Borrower.                (iv)  Each  Lender  shall  make  its  Revolving  Commitment  Percentage of  the        requested  Revolving  Loan  or  its  Term  Loan  Commitment  Percentage  of  the  requested        Term  Loan  available  to  the  Administrative  Agent  not  later  than 11:00  a.m.  on  the        applicable  Credit  Date  by  wire  transfer  of  same  day  funds  in  Dollars,  at  the        Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction or        waiver of the applicable conditions precedent specified herein, the Administrative Agent        shall  make  the  proceeds  of  such  Credit  Extension  available  to  the  Borrower  on  the        applicable Credit Date by causing an amount of same day funds in Dollars equal to the        proceeds of all Loans received by the Administrative Agent in connection with the Credit        Extension  from  the  Lenders  to  be  credited  to  the  account  of  the  Borrower  at  the        Administrative Agent’s Principal Office or such other account as may be designated in        writing to the Administrative Agent by the Borrower.         (d)    Increase in  Revolving  Commitments and  Establishment of  Additional Term  Loans.  The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Revolving Commitments (but not the Letter of Credit Sublimit or the Swingline Sublimit) and/or establish one or more additional Term Loans subject to the following:                (i)    the  sum  of  the  (A)  aggregate  principal  amount  of  any  increases  in  the        Revolving Commitments pursuant to this Section 2.1(d) plus (B) the aggregate principal        amount of any additional Term Loans pursuant to this Section 2.1(d) shall not to exceed        FORTY MILLION DOLLARS ($40,000,000);                (ii)   The Borrower may, at any time and from time to time, upon prior written        notice  by  the  Borrower  to  the  Administrative  Agent  increase  the  Aggregate  Revolving        Commitments  (but  not  the  Letter  of  Credit  Sublimit  or  the  Swingline  Sublimit)  with        additional  Revolving  Commitments  from  any  existing  Lender  with a  Revolving        Commitment  or  new  Revolving  Commitments  from  any  other  Person  selected  by  the        Borrower and reasonably acceptable to the Administrative Agent and the Issuing Bank;        provided that:                                        39 





 






                    (A)    any  such  increase  shall  be  in  a  minimum  principal  amount  of               $5,000,000 and in integral multiples of $1,000,000 in excess thereof;                      (B)    no  Default  or  Event  of  Default  shall  exist  before  and               immediately after giving effect to such increase;                      (C)    the Borrower shall be in compliance, on a Pro Forma Basis after               giving  effect  to  the  incurrence  of  any  such  increase  in  the  Revolving               Commitments,  with  the  financial  covenants  set  forth  in  clauses (a)  and  (b) of               Section 8.8,  recomputed  as  of  the  last  day  of  the  most  recently  ended  Fiscal               Quarter  of  the  Borrower  for  which  financial  statements  have  been  delivered               pursuant to Section 7.1;                      (D)    no existing Lender shall be under any obligation to increase its               Revolving Commitment and any such decision whether to increase its Revolving               Commitment shall be in such Lender’s sole and absolute discretion;                      (E)    (1)  any  new  Lender  providing  a  Revolving  Commitment  in               connection  with  any  increase  in  Aggregate  Revolving  Commitments  shall  join               this Agreement by executing such joinder documents reasonably required by the               Administrative  Agent  and/or  (2)  any  existing  Lender  electing  to  increase  its               Revolving Commitment shall have executed a commitment agreement reasonably               satisfactory to the Administrative Agent;                      (F)    any  such  increase  in  the  Revolving  Commitments  shall  be               subject  to  receipt  by  the  Administrative  Agent  of  a  certificate  of  the  Borrower               dated  as  of  the  date  of  such  increase  signed  by  an  Authorized  Officer  of  the               Borrower  (x)  certifying  and  attaching  the  resolutions  adopted  by  the  Borrower               and each Guarantor approving or consenting to such increase, and (y) certifying               that, before and after giving effect to such increase, (1) the representations and               warranties contained in Section 6 and the other Credit Documents are true and               correct in all material respects on and as of the date of such increase, 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 as of such               earlier  date,  and  except  that  for  purposes  of  this  Section 2.1(d),  the               representations and warranties contained in Section 6.7 shall be deemed to refer               to the most recent statements furnished pursuant to clauses (a) and (b) of Section                7.1, and (2) no Default or Event of Default exists; and                      (G)    to  the  extent  that  the  joinder  or  commitment  agreements               described  in  clause (E)  above  provide  for  an  applicable  margin  of,  and/or               commitment  fee  for,  additional  Revolving  Commitments  greater  than  the               Applicable  Margin  and/or  Commitment  Fee  with  respect  to  the  existing               Revolving  Commitments  at  such  time,  the  Applicable  Margin  and/or  the               Commitment Fee (as applicable) for the existing Revolving Commitments shall               be increased automatically (without the consent of Required Lenders) such that               the  Applicable  Margin  and/or  the  Commitment  Fee  (as  applicable) for such               existing  Revolving  Commitments  is  not  less  than  the  applicable margin  and/or               the commitment fee (as applicable) for such additional Revolving Commitments.         The Borrower shall prepay any Revolving Loans owing under this Agreement on the date of  any  such  increase  in  the  Revolving  Commitments  to  the  extent  necessary  to  keep  the                                      40 





 






outstanding Revolving Loans ratable with any revised Revolving Commitments arising from any nonratable increase in the Revolving Commitments under this Section.                (iii)  The Borrower may, at any time and from time to time, upon prior written        notice to the Administrative Agent, request the establishment of one or more additional        term loans from existing Lenders or other Persons selected by the Borrower (other than        the Borrower or any Affiliate or Subsidiary of the Borrower) and reasonably acceptable        to the Administrative Agent; provided, that:                      (A)    any  such  increase  shall  be  in  a  minimum  aggregate  principal               amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof;                      (B)    no  Default  or  Event  of  Default  shall  exist  before  and               immediately after giving effect to such additional Term Loan;                      (C)    the Borrower shall be in compliance, on a Pro Forma Basis after               giving  effect  to  the  incurrence  of  any  additional  Term  Loan  (and  after  giving               effect  on  a  Pro  Forma  Basis  to  any  Permitted  Acquisition  consummated               simultaneously  therewith),  with  the  financial  covenants  set  forth  in  clauses (a)               and (b) of Section 8.8, recomputed as of the last day of the most recently ended               Fiscal  Quarter  of  the  Borrower  for  which  financial  statements  have  been               delivered pursuant to Section 7.1;                      (D)    no  existing  Lender  shall  be under  any  obligation  to  provide a               portion of any additional Term Loan and any such decision whether to provide a               portion of any additional Term Loan shall be in such Lender’s sole and absolute               discretion;                      (E)    (1) any new Lender shall join this Agreement by executing such               joinder  documents  reasonably  required  by  the  Administrative  Agent  and/or  (2)               any existing Lender electing to provide a Term Loan Commitment with respect to               such  additional  Term  Loan  shall  have  executed  a  commitment  or  joinder               agreement reasonably satisfactory to the Administrative Agent;                      (F)    the establishment of any additional Term Loan shall be subject to               receipt by the Administrative Agent of a certificate of the Borrower dated as of               the  date  of  the  establishment  of  such  additional  Term  Loan  signed  by  an               Authorized Officer of the Borrower (x) certifying and attaching the resolutions               adopted  by  the  Borrower  and  each  Guarantor  approving  or  consenting  to  such               increase, and (y) certifying that, before and after giving effect to such increase,               (1) the representations and warranties contained in Section 6 and the other Credit               Documents are true and correct in all material respects on and as of the date of               such  increase,  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  as  of  such  earlier  date,  and  except  that  for purposes  of  this               Section 2.1(d), the representations and warranties contained in Section 6.7 shall               be deemed to refer to the most recent statements furnished pursuant to clauses (a)               and (b) of Section 7.1, and (2) no Default or Event of Default exists.                       (G)   the Applicable Margin and any other components of yield on any               additional  Term  Loan  shall  be  determined  by  the  Borrower  and  the  Lenders               thereunder; provided that in the event that the all-in yield for any additional Term                                      41 





 






              Loan  is  higher  than  the  all-in  yield  for  the  initial  Term  Loans  or  any  existing               additional  Term  Loan  (the  “Existing  Facilities”)  by  more  than  50  basis  points,               then the Applicable Margin for the applicable Existing Facility shall be increased               to the extent necessary so that such all-in yield is equal to the all-in yield for such               additional  Term  Loan  minus  50  basis  points;  provided,  further,  that  in               determining the interest rate margins applicable to the additional Term Loans and               the  applicable  Existing  Facility,  (x)  original  issue  discount  (“OID”)  or  upfront               fees (which shall be deemed to constitute like amounts of OID, with OID being               equated to interest based on assumed four-year life to maturity) payable by the               Borrower to the Lenders under the applicable Existing Facility or any additional               Term  Loan  in  the  initial  primary  syndication  thereof  shall  be  included  and  the               effect  of  any  and  all  interest  rate  floors  shall  be  included  and  (y)  customary               arrangement or commitment fees payable to the Lead Arranger (or its affiliates)               in connection with the applicable Existing Facility or to one or more arrangers               (or its affiliates) of any additional Term Loan, shall be excluded,                       (H)   the  maturity  date  for  any  additional  Term  Loan  shall  be  as  set               forth  in  the  commitment  or  joinder  agreement  executed  by  the  Borrower  in               connection therewith, provided that such date shall not be earlier than the Term               Loan Maturity Date or the maturity date of any other then existing Term Loan;               and                       (I)   the  scheduled  principal  amortization  payments  under  any               additional  Term  Loan  shall  be  as  set  forth  in  the  commitment  or  joinder               agreement executed by the Borrower in connection therewith; provided that the               weighted average life of any such additional Term Loan shall not be less than the               weighted life to maturity of either of (I) the Revolving Loans or (II) the Fourth               Amendment Replacement Term Loan and any other then existing Term Loan.   Section 2.2  Swingline Loans.         (a)    Swingline  Loans  Commitments.   During  the  Revolving  Commitment  Period, subject to the terms and conditions hereof, the Swingline Lender may, in its sole discretion, make Swingline Loans to the Borrower in the aggregate amount up to but not exceeding the Swingline Sublimit; provided, that after giving effect to the making of any Swingline Loan, in no event shall  (i) the Total Revolving Outstandings exceed the Aggregate Revolving Commitments and (ii) the  Revolving  Credit  Exposure  of  any  Lender  exceed  such  Lender’s  Revolving  Commitment.  Amounts  borrowed  pursuant  to  this  Section 2.2  may  be  repaid  and  reborrowed  during  the Revolving Commitment Period.  The Swingline Lender’s Revolving Commitment shall expire on the  Revolving  Commitment  Termination  Date  and  all  Swingline  Loans  and  all  other  amounts owed hereunder with respect to the Swingline Loans and the Revolving Commitments shall be paid in full no later than such date.         (b)    Borrowing Mechanics for Swingline  Loans.                (i)    Subject  to  clause (vi)  below,  whenever  the  Borrower  desires  that  the        Swingline  Lender  make  a  Swingline  Loan,  the  Borrower  shall  deliver  to  the        Administrative Agent a Funding Notice no later than 11:00 a.m. on the proposed Credit        Date.   Swingline  Loan  borrowings  hereunder  shall  be  made  in  minimum  amounts  of        $250,000 (or  the  remaining  available  amount  of  the  Swingline  Sublimit  if  less)  and  in        integral amounts of $50,000 in excess thereof.                                       42 





 






       (ii)   The  Swingline  Lender  shall  make  the  amount  of  its  Swingline Loan available to the Administrative Agent not later than 3:00 p.m. on the applicable Credit Date  by  wire  transfer  of  same  day  funds  in  Dollars,  at  the  Administrative  Agent’s Principal Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent  specified  herein,  the  Administrative  Agent  shall  make  the  proceeds  of  such Swingline Loans available to the Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swingline Loans received  by  the  Administrative  Agent  from  the  Swingline  Lender to  be  credited  to  the account of the Borrower at the Administrative Agent’s Principal Office, or to such other account as may be designated in writing to the Administrative Agent by the Borrower.         (iii)  With  respect  to  any  Swingline  Loans  which  have  not  been  voluntarily prepaid by the Borrower pursuant to Section 2.11, the Swingline Lender may at any time in its sole and absolute discretion, deliver to the Administrative Agent (with a copy to the Borrower),  no  later  than  11:00  a.m.  on  the  day  of  the  proposed Credit  Date,  a  notice (which shall be deemed to be a Funding Notice given by a Borrower) requesting that each Lender  holding  a  Revolving  Commitment  make  Revolving  Loans  that  are  Base  Rate Loans to the Borrower on such Credit Date in an amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given which the Swingline Lender requests Lenders to prepay.  Anything contained in this  Agreement  to  the  contrary  notwithstanding,  (1)  the  proceeds  of  such  Revolving Loans  made  by  the  Lenders  other  than  the  Swingline  Lender  shall  be  immediately delivered by the Administrative Agent to the Swingline Lender (and not to the Borrower) and applied to repay a corresponding portion of the Refunded Swingline Loans and (2) on  the  day  such  Revolving  Loans  are  made,  the  Swingline  Lender’s  Revolving Commitment  Percentage  of  the  Refunded  Swingline Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swingline Lender to the Borrower, and  such  portion  of  the  Swingline  Loans  deemed  to  be  so  paid  shall  no  longer  be outstanding as Swingline Loans and shall no longer be due under the Swingline Note of the  Swingline  Lender  but  shall  instead  constitute  part  of  the  Swingline  Lender’s outstanding Revolving Loans to the Borrower and shall be due under the Revolving Loan Note issued by the Borrower to the Swingline Lender.  The Borrower hereby authorizes the Administrative Agent and the Swingline Lender to charge the Borrower’s accounts with the Administrative Agent and the Swingline Lender (up to the amount available in each such account) in order to immediately pay the Swingline Lender the amount of the Refunded Swingline Loans to the extent the proceeds of such Revolving Loans made by the Lenders, including the Revolving Loans deemed to be made by the Swingline Lender, are insufficient to repay in full the Refunded Swingline Loans.  If any portion of any such amount paid (or deemed to be paid) to the Swingline Lender should be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by Section 2.14.         (iv)  If  for  any  reason  Revolving  Loans  are  not  made  pursuant  to Section  2.2(b)(iii) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect  of  any  outstanding  Swingline  Loans  on  or  before  the  third  Business  Day  after demand for payment thereof by the Swingline Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swingline Loans, and in an amount equal to its Revolving Commitment Percentage of the applicable unpaid amount together with accrued interest thereon.  On                                43 





 






the Business Day that notice is provided by the Swingline Lender (or by 11:00 a.m. on the  following  Business  Day  if  such  notice  is  provided  after  2:00  p.m.),  each  Lender holding a Revolving Commitment shall deliver to the Swingline Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Principal Office of the Swingline Lender.  In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of the Swingline Lender in form and substance reasonably satisfactory to the Swingline Lender.  In the event any Lender holding a Revolving Commitment fails to make  available  to  the  Swingline  Lender  the  amount  of  such  Lender’s  participation  as provided in this paragraph, the Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon for three (3) Business Days at the  rate  customarily  used  by  the  Swingline  Lender  for  the  correction  of  errors  among banks and thereafter at the Base Rate, as applicable.         (v)   Notwithstanding  anything  contained  herein  to  the  contrary,  (1)  each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to clause (iii) above and each Lender’s obligation to purchase a  participation  in  any  unpaid  Swingline  Loans  pursuant  to  the  immediately  preceding paragraph  shall  be  absolute  and  unconditional  and  shall  not  be affected  by  any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Credit Party or any other Person  for  any  reason  whatsoever;  (B)  the  occurrence  or  continuation  of  a  Default  or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Credit Party; (D) any breach of this Agreement  or  any  other  Credit  Document  by  any  party  thereto;  or (E) any other circumstance,  happening  or  event  whatsoever,  whether  or  not  similar  to  any  of  the foregoing; provided that such obligations of each Lender are subject to the condition that the Swingline Lender had not received prior notice from the Borrower or the Required Lenders  that  any  of  the  conditions  under  Section 5.2  to  the  making  of  the  applicable Refunded  Swingline  Loans  or  other  unpaid  Swingline  Loans  were  not  satisfied  at  the time such Refunded Swingline Loans or other unpaid Swingline Loans were made; and (2) the Swingline Lender shall not be obligated to make any Swingline Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 5.2 to the  making  of  such  Swingline  Loan  have  been  satisfied  or  waived  by  the  Required Lenders or (C) at a time when a Defaulting Lender exists, unless the Swingline Lender has  entered  into  arrangements  satisfactory  to  it  and  the  Borrower  to  eliminate  the Swingline  Lender’s  risk  with  respect  to  the  Defaulting  Lender’s  participation  in  such Swingline Loan, including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment  Percentage  of  the  outstanding  Swingline  Loans  in  a  manner  reasonably satisfactory to the Swingline Lender and the Administrative Agent.         (vi)  In order to facilitate the borrowing of Swingline Loans, the Borrower and the Swingline Lender may mutually agree to, and are hereby authorized to, enter into an auto borrow agreement in form and substance satisfactory to the Swingline Lender and the  Administrative  Agent  (the  “Auto  Borrow  Agreement”)  providing  for  the  automatic advance by the Swingline Lender of Swingline Loans under the conditions set forth in the Auto Borrow Agreement, subject to the conditions set forth herein.  At any time an Auto Borrow  Agreement  is  in  effect, advances  under  the  Auto  Borrow  Agreement  shall  be deemed  Swingline  Loans for all purposes hereof, except that Borrowings of Swingline Loans  under  the  Auto  Borrow  Agreement  shall  be  made  in  accordance  with  the  Auto                                44 





 






       Borrow  Agreement.  For purposes of determining the Total Revolving Outstandings at        any time during which an Auto Borrow Agreement is in effect, the Outstanding Amount        of  all  Swingline  Loans  shall  be  deemed  to  be  the  sum  of  the  Outstanding  Amount  of        Swingline Loans at such time plus the maximum amount available to be borrowed under        such Auto Borrow Agreement at such time.  Section 2.3   Issuances of Letters of Credit and Purchase of Participations Therein.         (a)    Letters of Credit.   During  the  Revolving  Commitment  Period,  subject  to  the  terms and conditions hereof, each Issuing Bank agrees to issue Letters of Credit for the account of  the Borrower or any of its Subsidiaries in the aggregate amount up to but not exceeding the Letter  of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the  stated amount of each Letter of Credit shall not be less than $50,000 or such lesser amount as is  acceptable to the applicable Issuing Bank; (iii) after giving effect to such issuance, in no event  shall (x) the Total Revolving Outstandings exceed the Aggregate Revolving Commitments,  (y)  the Revolving Credit Exposure of any Lender exceed such Lender’s Revolving Commitment and  (z) the Outstanding Amount of Letter of Credit Obligations exceed the Letter of Credit Sublimit;  and  (iv)  in  no  event  shall  any  standby  Letter  of  Credit  have  an  expiration  date  later  than  the  earlier of (1) seven (7) days prior to the Revolving Commitment Termination Date, and (2) the  date which is one (1) year from the date of issuance of such standby Letter of Credit.  Subject to  the foregoing (other than clause (iv)) any Issuing Bank may agree that a standby Letter of Credit will  automatically  be  extended  for  one  or  more  successive  periods  not  to  exceed  one  (1)  year each, unless such Issuing Bank elects not to extend for any such additional period; provided, no Issuing Bank shall extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time such Issuing Bank must elect to allow such extension; provided, further, in the event that any Lender is at such time a Defaulting Lender, unless  the  applicable  Issuing  Bank  has  entered  into  arrangements  satisfactory  to  such  Issuing Bank  (in  its  sole  discretion)  with  the  Borrower  or  such  Defaulting  Lender  to  eliminate  such Issuing  Bank’s  Fronting  Exposure  with  respect  to  such  Lender  (after  giving  effect  to  Section  2.16(a)(iv)  and  any  Cash  Collateral  provided  by  the  Defaulting  Lender),  including  by  Cash  Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding  Amount of the Letter of Credit Obligations in a manner reasonably satisfactory to Agents, such  Issuing Bank shall not be obligated to issue or extend any Letter of Credit hereunder.  The Issuing  Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via  the  Society  for  Worldwide  Interbank  Financial  Telecommunication  (“SWIFT”)  message  or  overnight  courier,  or  any  other  commercially  reasonable  means  of  communicating  with  a  beneficiary.         (b)    Notice of Issuance.  Whenever the Borrower desires the issuance of a Letter of Credit, the Borrower shall deliver to the Administrative Agent an Issuance Notice no later than 1:00  p.m.  at  least  three  (3)  Business  Days  or  such  shorter  period  as  may  be  agreed  to  by  any Issuing  Bank  in  any  particular  instance,  in  advance  of  the  proposed  date  of  issuance.   Upon satisfaction or waiver of the conditions set forth in Section 5.2, an Issuing Bank shall issue the requested Letter of Credit only in accordance such Issuing Bank’s standard operating procedures (including,  without  limitation,  the  delivery  by  the  Borrower  of  such  executed  documents  and information pertaining to such requested Letter of Credit, including any Issuer Documents, as the applicable  Issuing  Bank  or  the  Administrative  Agent  may  require).   Upon  the  issuance  of  any Letter of Credit or amendment or modification to a Letter of Credit, the applicable Issuing Bank shall promptly notify the Administrative Agent and each Lender of such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter                                       45 





 






of  Credit  and  the  amount  of  such  Lender’s  respective  participation  in  such  Letter  of  Credit pursuant to Section 2.3(e).         (c)    Responsibility of  Issuing  Banks  With  Respect to  Requests for  Drawings and  Payments.   In  determining  whether  to  honor  any  drawing  under  any  Letter of Credit by the  beneficiary  thereof,  the  applicable  Issuing  Bank  shall  be  responsible  only  to  examine  the  documents delivered under such Letter of Credit with reasonable care so as to ascertain whether  they  appear  on  their  face  to  be in  accordance  with  the  terms  and  conditions  of  such  Letter  of  Credit.  As between the Borrower and any Issuing Bank, the Borrower assumes all risks of the  acts  and  omissions  of,  or  misuse  of  the  Letters  of  Credit  issued  by  such  Issuing  Bank,  by  the  respective  beneficiaries  of  such  Letters  of  Credit.   In  furtherance  and  not  in  limitation  of  the  foregoing, no Issuing Bank shall be responsible for: (i) the form, validity, sufficiency, accuracy,  genuineness  or  legal  effect  of  any  document  submitted  by  any  party  in  connection  with  the  application for and issuance of any such Letter of Credit, even if it should in fact prove to be in  any  or  all  respects  invalid,  insufficient,  inaccurate,  fraudulent  or  forged;  (ii)  the  validity  or  sufficiency  of  any  instrument  transferring  or  assigning  or  purporting  to  transfer  or  assign  any  such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,  which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any  such Letter of Credit to comply fully with any conditions required in order to draw upon such  Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any  messages,  by  mail,  cable,  telegraph,  telex  or  otherwise,  whether  or  not  they  be  in  cipher;  (v)  errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise  of any document required in order to make a drawing under any such Letter of Credit or of the  proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the  proceeds  of  any  drawing  under  such  Letter  of  Credit;  or  (viii) any  consequences  arising  from  causes beyond the control of such Issuing Bank, including any Governmental Acts; none of the  above  shall  affect  or  impair,  or  prevent  the  vesting  of,  any  Issuing  Bank’s  rights  or  powers  hereunder.  Without limiting the foregoing and in furtherance thereof, any action taken or omitted  by  any  Issuing  Bank  under  or  in  connection  with  the  Letters  of Credit  or  any  documents  and  certificates  delivered  thereunder,  if  taken  or  omitted  in  good faith,  shall  not  give  rise  to  any  liability on the part of such Issuing Bank to any Credit Party.  Notwithstanding anything to the  contrary contained in this Section 2.3(c), the Borrower shall retain any and all rights it may have  against  any  Issuing  Bank  for  any  liability  arising  solely  out  of  the  gross  negligence  or  willful  misconduct of such Issuing Bank, as determined by a court of competent jurisdiction in a final,  non-appealable order.         (d)    Reimbursement by the  Borrower of  Amounts Drawn or Paid  Under  Letters of  Credit.  In the event an Issuing Bank has determined to honor a drawing under a Letter of Credit,  it shall immediately notify the Borrower and the Administrative Agent, and the Borrower shall  reimburse such Issuing Bank on or before the Business Day immediately following the date on  which such drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same  day funds equal to the amount of such honored drawing; provided, anything contained herein to the  contrary  notwithstanding,  (i)  unless  the  Borrower  shall  have  notified  the  Administrative Agent and the applicable Issuing Bank prior to 11:00 a.m. on the date such drawing is honored that  the  Borrower  intends  to  reimburse  such  Issuing  Bank  for  the  amount  of  such  honored drawing with funds other than the proceeds of Revolving Loans, the Borrower shall be deemed to have given a timely Funding Notice to the Administrative Agent requesting the Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal  to  the  amount  of  such  honored  drawing,  and  (ii)  subject  to  satisfaction  or  waiver  of  the conditions  specified  in  Section 5.2,  the  Lenders  shall,  on  the  Reimbursement  Date,  make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds                                       46 





 






of  which  shall  be  applied  directly  by  the  Administrative  Agent to  reimburse  the  applicable Issuing Bank for the amount of such honored drawing; and provided further, if for any reason proceeds  of  Revolving  Loans  are  not  received  by  the  applicable Issuing  Bank  on  the Reimbursement Date in an amount equal to the amount of such honored drawing, the Borrower shall  reimburse  such  Issuing  Bank,  on  demand,  in  an  amount  in  same  day  funds  equal  to  the excess  of  the  amount  of  such  honored  drawing  over  the  aggregate  amount  of  such  Revolving Loans, if any, which are so received.  Nothing in this Section 2.3(d) shall be deemed to relieve  any Lender from its obligation to make Revolving Loans on the terms and conditions set forth  herein, and the Borrower shall retain any and all rights it may have against any Lender resulting  from the failure of such Lender to make such Revolving Loans under this Section 2.3(d).         (e)    Lenders’ Purchase of Participations in Letters of Credit.  Immediately upon the issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from the applicable Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Revolving Commitment Percentage (with respect to the Revolving Commitments) of the maximum amount which is or at any time may become available to be drawn thereunder. In the event that the Borrower shall fail for any reason to reimburse an Issuing Bank as provided in  Section 2.3(d),  the  applicable  Issuing  Bank  shall  promptly  notify  each  Lender of the unreimbursed  amount  of  such  honored  drawing  and  of  such  Lender’s  respective  participation therein  based  on  such  Lender’s  Revolving  Commitment  Percentage.   Each  Lender  shall  make available to the applicable Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the office of such Issuing Bank specified in such notice, not later than 12:00 p.m. on the first Business Day (under the laws of the jurisdiction in which such office of such Issuing Bank is located) after the date notified by such Issuing Bank.  In the event that any Lender fails to make available to the applicable Issuing Bank on such Business Day the amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.3(e), such  Issuing Bank shall be entitled to recover such amount on demand from such Lender together with  interest thereon for three (3) Business Days at the rate customarily used by the applicable Issuing  Bank for the correction of errors among banks and thereafter at the Base Rate.  Nothing in this  Section 2.3(e) shall be deemed to prejudice the right of any Lender to recover from any Issuing Bank any amounts made available by such Lender to such Issuing Bank pursuant to this Section in the event that it is determined that the payment with respect to a Letter of Credit in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the  part  of  such  Issuing  Bank,  as  determined  by  a  court  of  competent  jurisdiction  in  a  final, non-appealable order.  In the event an Issuing Bank shall have been reimbursed by other Lenders pursuant  to  this  Section 2.3(e)  for  all  or  any  portion  of  any  drawing  honored  by  such  Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this Section 2.3(e) with respect to such honored drawing such Lender’s  Revolving  Commitment  Percentage  of  all  payments  subsequently  received  by  such Issuing Bank from the Borrower in reimbursement of such honored drawing when such payments are received.  Any such distribution shall be made to a Lender at its primary address set forth below its name on Appendix B or at such other address as such Lender may request.         (f)    Obligations  Absolute.   The  obligation  of  the  Borrower  to  reimburse  the applicable  Issuing  Bank  for  drawings  honored  under  the  Letters of  Credit  issued  by  it  and  to repay any Revolving Loans made by the Lenders pursuant to Section 2.3(d) and the obligations of the Lenders under Section 2.3(e) shall be unconditional and irrevocable and shall be paid strictly in  accordance  with  the  terms  hereof  under  all  circumstances  including  any  of  the  following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense (other than that such drawing has been repaid) or other right which                                       47 





 






the Borrower or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), any Issuing Bank, a  Lender  or  any  other  Person  or,  in  the  case  of  a  Lender,  against the Borrower, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement  therein being untrue or inaccurate in any respect; (iv) payment by any Issuing Bank under  any  Letter  of  Credit  against  presentation  of  a  draft  or  other  document  which  does  not substantially  comply  with  the  terms  of  such  Letter  of  Credit;  (v)  any  adverse  change  in  the business,  operations,  properties,  assets,  or  financial  condition  of  the  Borrower  or  any  of  its Subsidiaries; (vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii)  the  fact  that  an  Event  of  Default  or  a  Default  shall  have  occurred  and  be  continuing; provided, in each case, that payment by the applicable Issuing Bank under the applicable Letter of  Credit  shall  not  have  constituted  gross  negligence  or  willful  misconduct  of  such  Issuing  Bank  under the circumstances in question, as determined by a court of competent jurisdiction in a final,  non-appealable order.         (g)    Indemnification.   Without  duplication  of  any  obligation  of  the  Credit  Parties  under Section 11.2, in addition to amounts payable as provided herein, each of the Credit Parties hereby  agrees,  on  a  joint  and  several  basis,  to  protect,  indemnify,  pay  and  save  harmless  each Issuing  Bank  from  and  against  any  and  all claims, demands, liabilities, damages, losses, costs, charges  and  expenses  (including  reasonable  out-of-pocket  fees, expenses  and  disbursements  of counsel) which each Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing Bank, other than as a result of (1) the gross  negligence  or  willful  misconduct  of  such  Issuing  Bank,  as  determined  by  a  court  of competent  jurisdiction  in  a  final,  non-appealable  order,  or  (2)  the  wrongful  dishonor  by  such Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or (ii) the failure of such Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental Act.         (h)    Applicability of ISP and UCP.   Unless  otherwise  expressly  agreed  by  the  applicable Issuing Bank and the Borrower when a Letter of Credit is issued, (i) the rules of the  ISP shall apply to each Letter of Credit and (ii) the rules of the Uniform Customs and Practice for  Documentary Credits, as most recently published by the International Chamber of Commerce at  the time of issuance shall apply to each commercial Letter of Credit.         (i)    Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued  or  outstanding  hereunder  is  in  support  of  any  obligations  of,  or  is  for the account of, a Subsidiary of the Borrower, the Borrower shall be obligated to reimburse the applicable Issuing  Bank  hereunder  for  any  and  all  drawings  under  such  Letter  of  Credit.   The  Borrower  hereby acknowledges that the issuance of Letters of Credit for the account of the Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.         (j)    Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.  Section 2.4   Pro Rata Shares; Availability of Funds.                                        48 





 






       (a)    Pro Rata Shares.  All Loans shall be made, and all participations purchased, by the Lenders simultaneously and proportionately to their respective pro rata shares of the Loans, it being understood that no Lender shall be responsible for any default by any other Lender in such  other  Lender’s  obligation  to  make  a  Loan  requested  hereunder  or  purchase  a  participation  required  hereby  nor  shall  any  Revolving  Commitment  or  any  Term Loan  Commitment,  or  the  portion of the aggregate outstanding principal amount of the Revolving Loans or the Term Loans,  of any Lender be increased or decreased as a result of a default by any other Lender in such other  Lender’s  obligation  to  make  a  Loan  requested  hereunder  or  purchase  a  participation  required  hereby.         (b)    Availability of Funds.                (i)    Funding by Lenders; Presumption by Administrative Agent.  Unless the        Administrative Agent shall have received notice from a Lender prior to the proposed date        of any Borrowing (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00        noon  on  the  date  of  such  Borrowing)  that  such  Lender  will  not  make  available  to  the        Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent        may assume that such Lender has made such share available on such date in accordance        with Section 2.1(c) or, in the case of a Borrowing of Base Rate Loans, that such Lender        has  made  such  share  available  in  accordance  with  and  at  the  time  required  by  Section         2.1(c)  and  may,  in  reliance  upon  such  assumption,  make  available  to  the  Borrower  a        corresponding amount.  In such event, if a Lender has not in fact made its share of the        applicable Borrowing available to the Administrative Agent, then the applicable Lender        and  the  Borrower  severally  agree  to  pay  to  the  Administrative  Agent  forthwith  on        demand such corresponding amount in immediately available funds with interest thereon,        for each day from and including the date such amount is made available to the Borrower        to but excluding the date of payment to the Administrative Agent, at (A) in the case of a        payment to be made by such Lender, the greater of the Federal Funds Effective Rate and        a rate determined by the Administrative Agent in accordance with banking industry rules        on interbank compensation and (B) in the case of a payment to be made by the Borrower,        the interest rate applicable to Base Rate Loans, plus, in either case, any administrative,        processing or similar fees customarily charged by the Administrative Agent in connection        therewith.  If the Borrower and such Lender shall pay such interest to the Administrative        Agent  for  the  same  or  an overlapping period, the Administrative Agent shall promptly        remit to the Borrower the amount of such interest paid by the Borrower for such period.        If such Lender pays its share of the applicable Borrowing to the Administrative Agent,        then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.        Any payment by the Borrower shall be without prejudice to any claim the Borrower may        have against a Lender that shall have failed to make such payment to the Administrative        Agent.                (ii)   Payments by the  Borrower;  Presumptions by  Administrative  Agent.        Unless the Administrative Agent shall have received notice from the Borrower prior to        the date on which any payment is due to the Administrative Agent for the account of the        Lenders or any Issuing Bank hereunder that the Borrower will not make such payment,        the Administrative Agent may assume that the Borrower has made such payment on such        date in accordance herewith and may, in reliance upon such assumption, distribute to the        Lenders or each applicable Issuing Bank, as the case may be, the amount due.  In such        event, if the Borrower has not in fact made such payment, then each of the Lenders or        each  applicable  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                                       49 





 






             such  Issuing  Bank,  in  immediately  available  funds  with  interest  thereon,  for  each  day              from and including the date such amount is distributed to it to but excluding the date of              payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate              and a rate determined by the Administrative Agent in accordance with banking industry              rules on interbank compensation.  Notices given by the Administrative Agent under this subsection (b) shall be conclusive absent manifest error.         Section 2.5  Evidence of Debt; Register; Lenders’ Books and Records; Notes.               (a)    Lenders’ Evidence of Debt.  Each Lender shall maintain on its internal records an        account or accounts evidencing the Obligations of the Borrower and each other Credit Party to        such Lender, including the amounts of the Loans made by it and each repayment and prepayment        in respect thereof.  Any such recordation shall be conclusive and binding on the Borrower, absent        manifest  error;  provided,  that  the  failure  to  make  any  such  recordation,  or  any  error  in  such        recordation, shall not affect any Lender’s Commitment or the Borrower’s obligations in respect of        any  applicable  Loans;  and  provided, further,  in  the  event  of  any  inconsistency  between  the        Register and any Lender’s records, the recordations in the Register shall govern in the absence of        demonstrable error therein.               (b)    Notes.  The Borrower shall execute and deliver to each (i) Lender on the Closing       Date  or  the  Fourth  Amendment  Effective  Date,  as  applicable,  (ii)  Person  who  is  a  permitted       assignee  of  such  Lender  pursuant  to  Section  11.5  and  (iii)  Person  who  becomes  a  Lender  in        accordance with Section 2.1(d), in each case to the extent requested by such Person, a Note or        Notes  to  evidence  such  Person’s  portion  of  the  Revolving  Loans,  Swingline  Loans  or  Term        Loans, as applicable.         Section 2.6  Scheduled Principal Payments.               (a)    Revolving Loans.  The principal amount of Revolving Loans is due and payable        in full on the Revolving Commitment Termination Date.               (b)    Swingline  Loans.   The  principal  amount  of  the  Swingline  Loans  is  due  and        payable in full on the earlier to occur of (i) the date of demand by the Swingline Lender and (ii)        the Revolving Commitment Termination Date.               (c)    Fourth  Amendment  Replacement Term Loan.   The  principal  amount  of  the        Fourth Amendment Replacement Term Loan shall be repaid in installments on the date and in the        amounts set forth in the table below (as such installments may hereafter be adjusted as a result of        prepayments made pursuant to Section 2.11), unless accelerated sooner pursuant to Section 9:                       Payment Dates        Principal Amortization Payment                     September 30, 2018             $750,000.00                    December 31, 2018              $750,000.00                      March 31, 2019               $750,000.00                       June 30, 2019               $750,000.00                    September 30, 2019             $750,000.00                    December 31, 2019              $750,000.00                      March 31, 2020               $750,000.00                       June 30, 2020               $750,000.00                                            50 





 






             September 30, 2020            $1,125,000.00              December 31, 2020             $1,125,000.00                March 31, 2021              $1,125,000.00                 June 30, 2021              $1,125,000.00              September 30, 2021            $1,125,000.00              December 31, 2021             $1,125,000.00                March 31, 2022              $1,125,000.00                 June 30, 2022              $1,125,000.00              September 30, 2022            $1,500,000.00              December 31, 2022             $1,500,000.00                March 31, 2023              $1,500,000.00                 June 30, 2023              $1,500,000.00            Term Loan Maturity Date Outstanding Principal Balance of                                             Term Loan         (d)    Additional Term  Loans.   The  principal  amount  of  any  Term  Loan  established  after the Closing Date pursuant to Section 2.1(d)(iii) shall be repaid in installments on the date and in the amounts set forth in the documents executed and delivered by the Borrower pursuant to which such additional Term Loan is established.  Section 2.7   Interest on Loans.         (a)    Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal  amount  thereof  from  the  date  made  through  repayment  (whether  by  acceleration  or otherwise) thereof as follows:                (i)    in the case of Revolving Loans or the Fourth Amendment Replacement        Term Loan:                      (A)    if a Base Rate Loan (including a Base Rate Loan referencing the               LIBOR Index Rate), the Base Rate plus the Applicable Margin; or                      (B)    if an Adjusted LIBOR Rate Loan, the Adjusted LIBOR Rate plus               the Applicable Margin; and                (ii)   in the case of Swingline Loans, at the Swingline Rate (or with respect to        any Swingline Loan advanced pursuant to an Auto Borrow Agreement, such other rate as        separately agreed in writing between the Borrower and the Swingline Lender);                (iii)  in the case of any Term Loan established pursuant to Section 2.1(d)(iii),        at  the  percentages  per  annum  specified  in  the  lender  joinder  agreement(s)  and/or  the        commitment agreement(s) whereby such Term Loan is established.         (b)    The basis for determining the rate of interest with respect to any Loan (except a Swingline Loan, which may only be made and maintained at the Swingline Rate (unless and until converted into a Revolving Loan pursuant to the terms and conditions hereof), and the Interest Period with respect to any Adjusted LIBOR Rate Loan, shall be selected by the Borrower and notified to the Administrative Agent and the Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.  If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to the Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day (i) if such Loan is an Adjusted LIBOR Rate                                      51 





 






Loan, such Loan shall become a Base Rate Loan and (ii) if such Loan is a Base Rate Loan, such Loan shall remain a Base Rate Loan.         (c)    In  connection  with  Adjusted  LIBOR  Rate  Loans,  there  shall  be  no  more  than  eight  (8)  Interest  Periods  outstanding  at  any  time.   In  the  event  the  Borrower  fails  to  specify  between a Base Rate Loan or an Adjusted LIBOR Rate Loan in the applicable Funding Notice or  Conversion/Continuation Notice, such Loan (i) if outstanding as an Adjusted LIBOR Rate Loan,  will be automatically converted into a Base Rate Loan on the last day of the then-current Interest  Period for such Loan, and (ii) if outstanding as a Base Rate Loan will remain as, or (if not then  outstanding) will be made as, a Base Rate Loan.  In the event the Borrower fails to specify an  Interest  Period  for  any  Adjusted  LIBOR  Rate  Loan  in  the  applicable  Funding  Notice  or  Conversion/Continuation  Notice,  the  Borrower  shall  be  deemed  to  have  selected  an  Interest  Period  of  one  (1)  month.   As  soon  as  practicable  after  10:00  a.m.  on  each  Interest  Rate  Determination  Date  and  each  Index Rate  Determination  Date,  the Administrative  Agent  shall  determine  (which  determination  shall,  absent  manifest  error,  be  final,  conclusive  and  binding  upon  all  parties)  the  interest  rate  that  shall  apply  to  each  of the LIBOR Loans for which an  interest  rate  is  then  being  determined  (and  for  the  applicable Interest  Period  in  the  case  of  Adjusted LIBOR Rate Loans) and shall promptly give notice thereof (in writing or by telephone  confirmed in writing) to the Borrower and each Lender.         (d)    Interest payable pursuant to this Section 2.7 shall be computed on the basis of (i)  for interest at the Base Rate (including Base Rate Loans determined by reference to the LIBOR  Index Rate), year of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the  case may be, and (ii) for all other computations of fees and interest, a year of three hundred sixty  (360)  days,  in  each  case  for  the  actual  number  of  days  elapsed in  the  period  during  which  it  accrues.  In computing interest on any Loan, the date of the making of such Loan or the first day  of  an  Interest  Period  applicable  to  such  Loan  or,  with  respect to  a  Base  Rate  Loan  being  converted from an Adjusted LIBOR Rate Loan, the date of conversion of such Adjusted LIBOR  Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment  of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect  to a Base Rate Loan being converted to an Adjusted LIBOR Rate Loan, the date of conversion of  such Base Rate Loan to such Adjusted LIBOR Rate Loan, as the case may be, shall be excluded;  provided, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be  paid on that Loan.         (e)    If, as a result of any restatement of or other adjustment to the financial statements  of  the  Borrower  or  for  any  other  reason,  the  Borrower  or  the  Lenders  determine  that  (i)  the  Consolidated  Leverage  Ratio  as calculated  by  the  Borrower  as  of  any  applicable  date  was  inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in  higher pricing for such period, the Borrower shall immediately and retroactively be obligated to  pay  to  the  Administrative  Agent  for  the  account  of  the  Lenders promptly  on  demand  by  the  Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief  with  respect  to  the  Borrower  under  the  Bankruptcy  Code  or  other  Debtor  Relief  Law,  automatically and without further action by the Administrative Agent or any Lender), an amount  equal to the excess of the amount of interest and fees that should have been paid for such period  over the amount of interest and fees actually paid for such period.  This subsection (e) shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under any other provision of this Agreement.  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations.                                        52 





 






       (f)    Except as otherwise set forth herein, interest on each Loan shall accrue on a daily basis and shall be payable in arrears on and to (i) each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that Loan (other than a voluntary prepayment of a Revolving Loan or Term Loan which interest shall be payable in accordance with clause (i) above), to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity.         (g)    The  Borrower  agrees  to  pay  to  the  applicable  Issuing  Bank,  with  respect  to drawings honored under any Letter of Credit issued by such Issuing Bank, interest on the amount paid by the Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the Borrower at a rate equal to (i) for the period from  the  date  such  drawing  is honored  to  but  excluding  the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is the lesser of (y) two percent (2%) per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (z) the Highest Lawful Rate.         (h)    Interest payable pursuant to Section 2.7(g) shall be computed on the basis of a year of three hundred sixty (360) days, for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by the Issuing  Bank  of  any  payment  of  interest  pursuant  to  Section 2.7(g),  the  Issuing  Bank  shall  distribute to each Lender, out of the interest received by the Issuing Bank in respect of the period  from the date such drawing is honored to but excluding the date on which the Issuing Bank is  reimbursed  for  the  amount  of  such  drawing  (including  any  such  reimbursement  out  of  the  proceeds  of  any  Revolving  Loans),  the  amount  that  such  Lender  would  have  been  entitled  to  receive in respect of the letter of credit fee that would have been payable in respect of such Letter  of Credit for such period if no drawing had been honored under such Letter of Credit.  In the  event the Issuing Bank shall have been reimbursed by the Lenders for all or any portion of such  honored drawing, the Issuing Bank shall distribute to each Lender which has paid all amounts  payable by it under Section 2.3(e) with respect to such honored drawing such Lender’s Revolving Commitment Percentage of any interest received by the Issuing Bank in respect of that portion of such honored drawing so reimbursed by the Lenders for the period from the date on which the Issuing Bank was so reimbursed by the Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by the Borrower.  Section 2.8   Conversion/Continuation.         (a)    So  long  as  no  Default  or  Event  of  Default  shall  have  occurred  and  then  be continuing or would result therefrom, the Borrower shall have the option:                (i)    to convert at any time all or any part of any Loan equal to $100,000 and        integral multiples of $50,000 in excess of that amount from one Type of Loan to another        Type of Loan; provided, an Adjusted LIBOR Rate Loan may only be converted on the        expiration of the Interest Period applicable to such Adjusted LIBOR Rate Loan unless the        Borrower  shall  pay  all  amounts  due  under  Section 3.1(c)  in  connection  with  any  such        conversion; or                (ii)   upon  the  expiration  of  any  Interest  Period  applicable  to  any  Adjusted        LIBOR Rate Loan, to continue all or any portion of such Loan as an Adjusted LIBOR        Rate Loan.                                        53 





 






       (b)    The  Borrower  shall  deliver  a  Conversion/Continuation  Notice to  the Administrative Agent no later than 1:00 p.m. at least three (3) Business Days in advance of the proposed  Conversion/Continuation  Date.   Except  as  otherwise  provided  herein,  a Conversion/Continuation Notice for conversion to, or continuation of, any Adjusted LIBOR Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith.  Section 2.9   Default Rate of Interest.         (a)    If any amount of principal of any Loan is not paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.         (b)    If any amount (other than principal of any Loan) payable by the Borrower under any Credit Document is not paid when due (after the expiration of any applicable grace periods), whether  at  stated  maturity,  by  acceleration  or  otherwise,  then at  the  request  of  the  Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.         (c)    During  the  continuance of an Event of Default under Section 9.1(f) or Section  9.1(g),  the  Borrower  shall  pay  interest  on  the  principal  amount  of  all  outstanding  Obligations  hereunder  at  a  fluctuating  interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to the  fullest extent permitted by Applicable Laws.         (d)    During  the  continuance  of  an  Event  of  Default  other  than  an Event  of  Default  under Section 9.1(f) or Section 9.1(g), the Borrower shall, at the request of the Required Lenders, pay  interest  on  the  principal  amount  of  all  outstanding  Obligations  hereunder  at  a  fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.         (e)    Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.         (f)    In the case of any Adjusted LIBOR Rate Loan, upon the expiration of the Interest Period in effect at the time the Default Rate of interest is effective, each such Adjusted LIBOR Rate  Loan  shall  thereupon  become  a  Base  Rate  Loan  and  shall  thereafter  bear  interest  at  the Default Rate then in effect for Base Rate Loans.  Payment or acceptance of the increased rates of interest provided for in this Section 2.9 is not a permitted alternative to timely payment and shall not  constitute  a  waiver  of  any  Event  of  Default  or  otherwise  prejudice  or  limit  any  rights  or remedies of the Administrative Agent or any Lender.  Section 2.10  Fees.         (a)    Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Revolving Commitment Percentage, a commitment fee (the “Commitment Fee”) equal to the Applicable Margin of the actual daily amount by which the  Aggregate  Revolving  Commitments  exceeds  the  Total  Revolving  Outstandings,  subject  to adjustments as provided in Section 2.16.  The Commitment Fee shall accrue at all times during  the  Revolving  Commitment  Period,  including  at  any  time  during  which  one  or  more  of  the  conditions in Section 5 is not met, and shall be due and payable quarterly in arrears on the last                                       54 





 






Business Day of each March, June, September and December, commencing with the first such date  to  occur  after  the  Closing  Date,  and  on  the  Revolving  Commitment  Termination  Date; provided that (1) no Commitment Fee shall accrue on any of the Revolving Commitment of a  Defaulting Lender so long as such Lender shall be a Defaulting Lender and (2) any Commitment  Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period  prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be  payable by the Borrower so long as such Lender shall be a Defaulting Lender.  The Commitment  Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin  during any quarter, the actual daily amount shall be computed and multiplied by the Applicable  Margin separately for each period during such quarter that such Applicable Margin was in effect.  For purposes hereof, Swingline Loans shall not be counted toward or be considered as usage of  the Aggregate Revolving Commitments.         (b)    Letter of Credit Fees.                (i)   Commercial and Standby Letter of Credit Fees.  The Borrower shall pay        to  the  Administrative  Agent  for  the  account  of  each  Lender   in accordance  with  its        Revolving Commitment Percentage (A) a Letter of Credit fee for each commercial Letter        of Credit equal to one-quarter of one percent (0.25%) per annum multiplied by the daily        maximum amount available to be drawn under such Letter of Credit, and (B) a Letter of        Credit fee for each standby Letter of Credit equal to the Applicable Margin multiplied by        the  daily  maximum  amount  available  to  be  drawn  under  such  Letter  of  Credit        (collectively, the “Letter of Credit Fees”).  For purposes of computing the daily amount        available  to  be  drawn  under  any  Letter  of  Credit,  the  amount  of  such  Letter  of  Credit        shall be determined in accordance with Section 1.3(i).  The Letter of Credit Fees shall be        computed  on  a  quarterly  basis  in  arrears,  and  shall  be  due  and payable  on  the  last        Business Day of each March, June, September and December, commencing with the first        such  date  to  occur  after  the  issuance  of  such  Letter  of  Credit,  on  the  expiration  date        thereof and thereafter on demand; provided that (1) no Letter of Credit Fees shall accrue        in favor of a Defaulting Lender so long as such Lender shall be a Defaulting Lender and        (2) any Letter of Credit Fees accrued in favor of a Defaulting Lender during the period        prior to the time such Lender became a Defaulting Lender and unpaid at such time shall        not be payable by the Borrower so long as such Lender shall be a Defaulting Lender.  If        there  is  any  change  in  the  Applicable  Margin  during  any  quarter,  the  daily  maximum        amount available to be drawn under each standby Letter of Credit shall be computed and        multiplied by the Applicable Margin separately for each period during such quarter that        such  Applicable  Margin  was  in  effect.   Notwithstanding  anything  to  the  contrary        contained herein, during the continuance of an Event of Default under Sections 9.1(f) and        (g), all Letter of Credit Fees shall accrue at the Default Rate, and during the continuance        of an Event of Default other than an Event of Default under Sections 9.1(f) or (g), then        upon  the  request  of  the  Required Lenders,  all  Letter  of  Credit Fees  shall  accrue  at the        Default Rate.                (ii)   Fronting Fee and  Documentary and  Processing Charges  Payable to         Issuing Bank.  The Borrower shall pay directly to each Issuing Bank for its own account        a fronting fee (A) with respect to each commercial Letter of Credit or any amendment of        a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate        separately agreed between the Borrower and the applicable Issuing Bank, computed on        the  amount  of  such  commercial  Letter  of  Credit  or  the  amount  of  such  increase,  as        applicable,  and  payable  upon  the  issuance  of  such  commercial  Letter  of  Credit  or        effectiveness  of  such  amendment,  as  applicable,  and  (B)  with  respect  to  each  standby                                       55 





 






             Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily              amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.              Such fronting fee shall be due and payable on the last Business Day of each March, June,              September  and  December  in  respect  of  the  most  recently-ended  quarterly  period  (or              portion thereof, in the case of the first payment), commencing with the first such date to              occur after the issuance of such Letter of Credit, on its expiration date and thereafter on              demand.  For purposes of computing the daily amount available to be drawn under any              Letter of Credit, the amount of such Letter of Credit shall be determined in accordance              with Section 1.3(i).  In addition, the Borrower shall pay directly to the Issuing Bank for              its own account the customary issuance, presentation, amendment and other processing              fees, and other standard costs and charges, of the Issuing Bank relating to letters of credit              as from time to time in effect.  Such customary fees and standard costs and charges are              due and payable on demand and are nonrefundable.               (c)    Other Fees.  The Borrower shall pay to Regions Capital Markets, a division of        Regions  Bank,  and  the  Administrative  Agent  for  their  own  respective  accounts  fees  in  the        amounts and at the times specified in the Fee Letter and the Fourth Amendment Fee Letter.  Such        fees  shall  be  fully  earned  when  paid  and  shall  not  be  refundable  for  any  reason  whatsoever,        except to the extent set forth in the Fee Letter or the Fourth Amendment Fee Letter, as applicable.         Section 2.11 Prepayments/Commitment Reductions.               (a)    Voluntary Prepayments.                      (i)    Any time and from time to time, the Loans may be repaid in whole or in              part without premium or penalty (subject to Section 3.1):                            (A)    with  respect  to  Base  Rate  Loans  (including  Base  Rate  Loans                     referencing the LIBOR Index Rate), the Borrower may prepay any such Loans on                     any  Business  Day  in  whole  or  in  part,  in  an  aggregate  minimum  amount  of                     $500,000 and integral multiples of $100,000 in excess of that amount;                            (B)    with respect to Adjusted LIBOR Rate Loans, the Borrower may                     prepay any such Loans on any Business Day in whole or in part (together with                     any amounts due pursuant to Section 3.1(c)) in an aggregate minimum amount of                     $500,000 and integral multiples of $100,000 in excess of that amount; and                             (C)   with respect to Swingline Loans, the Borrower may prepay any                     such Loans on any Business Day in whole or in part in any amount;                      (ii)   All such prepayments shall be made:                             (A)   upon written or telephonic notice on the date of prepayment in                     the case of Base Rate Loans or Swingline Loans; and                             (B)   upon  not  less  than  three  (3)  Business  Days’  prior  written  or                     telephonic notice in the case of Adjusted LIBOR Rate Loans;  in each case given to the Administrative Agent, or the Swingline Lender, as the case may be, by 11:00 a.m. on the date required and, if given by telephone, promptly confirmed in writing to the Administrative Agent  (and  the  Administrative  Agent  will  promptly  transmit  such  telephonic  or  original  notice  for  a Credit Extension by telefacsimile or telephone to each Lender).  Upon the giving of any such notice, the                                             56 





 






principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein.  Any such voluntary prepayment shall be applied as specified in Section 2.12(a).               (b)    Voluntary Commitment Reductions.                      (i)    The  Borrower  may,  from  time  to  time  upon  not  less  than  three (3)              Business  Days’  prior  written  or  telephonic  notice  confirmed  in writing  to  the              Administrative  Agent  (which  original  written  or  telephonic  notice  the  Administrative              Agent will promptly transmit by telefacsimile or telephone to each applicable Lender), at              any time and from time to time terminate in whole or permanently reduce in part (i) the              Revolving Commitments (ratably among the Lenders in accordance with their respective              commitment  percentage  thereof);  provided,  (A)  any  such  partial  reduction  of  the              Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and              integral  multiples  of  $1,000,000  in  excess  of  that  amount,  (B) the  Borrower  shall  not              terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto              and  to  any  concurrent  prepayments  hereunder,  the  aggregate  Total  Revolving              Outstandings  exceed  the  Aggregate  Revolving  Commitments  and  (C) if, after giving              effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit              Sublimit and/or the Swingline Sublimit exceed the amount of the Aggregate Revolving              Commitments, the Letter of Credit Sublimit and/or the Swingline Sublimit, as applicable,              shall be automatically reduced by the amount of such excess.                      (ii)  The  Borrower’s  notice  to  the  Administrative  Agent  shall  designate  the              date (which shall be a Business Day) of such termination or reduction and the amount of              any partial reduction, and such termination or reduction of the Revolving Commitments              shall  be  effective  on  the  date  specified  in  the  Borrower’s  notice  and  shall  reduce  the              Revolving Commitments of each Lender proportionately to its Revolving Commitment              Percentage thereof.               (c)    Mandatory Prepayments.                      (i)    Revolving  Commitments.   If  at  any  time  (A)  the  Total  Revolving              Outstandings shall exceed the Aggregate Revolving Commitments, (B) the Outstanding              Amount of Letter of Credit Obligations shall exceed the Letter of Credit Sublimit, or (C)              the  Outstanding  Amount  of  Swingline  Loans  shall  exceed  the  Swingline  Sublimit,              immediate prepayment will be made on or in respect of the Revolving Obligations in an              amount equal to such excess; provided, however, that, except with respect to clause (B),              Letter  of  Credit  Obligations  will  not  be  Cash  Collateralized  hereunder  until  the              Revolving Loans and Swingline Loans have been paid in full.                      (ii)  Asset Sales and Involuntary Dispositions.  Prepayment will be made on              the Obligations on the Business Day following receipt of Net Cash Proceeds required to              be prepaid pursuant to the provisions hereof in an amount equal to one hundred percent              (100%) of  the  Net  Cash  Proceeds  received  from  any  Asset  Sale  or  Involuntary              Disposition by the Borrower or any of its Subsidiaries; provided, however, that, so long              as no Default or Event of Default has occurred and is continuing, such Net Cash Proceeds              shall  not  be  required  to  be  so  applied (A)  until  the  aggregate  amount  of  the  Net  Cash              Proceeds derived from (x) any single Asset Sale or Involuntary Disposition is equal to or              greater than $250,000 or (y) all Asset Sales or Involuntary Dispositions, inclusive of any              Asset Sales or Involuntary Dispositions consummated in reliance on the foregoing clause              (x), in any single fiscal year of the Borrower is equal to or greater than $4,000,000 and                                              57 





 






             (B) to the extent the Borrower delivers to the Administrative Agent a certificate stating               that the Credit  Parties intend to use such Net  Cash  Proceeds to  acquire  capital  assets               useful to the  business of the Credit  Parties  within  180 days of the  receipt of such Net               Cash Proceeds, it being expressly agreed that Net Cash Proceeds not so reinvested shall               be applied to prepay the Loans and/or Cash Collateralize the Letter of Credit Obligations               immediately thereafter.4,000,000.                        (iii)  Debt Transactions.  Prepayment will be made on the Obligations in an              amount equal to one hundred percent (100%) of the Net Cash Proceeds from any Debt              Transactions on the Business Day following receipt thereof.                      (iv)   Equity Transactions.  Prepayment will be made on the Obligations in an              amount  equal  to  fifty  percent  (50%)  of  the  Net  Cash  Proceeds  from  any  Equity              Transactions on the Business Day following receipt thereof.                      (v)   Excess Cash Flow.  Solely to the extent Consolidated Leverage Ratio is              greater than or equal to 2.50 to 1.00, prepayment will be made on the Obligations, on the              Business Day following delivery of each annual Compliance Certificate delivered under              Section 7.1(c),  commencing  with  the  Fiscal  Year  ending  December  31,  2018,  in an              amount equal to the difference of (x) fifty percent (50%) of Consolidated Excess Cash              Flow for the immediately preceding Fiscal Year minus (y) optional prepayments of Term              Loans  minus  (z) optional prepayments of Revolving Loans for which there has been a              permanent  reduction  of  Revolving  Commitments  pursuant  to  Section  2.11(b) in the              amount of such optional prepayment of Revolving Loans.        Section 2.12  Application of Prepayments.   Within  each  Loan,  prepayments  will  be  applied first to Base Rate Loans, then to LIBOR Loans in direct order of Interest Period maturities.  In addition:               (a)    Voluntary Prepayments.  Voluntary prepayments will be applied as specified by        the Borrower; provided that in the case of prepayments on the Term Loans, (i) the prepayment       will  be  applied  ratably  to  the  Term  Loans  then  outstanding and (b) with respect to each Term       Loan  then  outstanding,  the  prepayments  will  be  applied  to  remaining  principal  installments       thereunder in inverse order of maturity.               (b)    Mandatory Prepayments.  Mandatory prepayments will be applied as follows:                      (i)    Mandatory prepayments in respect of the Revolving Commitments under              Section  2.11(c)(i)  above  shall  be  applied  to  the  respective  Revolving  Obligations as              appropriate but without a permanent reduction thereof.                      (ii)   Mandatory  prepayments  in  respect  of  Asset  Sales  and  Involuntary              Dispositions  under  Section  2.11(c)(ii)  above,  Debt  Transactions  under  Section               2.11(c)(iii),  Equity  Transactions  under  Section  2.11(c)(iv),  Securitization  Transactions              under Section 2.11(c)(v), and Consolidated Excess Cash Flow under Section 2.11(c)(vi)              shall be applied as follows:  first, ratably to the Term Loans, until paid in full, and then to              the  Revolving  Obligations  without  a  permanent  reduction  thereof.   Mandatory              prepayments  with  respect  to  each  of  the  Term  Loans  will  be  applied  to  remaining              principal installments thereunder in inverse order of maturity.               (c)    Prepayments on the Obligations will be paid by the Administrative Agent to the       Lenders  ratably  in  accordance  with  their  respective  interests  therein  (except  for  Defaulting       Lenders where their share will be applied as provided in Section 2.16(a)(ii) hereof).                                             58 





 






Section 2.13  General Provisions Regarding Payments.         (a)    All payments by the Borrower of principal, interest, fees and other Obligations hereunder or under any other Credit Document shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition. The Administrative Agent shall, and the Borrower hereby authorizes the Administrative Agent to, debit a deposit account of the Borrower or any of its Subsidiaries held with the Administrative Agent or any of its Affiliates and designated for such purpose by the Borrower or such Subsidiary in order to cause timely payment to be made to the Administrative Agent of all principal, interest and  fees  due  hereunder  or  under  any  other  Credit  Document  (subject  to  sufficient funds being available in its accounts for that purpose).         (b)    In the event that the Administrative Agent is unable to debit a deposit account of the Borrower or any of its Subsidiaries held with the Administrative Agent or any of its Affiliates in order to cause timely payment to be made to the Administrative Agent of all principal, interest and fees due hereunder or any other Credit Document (including because insufficient funds are available  in  its  accounts  for  that  purpose),  payments  hereunder  and  under  any  other  Credit Document shall be delivered to the Administrative Agent, for the account of the Lenders, not later than 2:00 p.m. on the date due at the Principal Office of the Administrative Agent or via wire transfer of immediately available funds to an account designated by the Administrative Agent (or at such other location as may be designated in writing by the Administrative Agent from time to time); for purposes of computing interest and fees, funds received by the Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrower on the next Business Day.         (c)    All  payments  in  respect  of  the  principal  amount  of  any  Loan (other  than voluntary repayments of Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan)  shall  be  applied  to  the  payment  of  interest  then  due  and payable  before  application  to principal.         (d)    The  Administrative  Agent  shall  promptly  distribute  to  each  Lender  at  such address as such Lender shall indicate in writing, such Lender’s applicable pro rata share of all payments and prepayments of principal and interest due to such Lender hereunder, together with all other amounts due with respect thereto, including all fees payable with respect thereto, to the extent received by the Administrative Agent.         (e)    Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its pro rata share of any Adjusted LIBOR Rate Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.         (f)    Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such  payment  shall  be  made  on  the  next  succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the Commitment Fee hereunder, but such payment shall be deemed to have been made on the date therefor for all other purposes hereunder.         (g)    The Administrative Agent may, but shall not be obligated to, deem any payment by or on behalf of the Borrower hereunder that is not made in same day funds prior to 2:00 p.m.                                      59 





 






      to be a non-conforming payment.  Any such payment shall not be deemed to have been received       by the Administrative Agent until the later of (i) the time such funds become available funds, and       (ii) the applicable next Business Day.  The Administrative Agent shall give prompt telephonic        notice  to  the  Borrower  and  each  applicable  Lender  (confirmed  in  writing)  if  any  payment  is        non-conforming.  Any non-conforming payment may constitute or become a Default or Event of        Default in accordance with the terms of Section 9.1(a).  Interest shall continue to accrue on any        principal as to which a non-conforming payment is made until such funds become available funds        (but  in  no  event  less  than  the  period  from  the  date  of  such  payment  to  the  next  succeeding        applicable  Business  Day)  at  the  Default  Rate  (unless  otherwise provided  by  the  Required        Lenders) from the date such amount was due and payable until the date such amount is paid in        full.         Section 2.14 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of such Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that  the  benefit  of  all  such  payments  shall  be  shared  by  the  Lenders  ratably  in  accordance  with  the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:               (i)    if  any  such  participations  are  purchased  and  all  or  any  portion  of  the  payment        giving  rise  thereto  is  recovered,  such  participations  shall  be rescinded  and  the  purchase  price        restored to the extent of such recovery, without interest; and               (ii)   the provisions of this Section shall not be construed to apply to (A) any payment        made by the Borrower pursuant to and in accordance with the express terms of this Agreement        (including the application of funds arising from the existence of a Defaulting Lender), (B) any        amounts  applied  by  the  Swingline  Lender  to  outstanding  Swingline  Loans,  (C)  any  amounts        applied to Letter of Credit Obligations by any Issuing Bank or Swingline Loans by the Swingline        Lender, as appropriate, from Cash Collateral provided under Section 2.15 or Section 2.16, or (D)        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 Letter of Credit Obligations, Swingline Loans        or other obligations hereunder to any assignee or participant, other than to the Borrower or any        Subsidiary thereof (as to which the provisions of this Section shall apply).  Each  of  the  Credit  Parties  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 Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.         Section 2.15 Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one  (1)  Business  Day  following  the  written  request  of  the  Administrative  Agent  or  any  Issuing  Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize each applicable Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in an amount sufficient to cover the applicable Fronting Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).                                              60 





 






       (a)    Grant of  Security  Interest.   The  Borrower,  and  to  the  extent  provided  by  any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a perfected first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Obligations, to be applied pursuant to clause (b) below.  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the  total  amount  of  such  Cash  Collateral  is  less  than  the  applicable  Fronting  Exposure,  the Borrower  will,  promptly  upon  demand  by  the  Administrative  Agent,  pay  or  provide  to  the Administrative  Agent  additional  Cash  Collateral  in  an  amount  sufficient  to  eliminate  such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).         (b)    Application.   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, Cash Collateral provided under this Section 2.15 or Section 2.16 in respect of Letters of  Credit  shall  be  applied  to  the  satisfaction  of  the  Defaulting  Lender’s  obligation  to  fund participations in respect of Letter of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.         (c)    Termination of Requirement.  Cash Collateral (or the appropriate portion thereof)  provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held  as Cash Collateral pursuant to this Section 2.15 following (i) the elimination of the applicable  Fronting  Exposure  (including  by  the  termination  of  Defaulting  Lender  status  of  the  applicable  Lender), or (ii) the determination by the Administrative Agent and each Issuing Bank that there  exists  excess  Cash  Collateral;  provided,  however,  (x)  that  Cash  Collateral  furnished  by  or  on  behalf  of  a  Credit  Party  shall  not  be  released  during  the  continuance of a Default or Event of  Default (and following application as provided in this Section 2.15 may be otherwise applied in  accordance with Section 9.3) but shall be released upon the cure, termination or waiver of such  Default or Event of Default in accordance with the terms of this Agreement, and (y) the Person  providing Cash Collateral and any Issuing Bank or Swingline Lender, as applicable, may agree  that Cash Collateral shall not be released but instead held to support future anticipated Fronting  Exposure or other obligations.  Section 2.16  Defaulting Lenders.         (a)    Defaulting  Lender  Adjustments.   Notwithstanding  anything  to  the  contrary  contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as  such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:                (i)   Waivers and Amendments.  Such Defaulting Lender’s right to approve or        disapprove  any  amendment,  waiver  or  consent  with  respect  to  this Agreement shall be        restricted as set forth in Section 11.4(a)(iii).                (ii)   Defaulting Lender Waterfall. Any payment of principal, interest, fees or        other  amount  (other  than  fees  which  any  Defaulting  Lender  is  not  entitled  to  receive        pursuant to Section 2.16(a)(iii)) received by the Administrative Agent for the account of        such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section         9 or otherwise, and including any amounts made available to the Administrative Agent by        that Defaulting Lender pursuant to Section 11.3), shall be applied at such time or times as        may be determined by the Administrative Agent as follows: first, to the payment of any                                       61 





 






amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize the Issuing Bank’s  Fronting  Exposure  with  respect  to  such  Defaulting  Lender  in  accordance  with Section 2.15;  fourth,  as  the  Borrower  may  request  (so  long  as  no  Default  or  Event  of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed  to  fund  its  portion  thereof  as  required  by  this  Agreement,  as  determined  by  the Administrative  Agent;  fifth,  if  so  determined  by  the  Administrative  Agent  and  the Borrower, to be held in a non-interest bearing deposit account and released in order to (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 Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of  Credit  issued  under  this  Agreement,  in  accordance  with  Section 2.15;  sixth,  to  the payment  of  any  amounts  owing  to  the  Lenders,  the  Issuing  Banks or  the  Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the  Borrower  against  that  Defaulting  Lender  as  a  result  of  that  Defaulting  Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as  otherwise  directed  by  a  court  of  competent  jurisdiction;  provided,  that, if (x) such payment  is  a  payment  of  the  principal  amount  of  any  Loans  or  Letter  of  Credit Borrowings  in  respect  of  which  that  Defaulting  Lender  has  not  fully  funded  its appropriate share and (y) such Loans or Letter of Credit Borrowings were made at a time when the conditions set forth in Section 5.2 were satisfied or waived, such payment shall be applied solely to the pay the Loans of, and Letter of Credit Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Borrowings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swingline  Loans  are  held  by  the  Lenders  pro  rata  in  accordance with  their  Revolving Commitments without giving effect to Section 2.16(a)(iv).  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  2.16(a)(ii) shall be deemed paid to (and the underlying obligations satisfied to the extent of such payment) and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.         (iii) Certain Fees.                (A)   Such  Defaulting  Lender  shall  not  be  entitled  to  receive  any        Commitment Fee, any fees with respect to Letters of Credit (except as provided        in clause (b) below) or any other fees hereunder for any period during which that        Lender is a Defaulting Lender (and the Borrower shall not be required to pay any        such  fee  that  otherwise  would  have  been  required  to  have  been  paid  to  that        Defaulting Lender).               (B)    Each  Defaulting  Lender  shall  be  entitled  to  receive  Letter  of        Credit Fees for any period during which that Lender is a Defaulting Lender only        to  the  extent  allocable  to  its  Revolving  Commitment  Percentage of  the  stated                                62 





 






              amount of Letters of Credit for which it has provided Cash Collateral pursuant to               Section 2.15.                       (C)   With respect to any fee not required to be paid to any Defaulting               Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each               Non-Defaulting  Lender  that  portion  of  any  such  fee  otherwise  payable  to  such               Defaulting  Lender  with  respect  to  such  Defaulting  Lender’s  participation  in               Letter of Credit Obligations or Swingline Loans that has been reallocated to such               Non-Defaulting  Lender  pursuant  to  clause (iv)  below,  (y)  pay  to  each  Issuing               Bank and Swingline Lender, as applicable, the amount of any such fee otherwise               payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s               or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not               be required to pay the remaining amount of any such fee.                (iv)  Reallocation of Participations to Reduce Fronting Exposure.  All or any        part  of  such  Defaulting  Lender’s  participation  in  Letter  of  Credit  Obligations  and        Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance        with their respective Revolving Commitment Percentages (calculated without regard to        such  Defaulting  Lender’s  Revolving  Commitment)  but  only  to  the extent  that  (x)  the        conditions  set  forth  in  Section 5.2  are  satisfied  at  the  time  of  such  reallocation  (and,        unless the Borrower shall have otherwise notified the Administrative Agent at such time,        the Borrower shall be deemed to have represented and warranted that such conditions are        satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving        Credit  Exposure  at  such  time  to  exceed  such  Non-Defaulting  Lender’s  Revolving        Commitment.   Subject  to  Section  11.21,  no  reallocation  hereunder  shall  constitute  a        waiver or release of any claim of any party hereunder against a Defaulting Lender arising        from  that  Lender  having  become  a  Defaulting  Lender,  including  any  claim  of  a        Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure        following such reallocation.                (v)   Cash  Collateral,  Repayment of  Swingline  Loans.   If  the  reallocation        described  in  clause (iv)  above  cannot,  or  can  only  partially,  be  effected,  the  Borrower        shall, without prejudice to any right or remedy available to it hereunder or under law, (x)        first,  prepay  Swingline  Loans  in  an  amount  equal  to  the  Swingline  Lenders’  Fronting        Exposure and (y) second, Cash Collateralize each Issuing Banks’ Fronting Exposure in        accordance with the procedures set forth in Section 2.15.         (b)    Defaulting  Lender Cure.   If  the  Borrower,  the  Administrative  Agent  and  the  Swingline Lender and each Issuing Bank agree in writing that a Lender is no longer a Defaulting  Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective  date specified in such notice and subject to any conditions set forth therein (which may include  arrangements  with  respect  to  any  Cash  Collateral),  that  Lender will,  to  the  extent  applicable,  purchase at par that portion of outstanding Loans of the other Lenders or take such other actions  as the Administrative Agent may determine to be necessary to cause the Loans and funded and  unfunded  participations  in  Letters  of  Credit  and  Swingline  Loans  to  be  held  pro  rata  by  the  Lenders  in  accordance  with  the  Revolving  Commitments  (without  giving  effect  to  Section  2.16(a)(iv),  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 Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from                                        63 





 






      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.               (c)    New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting        Lender,  (i)  the  Swingline  Lender  shall  not  be  required  to  fund Swingline  Loans  unless  it  is        satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan, and        (ii)  no  Issuing  Bank  shall  be  required  to  issue,  extend,  renew or  increase  any  Letter  of  Credit        unless it is satisfied that it will  have no Fronting Exposure after giving effect thereto.         Section 2.17 Removal or Replacement of  Lenders.  If (a) any Lender requests compensation under Section 3.2, (b) any Credit Party is required to pay any additional amount to any Lender or any Governmental  Authority  for  the  account  of  any  Lender  pursuant  to  Section 3.3,  (c)  any  Lender  gives notice of an inability to fund LIBOR Loans under Section 3.1(b), (d) any Lender is a Defaulting Lender, or  (e)  any  Lender  (a  “Non-Consenting  Lender”)  does  not  consent  (including  by  way  of  a  failure  to respond in writing to a proposed amendment, consent or waiver by the date and time specified by the Administrative  Agent)  to  a  proposed  amendment,  consent,  change,  waiver,  discharge  or  termination hereunder or with respect to any Credit Document that has been approved by the Required Lenders, then the  Borrower  may,  at  its  sole  expense  and  effort,  upon  notice  to  such  Lender  and  the  Administrative Agent, require such Lender to assign and delegate without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.5, all of its interests, rights (other than its rights  under  Section 3.2,  Section 3.3  and  Section  11.2)  and  obligations  under  this  Agreement  and  the related Credit Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:               (i)    the  Borrower  shall  have  paid  to  the  Administrative  Agent  the  assignment  fee       specified in Section 11.5(b)(iv);               (ii)   such Lender shall have received payment of an amount equal to the outstanding       principal of its Loans and participations in Letter of Credit Borrowings, as applicable, accrued       interest thereon, accrued fees and all other amounts payable to it hereunder and under the other       Credit Documents (including any amounts under Section 3.1(c)) from the assignee (to the extent       of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all       other amounts);               (iii)  in the case of any such assignment resulting from a claim for compensation under       Section 3.2 or  payments  required  to  be  made  pursuant  to  Section 3.3,  such  assignment  is        reasonably expected to result in a reduction in such compensation or payments thereafter;               (iv)   such assignment does not conflict with Applicable Law; and               (v)    in  the  case  of  any  such  assignment  resulting  from  a  Non-Consenting  Lender’s        failure to consent to a proposed amendment, consent, change, waiver, discharge or termination,        the  successor  replacement  Lender  shall  have  consented  to  the  proposed  amendment,  consent,        change, waiver, discharge or termination.  Each  Lender  agrees  that  in  the  event  it,  or  its  interests  in  the  Loans  and  obligations  hereunder,  shall become  subject  to  the  replacement  and  removal  provisions  of  this  Section,  it  will  cooperate  with  the Borrower and the Administrative Agent to give effect to the provisions hereof, including execution and delivery  of  an  Assignment  Agreement  in  connection  therewith,  but  the  replacement  and  removal provisions of this Section shall be effective regardless of whether an Assignment Agreement shall have been given.                                             64 





 






A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.                             Section 3     YIELD PROTECTION        Section 3.1   Making or Maintaining LIBOR Loans.               (a)    Inability to  Determine  Applicable  Interest Rate.   In  the  event  that  the        Administrative Agent shall have determined (which determination shall be final and conclusive        and binding upon all parties hereto), on any Interest Rate Determination Date or any Index Rate        Determination Date with respect to any LIBOR Loans, that by reason of circumstances affecting        the London interbank market adequate and fair means do not exist for ascertaining the interest        rate  applicable  to  such  LIBOR  Loans  on  the  basis  provided  for  in  the  definition  of  Adjusted        LIBOR Rate or LIBOR Index Rate, as applicable, the Administrative Agent shall on such date        give  notice  (by  telefacsimile  or  by  telephone  confirmed  in  writing)  to  the  Borrower  and  each        Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBOR        Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the        circumstances  giving  rise  to  such  notice  no  longer  exist,  and  (ii)  any  Funding  Notice  or        Conversion/Continuation Notice given by the Borrower with respect to the Loans in respect of        which such determination was made shall be deemed to be rescinded by the Borrower and such        Loans  shall  be  automatically  made  or  continued  as,  or  converted  to,  as  applicable,  Base  Rate        Loans without reference to the LIBOR Index Rate component of the Base Rate.               (b)    Illegality or Impracticability of LIBOR Loans.  In the event that on any date any       Lender  shall  have  determined  (which  determination  shall  be  final  and  conclusive  and  binding       upon  all  parties  hereto  but  shall be  made  only  after  consultation  with  the  Borrower  and  the       Administrative Agent) that the making, maintaining or continuation of its LIBOR Loans (i) has       become unlawful as a result of compliance by such Lender in good faith with any law, treaty,       governmental  rule,  regulation,  guideline  or  order  (or  would  conflict  with  any  such  treaty,       governmental  rule,  regulation,  guideline  or  order  not  having  the  force  of  law  even  though  the       failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result       of contingencies occurring after the date hereof which materially and adversely affect the London       interbank market or the position of such Lender in that market, then, and in any such event, such       Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by       telephone  confirmed  in  writing)  to  the  Borrower  and  the  Administrative  Agent  of  such       determination  (which  notice  the  Administrative  Agent  shall  promptly  transmit  to  each  other       Lender).  Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert       Loans to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the Affected       Lender, (2) to the extent such determination by the Affected Lender relates to a LIBOR Loan then       being  requested  by  the  Borrower  pursuant  to  a  Funding  Notice  or  a  Conversion/Continuation       Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such       Loan  to,  as  the  case  may  be)  a  Base  Rate  Loan  without  reference  to  the  LIBOR  Index  Rate       component  of  the  Base  Rate,  (3)  the  Affected  Lender’s  obligation  to  maintain  its  outstanding       LIBOR Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration       of the Interest Period then in effect with respect to the Affected Loans or when required by law,       and (4) the Affected Loans shall automatically convert into Base Rate Loans without reference to       the  LIBOR  Index  Rate  component  of  the  Base  Rate  on  the  date  of such  termination.       Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described                                             65 





 






above  relates  to  a  LIBOR  Loan  then  being  requested  by  the  Borrower  pursuant  to  a  Funding Notice or a Conversion/Continuation Notice, the Borrower shall have the option, subject to the provisions of Section 3.1(a), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly  transmit  to  each  other  Lender).   Except  as  provided  in  the  immediately  preceding sentence, nothing in this Section 3.1(b) shall affect the obligation of any Lender other than an Affected  Lender  to  make  or  maintain  Loans  as,  or  to  convert  Loans  to,  LIBOR  Loans  in accordance with the terms hereof.         (c)    Compensation for  Breakage or  Non-Commencement of  Interest  Periods.   The  Borrower  shall  compensate  each  Lender,  upon  written  request  by such  Lender  (which  request  shall  set  forth  the  basis  for  requesting  such  amounts),  for  all  reasonable  out-of-pocket  losses,  expenses and liabilities (including any interest paid or calculated to be due and payable by such  Lender to lenders of funds borrowed by it to make or carry its Adjusted LIBOR Rate Loans and  any  loss,  expense  or  liability  sustained  by  such  Lender  in  connection  with  the  liquidation  or  re-employment  of  such  funds  but  excluding  loss  of  anticipated  profits)  which  such  Lender  sustains:  (i) if for any reason (other than a default by such Lender) a borrowing of any Adjusted  LIBOR  Rate  Loans  does  not  occur  on  a  date  specified  therefor  in  a  Funding  Notice  or  a  telephonic request for borrowing, or a conversion to or continuation of any Adjusted LIBOR Rate  Loans  does  not  occur  on  a  date  specified  therefor  in  a  Conversion/Continuation  Notice  or  a  telephonic  request  for  conversion  or  continuation;  (ii)  if  any prepayment  or  other  principal  payment of, or any conversion of, any of its Adjusted LIBOR Rate Loans occurs on any day other  than  the  last  day  of  an  Interest  Period  applicable  to  that  Loan  (whether  voluntary,  mandatory,  automatic,  by  reason  of  acceleration,  or  otherwise),  including as  a  result  of  an  assignment  in  connection with the replacement of a Lender pursuant to Section 2.17; or (iii) if any prepayment of  any  of  its  Adjusted  LIBOR  Rate  Loans  is  not  made  on  any  date  specified  in  a  notice  of prepayment given by the Borrower.         (d)    Booking of LIBOR  Loans.   Any  Lender  may  make,  carry  or  transfer  LIBOR  Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such  Lender.         (e)    Assumptions Concerning Funding of Adjusted LIBOR Rate Loans.  Calculation  of all amounts payable to a Lender under this Section 3.1 and under Section 3.2 shall be made as  though such Lender had actually funded each of its relevant Adjusted LIBOR Rate Loans through  the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (i) of the  definition of Adjusted LIBOR Rate in an amount equal to the amount of such Adjusted LIBOR  Rate  Loans  and  having  a  maturity  comparable  to  the  relevant  Interest  Period  and  through  the  transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of  such Lender in the United States; provided, however, each Lender may fund each of its Adjusted LIBOR Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 3.1 and under Section 3.2.         (f)    Certificates for  Reimbursement.   A  certificate  of  a  Lender  setting  forth  in reasonable detail the amount or amounts necessary to compensate such Lender, as specified in paragraph (c) of this Section and the circumstances giving rise thereto shall be delivered to the Borrower  and  shall  be  conclusive  absent  manifest  error.   In  the  absence  of  any  such  manifest error, the Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.                                       66 





 






       (g)    Delay in Requests.  The Borrower shall not be required to compensate a Lender  pursuant to this Section for any such amounts incurred more than six (6) months prior to the date  that such Lender delivers to the Borrower the certificate referenced in Section 3.1(f).  Section 3.2   Increased Costs.         (a)    Increased Costs Generally.  If any Change in Law shall:                (i)    impose,  modify  or  deem  applicable  any  reserve,  special  deposit,        compulsory loan, insurance charge or similar requirement against assets of, deposits with        or for the account of, or credit extended or participated in by, any Lender (except any        reserve requirement reflected in the Adjusted LIBOR Rate or the LIBOR Index Rate) or        any Issuing Bank;                (ii)   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; or                (iii)  impose  on  any  Lender  or  any  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;   and the result of any of the foregoing shall be to increase the cost to such Lender or such other  Recipient  of  making,  converting  to,  continuing  or  maintaining  any  Loan  or  of  maintaining  its  obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or  such  other  Recipient  of  participating  in,  issuing  or  maintaining  any  Letter  of  Credit  (or  of  maintaining  its  obligation  to  participate  in  or  to  issue  any  Letter  of  Credit),  or  to  reduce  the  amount  of  any  sum  received  or  receivable  by  such  Lender,  Issuing  Bank  or  other  Recipient  hereunder (whether of principal, interest or any other amount) then, upon request of such Lender,  Issuing Bank or other Recipient, the Borrower will pay to such Lender, Issuing Bank or other  Recipient,  as  the  case  may  be,  such  additional  amount  or  amounts  as  will  compensate  such  Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or  reduction suffered.         (b)    Capital and  Liquidity  Requirements.   If  any  Lender,  any  Issuing  Bank  or  the  Swingline  Lender  (for  purposes  hereof,  may  be  referred  to  collectively  as  “the  Lenders”  or  a  “Lender”) determines that any Change in Law affecting such Lender or any lending office of such  Lender  or  such  Lender’s  holding  company,  if  any,  regarding  capital  or  liquidity  ratios  or  requirements has or would have the effect of reducing the rate of return on such Lender’s capital  or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement,  the commitments of such Lender hereunder or the Loans made by, or participations in Letters of  Credit and Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing  Bank, to a level below that which such Lender or such Lender’s holding company could have  achieved but for such Change in Law (taking into consideration such Lender’s policies and the  policies of such Lender’s holding company with respect to capital adequacy), then from time to  time  the  Borrower  will  pay  to  such  Lender,  as  the  case  may  be, such  additional  amount  or  amounts  as  will  compensate  such  Lender  or  such  Lender’s  holding  company  for  any  such  reduction suffered.                                        67 





 






       (c)    Certificates for  Reimbursement.   A  certificate  of  a  Lender  or  an  Issuing  Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and the circumstances giving rise thereto shall be delivered to the Borrower and shall  be  conclusive  absent  manifest  error.   In  the  absence  of  any  such  manifest  error,  the Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.         (d)    Delay in  Requests.   Failure  or  delay  on  the  part  of  any  Lender  or  any  Issuing  Bank  to  demand  compensation  pursuant  to  this  Section  shall  not constitute  a  waiver  of  such  Lender’s or such Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased  costs  incurred  or  reductions  suffered  more  than  six  (6)  months  prior  to  the  date  that such Lender or such Issuing Bank, as the case may be, delivers to the Borrower the certificate referenced in Section 3.2(c) and notifies the Borrower of such Lender’s or such Issuing Bank’s  intention to claim compensation therefor (except that, if the Change in Law giving rise to such  increased costs or reductions is retroactive, then the six-month period referred to above shall be  extended to include the period of retroactive effect thereof).   Section 3.3  Taxes.         (a)    Issuing Banks.  For purposes of this Section 3.3, the term “Lender” shall include any Issuing Bank and the term “Applicable Law” shall include FATCA.         (b)    Payments Free of  Taxes;  Obligation to  Withhold; Payments on  Account of  Taxes.  Any and all payments by or on account of any obligation of any Credit Party hereunder or under any other Credit 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 Credit Party shall be increased as  necessary  so  that  after  such  deduction  or  withholding  has  been  made  (including  such deductions  and  withholdings  applicable  to  additional  sums  payable  under  this  Section)  the applicable  Recipient  receives  an  amount  equal  to  the  sum  it would have received had no such deduction or withholding been made.         (c)    Payment of Other Taxes by the Credit Parties.  The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.         (d)    Tax Indemnification.  (i)  The Credit Parties shall jointly and severally indemnify each  Recipient  and  shall  make  payment  in  respect  thereof  within  ten  (10)  Business  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 Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate  as  to  the  amount  of  any  such  payment  or  liability  delivered  to  the  Borrower  by  a                                        68 





 






      Lender  (with  a  copy  to  the  Administrative  Agent),  or  by  the  Administrative  Agent  on  its  own       behalf or on behalf of a Lender, shall be conclusive absent manifest error.               (ii)   Each Lender shall severally indemnify the Administrative Agent within ten (10)       Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender       (but only to the extent that any Credit Party has not already indemnified the Administrative Agent       for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii)       any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.5(d)       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  Credit  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 Credit 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 clause (ii).               (e)    Evidence of Payments.  As soon as practicable after any payment of Taxes by        any Credit Party to a Governmental Authority pursuant to this Section, such Credit Party shall        deliver to the Administrative Agent the original or a certified copy of a receipt issued by such        Governmental Authority evidencing such payment, a copy of a return reporting such payment or        other evidence of such payment reasonably satisfactory to the Administrative Agent.               (f)    Status of  Lenders; Tax  Documentation.   (i)  Any  Lender  that  is  entitled  to  an exemption  from  or  reduction  of  withholding  Tax  with  respect  to payments  made  under  any  Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested  by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed documentation  reasonably  requested  by  the  Borrower  or  the  Administrative  Agent  as  will  permit  such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested  by  the  Borrower  or  the  Administrative  Agent,  shall  deliver  such  other documentation  prescribed  by  Applicable  Law  or  reasonably  requested  by  the  Borrower  or  the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not  such  Lender  is  subject  to  backup  withholding  or  information  reporting  requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (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 the Borrower is a U.S. Person,               (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time  to  time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent), executed  originals  of  IRS  Form  W-9  certifying  that  such  Lender is  exempt  from  U.S.  federal  backup withholding tax;                                              69 





 






             (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time  to  time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent), whichever of the following is applicable:                      (i)  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              Credit Document, executed originals of IRS Form W-8BEN or W-8BEN-E 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  Credit  Document,  IRS  Form  W-8BEN  or  W-8BEN-E  establishing  an              exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business              profits” or “other income” article of such tax treaty;                      (ii)  executed originals of IRS Form W-8ECI;                      (iii) in the case of a Foreign Lender claiming the benefits of the exemption for              portfolio  interest  under  Section  881(c)  of  the  Internal  Revenue  Code,  (x)  a  certificate              substantially in the form of Exhibit 3.3-1 to the effect that such Foreign Lender is not a              “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10              percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the              Internal  Revenue  Code,  or  a  “controlled  foreign  corporation”  described  in  Section              881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y)              executed originals of IRS Form W-8BEN or W-8BEN-E; or                      (iv) to the extent a Foreign Lender is not the beneficial owner, executed originals              of  IRS  Form  W-8IMY,  accompanied  by  IRS  Form  W-8ECI,  IRS  Form  W-8BEN  or              W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.3-2              or  Exhibit 3.3-3,  IRS  Form  W-9,  and/or  other  certification  documents  from  each              beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and              one or more direct or indirect partners of such Foreign Lender are claiming the portfolio              interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate              substantially  in  the  form  of  Exhibit  3.3-4  on  behalf  of  each  such  direct  and  indirect              partner;               (C)  any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time  to  time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent), executed  originals  of  any  other  form  prescribed  by  Applicable  Law  as  a  basis  for  claiming  exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation  as  may  be  prescribed  by  Applicable  Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and               (D) if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting  requirements  of  FATCA  (including  those  contained  in  Section  1471(b)  or  1472(b)  of  the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent  at  the  time  or  times  prescribed  by  law  and  at  such  time  or  times  reasonably  requested  by  the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as                                             70 





 






prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this 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 and the Administrative Agent in writing of its legal inability to do so.               (g)    Treatment of Certain Refunds.  Unless required by Applicable Law, at no time       shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a       Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted       from funds paid for the account of such Lender.  If any indemnified 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  (including  by  the  payment  of  additional  amounts       pursuant to this Section), 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 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  the       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.         (i)   Survival.  Each party’s obligations under this Section 3.3 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 Credit Document.         Section 3.4  Mitigation  Obligations;  Designation of a  Different  Lending  Office.   If  any Lender requests compensation under Section 3.2, or requires the Borrower to pay any Indemnified Taxes or  additional  amounts  to  any  Lender  or  any  Governmental  Authority  for  the  account  of  any  Lender pursuant to Section 3.3, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.2 or Section 3.3, 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  Borrower  hereby agrees  to  pay  all  reasonable  costs  and  expenses  incurred  by  any  Lender  in  connection  with  any  such designation or assignment.                                             71 





 






                               Section 4    GUARANTY        Section 4.1.  The Guaranty.        Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent, the Lenders,  the  Qualifying  Swap  Providers,  the  Qualifying  Treasury  Management  Banks  and  the  other holders  of  the  Obligations  as  hereinafter  provided,  as  primary obligor  and  not  as  surety,  the  prompt payment of the Obligations (the “Guaranteed Obligations”) in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay 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 Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or renewal.        Notwithstanding  any  provision  to  the  contrary  contained  herein,  in  any  other  of  the  Credit Documents,  Swap  Agreements,  Treasury  Management  Agreements  or  other  documents  relating  to  the Obligations, (a) the obligations of each Guarantor under this Agreement and the other Credit Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law and (b) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.        Section 4.2   Obligations Unconditional.         The  obligations  of  the  Guarantors  under  Section 4.1  are  joint  and  several,  absolute  and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Credit Documents, Swap Agreements or Treasury Management Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of  or  security  for  any  of  the  Obligations,  and,  to  the  fullest extent  permitted  by  Applicable  Law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.2 that the  obligations  of  the  Guarantors  hereunder  shall  be  absolute  and  unconditional  under  any  and  all circumstances.  Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this Section 4 until such time as the Obligations have been paid in full and the Commitments have expired or terminated.   Without  limiting  the  generality  of  the  foregoing, it  is  agreed  that,  to  the  fullest  extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:               (a)    at any time or from time to time, without notice to any Guarantor, the time for        any  performance  of  or  compliance  with  any  of  the  Obligations  shall  be  extended,  or  such        performance or compliance shall be waived;               (b)    any  of  the  acts  mentioned  in  any  of  the  provisions  of  any  of the Credit        Documents,  any  Swap  Agreement  between  any  Credit  Party  and  any Swap  Provider,  or  any        Treasury  Management  Agreement  between  any  Credit  Party  and  any Treasury  Management        Bank,  or  any  other  agreement  or  instrument  referred  to  in  the  Credit  Documents,  such  Swap        Agreements or such Treasury Management Agreements shall be done or omitted;                                             72 





 






             (c)    the  maturity  of  any  of  the  Obligations  shall  be  accelerated, or any of the       Obligations shall be modified, supplemented or amended in any respect, or any right under any of       the Credit Documents, any Swap Agreement between any Credit Party and any Swap Provider or       any Treasury Management Agreement between any Credit Party and any Treasury Management       Bank,  or  any  other  agreement  or  instrument  referred  to  in  the  Credit  Documents,  such  Swap       Agreements or such Treasury Management Agreements shall be waived or any other guarantee of        any of the Obligations or any security therefor shall be released, impaired or exchanged in whole        or in part or otherwise dealt with;               (d)    any Lien granted to, or in favor of, the Administrative Agent or any Lender or        Lenders as security for any of the Obligations shall fail to attach or be perfected; or               (e)    any  of  the  Obligations  shall  be  determined  to  be  void  or  voidable  (including,        without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to        the claims of any Person (including, without limitation, any creditor of any Guarantor).         With  respect  to  its  obligations  hereunder,  each  Guarantor  hereby  expressly  waives  diligence, presentment,  demand  of  payment,  protest  and  all  notices  whatsoever,  and  any  requirement  that  the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under  any  of  the  Credit  Documents,  any  Swap  Agreement  between  any  Credit  Party  and  any  Swap Provider  or  any  Treasury  Management  Agreement  between  any  Credit  Party  and  any  Treasury Management Bank, or any other agreement or instrument referred to in the Credit Documents, such Swap Agreements  or  such  Treasury  Management  Agreements,  or  against  any  other  Person  under  any  other guarantee of, or security for, any of the Obligations.         Section 4.3  Reinstatement.         The obligations of the Guarantors under this Section 4 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any  proceedings  in  bankruptcy  or  reorganization  or  otherwise,  and  each  Guarantor  agrees  that  it  will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including,  without  limitation,  the  fees,  charges  and  disbursements  of  counsel)  incurred  by  the Administrative  Agent  or  such  Lender  in  connection  with  such  rescission  or  restoration,  including  any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.        Section 4.4   Certain Additional Waivers.         Each  Guarantor  agrees  that  such  Guarantor  shall  have  no  right  of  recourse  to  security  for  the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.2 and through the exercise of rights of contribution pursuant to Section 4.6.         Section 4.5  Remedies.         The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.2 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.2) for purposes of Section  4.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and                                             73 





 






payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.1.  The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms thereof.        Section 4.6   Rights of Contribution.         The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under Applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Credit Documents and no Guarantor shall exercise such rights of contribution until all Obligations have been paid in full and the Commitments have terminated.         Section 4.7  Guarantee of Payment; Continuing Guarantee.         The guarantee in this Section 4 is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.         Section 4.8  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 Specified Credit Party to honor all of such Specified Credit Party’s obligations under the Guaranty and  the  Collateral  Documents  in  respect  of  Swap  Obligations  (provided,  however,  that  each  Qualified ECP Guarantor shall only be liable under this Section 4.8 for the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 4, voidable under applicable Debtor Relief Laws, and not for any greater amount).  The obligations and undertakings of each Qualified ECP Guarantor under this Section 4.8 shall remain in full force and effect until the Guaranteed Obligations have been indefeasibly paid and performed in full and the commitments relating thereto have expired or terminated, or, with respect to any Guarantor, if earlier, such Guarantor is released from its Guaranteed Obligations in accordance with Section 10.10(a).  Each Qualified ECP Guarantor intends that this Section 4.8 constitute, and this Section 4.8 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Credit Party for all purposes of section 1a(18)(A)(v)(II) of the Commodity Exchange Act.                         Section 5     CONDITIONS PRECEDENT        Section 5.1   Conditions Precedent to Initial Credit Extensions.  The obligation of each Lender to make a Credit Extension on the Closing Date is subject to the satisfaction of the following conditions on or before the Closing Date:               (a)    Executed Credit Documents.  Receipt by the Administrative Agent of executed        counterparts  of  this  Agreement  and  the  other  Credit  Documents, in  each  case,  in  form  and        substance reasonably satisfactory to the Administrative Agent and the Lenders and duly executed        by the appropriate parties thereto.               (b)    Organizational  Documents.   Receipt  by  the  Administrative  Agent  of  the       following:                      (i)   Charter  Documents.   Copies  of  articles  of  incorporation,  certificate  of              organization or formation, or other like document for each of the Credit Parties certified              as of a recent date by the appropriate Governmental Authority.                                             74 





 






              (ii)   Organizational Documents Certificate.  (A) Copies of bylaws, operating        agreement, partnership agreement or like document, (B) copies of resolutions approving        the transactions contemplated in connection with the financing and authorizing execution        and delivery of the Credit Documents, and (C) incumbency certificates, for each of the        Credit  Parties,  in  each  case  certified  by  an  Authorized  Officer  in  form  and  substance        reasonably satisfactory to the Administrative Agent.                (iii)  Good  Standing  Certificate.   Copies  of  certificates  of  good  standing,        existence or the like of a recent date for each of the Credit Parties from the appropriate        Governmental Authority of its jurisdiction of formation or organization.                (iv)  Closing  Certificate.   A  certificate  from  an  Authorized  Officer  of  the        Borrower, in form and substance reasonably satisfactory to the Administrative Agent and        the  Required  Lenders,  confirming,  among  other  things,  (A)  all  consents,  approvals,        authorizations, registrations, or filings required to be made or obtained by the Borrower        and  the  other  Credit  Parties,  if  any,  in  connection  with  this  Agreement  and  the  other        Credit  Documents  and  the  transactions  contemplated  herein  and  therein  have  been        obtained  and  are  in  full  force  and  effect,  (B)  no  investigation  or  inquiry  by  any        Governmental Authority regarding this Agreement and the other Credit Documents and        the transactions contemplated herein and therein is ongoing, (C) the financings and the        transactions contemplated by this Agreement and the other Credit Documents shall be in        compliance  with  all  applicable  laws  and  regulations  (including all applicable securities        and  banking  laws,  rules  and  regulations),  (D)  since  the  date  of  the  most-recent  annual        audited financial statements for the Borrower, there has been no event or circumstance        which  could  be  reasonably  expected  to  have  a  Material  Adverse  Effect,  (E)  (x)  the        most-recent  annual  audited  financial  statements,  (y)  the  internally  prepared  quarterly        financial statements of the Credit Parties and their Subsidiaries (other than the Target) on        a  combined  basis  for  the  fiscal  quarter  ending  on  June  30,  2015  and  (z)  the  internally        prepared quarterly financial statements of the Target and its Subsidiaries (on a combined        basis  for  the  fiscal  quarter  ending  on  June  30,  2015,  in  each  case,  were  prepared  in        accordance with GAAP consistently applied, except as noted therein and fairly present in        all material respects the financial condition and results from operations of the Borrower        and  its  Subsidiaries,  and  (F)  the  Borrower,  individually,  and  the  Borrower  and  its        Subsidiaries,  taken  as  a  whole,  are  Solvent  after  giving  effect  to  the  transactions        contemplated hereby and the incurrence of Indebtedness related thereto.         (c)    Opinions of  Counsel.   Receipt  by  the  Administrative  Agent  of  customary opinions  of  counsel  for  each  of  the  Credit  Parties,  including, among  other  things,  opinions regarding  the  due  authorization,  execution  and  delivery  of  the Credit  Documents  and  the enforceability thereof.         (d)    Personal Property Collateral.  Receipt by the Collateral Agent of the following:                (i)   UCC  Searches.   (A)  Searches  of  UCC  filings  in  the  jurisdiction  of        incorporation  or  formation,  as  applicable,  of  each  Credit  Party  and  each  jurisdiction        where  any  Collateral  is  located  or  where  a  filing  would  need  to  be  made  in  order  to        perfect the Collateral Agent’s security interest in the Collateral, copies of the financing        statements  on  file  in  such  jurisdictions  and  evidence  that  no  Liens  exist  other  than        Permitted Liens and (B) tax lien and judgment searches;                                        75 





 






       (ii)  Intellectual  Property  Searches.   Searches  of  ownership  of  Intellectual Property  in  the  appropriate  governmental  offices  and  such  patent/trademark/copyright filings  as  requested  by  the  Collateral  Agent  in  order  to  perfect  the  Collateral  Agent’s security interest in the Intellectual Property;         (iii) UCC Financing Statements.  Such UCC financing statements necessary or  appropriate  to  perfect  the  security  interests  in  the  personal  property  collateral,  as determined by the Collateral Agent.         (iv)  Intellectual  Property  Filings.   Such  patent,  trademark  and  copyright notices, filings and recordations necessary or appropriate to perfect the security interests in intellectual property and intellectual property rights, as determined by the Collateral Agent.         (v)   Pledged  Equity  Interests.   Original  certificates  evidencing  any certificated  Equity  Interests  pledged  as  collateral,  together  with  undated  stock  transfer powers executed in blank.         (vi)  Evidence of  Insurance.   Certificates  of  insurance  for  casualty,  liability and any other insurance required by the Credit Documents satisfactory to the Collateral Agent.  Subject to Section 7.18(f), the Collateral Agent shall be named (i) as lenders’ loss payee, as its interest may appear, with respect to any such insurance providing coverage in respect of any Collateral and (ii) as additional insured, as its interest may appear, with respect to any such insurance providing liability coverage, and the Credit Parties will use their commercially reasonable efforts to have each provider of any such insurance agree, by endorsement upon the policy or policies issued by it or by independent instruments to be furnished to the Collateral Agent, that it will give the Collateral Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.         (vii) Consents.   Duly  executed  consents  as  are  necessary,  in  the  Collateral Agent’s sole discretion, to perfect the Lenders’ security interest in the Collateral.         (viii) [Reserved].         (ix)   Allonges and  Assignments.   To  the  extent  required  to  be  delivered pursuant to the terms of the Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Credit Parties, together with allonges or assignments as  may  be  necessary  or  appropriate  to  perfect  the  Collateral  Agent’s  and  the  Lenders’ security interest in the Collateral.  (e)    [Reserved].  (f)    Vessel Collateral.         (i)   Fleet Mortgage. A duly executed first preferred fleet mortgage covering all  Vessels  owned  by  the  Credit  Parties  in  form  and  substance  satisfactory  to  the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time,  a  “Fleet Mortgage”).   Each  such  Vessel  shall  have  been  duly  documented  in  the name  of  the  applicable  Credit  Party  under  the  laws  of  the  United  States,  such  Fleet Mortgage  shall  have  been  duly  recorded  by  the  United  States  Coast  Guard  (or,  in  the discretion  of  the  Collateral  Agent,  filed  for  recording  in  such  office),  and  the  Fleet Mortgage shall constitute a preferred mortgage on the Vessels to which it relates subject                                76 





 






       only to other preferred mortgage liens in favor of the Collateral Agent and those Fleet        Preferred  Mortgages  described  in  Section  7.19(e)  for  the  time  period  set  forth  in  such        Section.                (ii)   Insurance Summaries.  Summaries of the insurance coverages and copies        of certificates of insurance for the Hull and Machinery, Protection and Indemnity, Vessel        Pollution and Excess Liabilities coverages of the Credit Parties.                (iii) Certificates.  In  each  case,  to  the  extent  applicable,  (A)  a  true  and        complete copy of the Certificate of Documentation of each Vessel and (B) a certificate of        ownership and encumbrance or a certified copy of the Abstract of Title of such Vessel        issued by the United States Coast Guard showing the Credit Party described on Schedule        6.10(d) as the owner of such Vessel to be the sole owner of each Vessel free and clear of        all Liens of record except (x) the Fleet Mortgage covering each such Vessel in favor of        the  Collateral  Agent  and  (y)  the  Liens  in  favor  of  Wells  Fargo Bank,  National        Association that are being terminated on the Closing Date in connection with the payoff        of all existing indebtedness of the Borrower and its Subsidiaries.                (iv)  Certificate of Inspection.  To the extent applicable, with respect to each        Vessel, a copy of the current certificate of inspection issued by the United States Coast        Guard covering such Vessel reflecting no outstanding recommendations.                (v)   (A) Certificate of Insurance from McGriff, Seibels & Williams of Texas,        Inc.,  who  are  insurance  brokers  acting  for  the  Borrower,  of  the  placement  of  the        insurances covering each Vessel; (B) written confirmation from such brokers, that they        have received no notice of the assignment of the insurances or any claim covering each        Vessel  in  favor  of  any  party  other  than  the  Collateral  Agent,  subject  to  verification  of        termination of the Liens in favor of Wells Fargo Bank, National Association and (C) an        opinion  of  such  brokers  to  the  effect  that  such  insurance  complies  with  the  applicable        provisions of the Fleet Mortgage;         (g)    Funding  Notice;  Funds  Disbursement  Instructions.   The  Administrative  Agent shall have received (a) a duly executed Funding Notice with respect to the Credit Extension to occur  on  the  Closing  Date  and  (b)  duly  executed  disbursement  instructions  (with  wiring instructions and account information) for all disbursements to be made on the Closing Date.         (h)    Termination of Existing Credit Agreement and other Existing Indebtedness of the  Credit  Parties.   Receipt  by  the  Administrative  Agent  of  evidence  that  the  Existing  Credit Agreement  concurrently  with  the  Closing  Date  is  being  terminated  and  all  Liens  securing obligations  under  the  Existing  Credit  Agreement  concurrently  with the Closing Date are being released.  Receipt by the Administrative Agent of evidence that all other existing Indebtedness for borrowed  money  of  the  Credit  Parties  and  their  Subsidiaries  (including  the  Target  and  its Subsidiaries other than Indebtedness permitted to exist hereunder) shall be repaid in full and all security interests related thereto shall be terminated on or prior to the Closing Date.         (i)    Closing Date Acquisition Documents.  Receipt by the Administrative Agent of (i)  copies  of  the  Closing  Date  Acquisition  Agreement  and  all  other material  Closing  Date  Acquisition  Documents,  certified  by  an  Authorized  Officer  of  the  Borrower  as  being  true,  complete  and  correct  and  (ii)  evidence  satisfactory  to  the  Administrative  Agent  in  its  sole  discretion that (x) the Closing Date Acquisition shall have been, or substantially simultaneously  with  the  funding  of  the  initial Loans  hereunder  will  be,  consummated  in  accordance  with  the  terms  of  the  Closing  Date  Acquisition  Agreement,  without  any  material  amendment,  material                                      77 





 






      consent  or  material  waiver  (including  any  waiver  of  a  material condition  precedent  to  the       Borrower’s  or  its  applicable  Affiliate’s  obligation  to  close  under  the  Closing  Date  Acquisition       Agreement or otherwise consummate the Closing Date Acquisition) thereof except as consented       to  by  the  Administrative  Agent  and  (y)  no  Material  Adverse  Effect  (as  defined  in  the  Closing       Date Acquisition Agreement) has occurred or is continuing as of the Closing Date.               (j)    Quality of Earnings Report.  Receipt by the Administrative Agent of a quality of        earnings report of the Target in form and substance reasonably satisfactory to the Administrative        Agent.               (k)    Fees and Expenses.  The Administrative Agent shall have confirmation that all        reasonable  out-of-pocket  fees  and expenses  required  to  be  paid on  or  before  the  Closing  Date        have  been  paid,  including  the  reasonable  out-of-pocket  fees  and  expenses  of  counsel  for  the        Administrative Agent.  For purposes of determining compliance with the conditions specified in this Section 5.1, each Lender that  has  signed  this  Agreement  shall  be  deemed  to  have  consented  to,  approved  or  accepted  or  to  be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.  The  funding  of  the  initial  Loans  hereunder  shall  evidence  the  satisfaction  of  the  foregoing  conditions except to the extent the Borrower and the other Credit Parties have agreed to fulfill conditions following the Closing Date pursuant to Section 7.19.         Section 5.2  Conditions to Each Credit Extension.  The obligation of each Lender to fund its Term Loan Commitment Percentage or Revolving Commitment Percentage of any Credit Extension on any Credit Date, including the Closing Date, are subject to the satisfaction, or waiver in accordance with Section 11.4, of the following conditions precedent:               (a)    the  Administrative  Agent  shall  have  received  a  fully  executed  and  delivered        Funding Notice, together with the documentation and certifications required therein with respect        to each Credit Extension;               (b)    after  making  the  Credit  Extension  requested  on  such  Credit  Date,  (i)  the        aggregate outstanding principal amount of the Revolving Loans shall not exceed the aggregate        Revolving Commitments then in effect and (ii) the aggregate outstanding principal amount of the        Term Loans shall not exceed the respective Term Loan Commitments then in effect;               (c)    as of such Credit Date, the representations and warranties contained herein and in       the  other  Credit  Documents  shall  be  true  and  correct  in  all  material  respects  on  and  as  of that       Credit Date to the same extent as though made on and as of that date, except to the extent such       representations  and  warranties  specifically  relate  to  an  earlier  date,  in  which  case  such       representations and warranties shall have been true and correct in all material respects on and as       of such earlier date; and               (d)    as of such Credit Date, no event shall have occurred and be continuing or would       result from the consummation of the applicable Credit Extension that would constitute an Event       of Default or a Default.; and               (e)    solely  with  respect to the  funding of  Revolving  Loans and  notwithstanding        anything  herein to the  contrary,  from and after the  Fifth  Amendment  Effective Date  until the                                              78 





 






      Borrower has delivered to the Administrative Agent and the Lenders a Compliance Certificate in        form and  substance  reasonably  acceptable to the  Administrative  Agent  evidencing that the        Consolidated Leverage Ratio (calculated without giving effect to the Fifth Amendment EBITDA        Addbacks) for the two (2) most recently ended consecutive Fiscal Quarters of the Borrower does        not  exceed 3.00 to  1.00, (i) the  obligation of  each  Lender to  fund  its  Revolving  Commitment        Percentage of any Credit  Extension on any Credit Date shall be  limited to such  Lender’s        Revolving Commitment Percentage of the Limited Revolver Availability Amount and (ii) after        making the Credit  Extension  requested on such Credit  Date, (A) the Total  Revolving        Outstandings shall  not  exceed  $65,000,000 (the “Limited  Revolver  Availability  Amount”) and        (B) the Revolving Credit Exposure of each Lender shall not exceed the product of such Lender’s        Revolving Commitment Percentage multiplied by the Limited Revolver Availability Amount.   Any Agent or the Required Lenders shall be entitled, but not obligated to, request and receive, prior to the making  of  any  Credit  Extension,  additional  information  reasonably  satisfactory  to  the  requesting  party confirming  the  satisfaction  of  any  of  the  foregoing  if,  in  the reasonable  good  faith  judgment  of  such Agent or Required Lenders, such request is warranted under the circumstances.                   Section 6    REPRESENTATIONS AND WARRANTIES        In  order  to  induce  Agents  and  Lenders  to  enter  into  this  Agreement  and  to  make  each  Credit Extension to be made thereby, the Borrower and each other Credit Party represents and warrants to each Agent and Lender, on the Closing Date that the following statements are true and correct:        Section 6.1   Organization;  Requisite Power and  Authority;  Qualification.  Each of the Borrower and each of its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization as identified in Schedule 6.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where necessary  to  carry  out  its  business  and  operations,  except  in  jurisdictions  where  the  failure  to  be  so qualified  or  in  good  standing  has not  had,  and  could  not  be  reasonably  expected  to  have,  a  Material Adverse Effect.  The Credit Parties have full power and authority to own, operate and charter to others, vessels documented under the laws of the United States of America.  The Borrower and each other Credit Party is and will remain a “United States citizen” within the meaning of Section 2 of the Shipping Act and is  eligible  to  own  and  operate  vessels  in  the  coastwise  trade.   Each  Vessel  was  or  will  be  built  in  the United States, has never been rebuilt outside the United States and has never been owned by any Person other than a “United States citizen” within the meaning of the Shipping Act.        Section 6.2   Equity Interests and Ownership.  Schedule 6.2 correctly sets forth the ownership interest of the Borrower in its Subsidiaries as of the Closing Date.  The Equity Interests of each Credit Party  and  its  Subsidiaries  have  been  duly  authorized  and  validly  issued  and  is  fully  paid  and non-assessable.  Except as set forth on Schedule 6.2, as of the Closing Date, there is no existing option, warrant, call, right, commitment, buy-sell, voting trust or other shareholder agreement or other agreement to which any Subsidiary is a party requiring, and there is no membership interest or other Equity Interests of any Subsidiary outstanding which upon conversion or exchange would require, the issuance by any Subsidiary  of  any  additional  membership  interests  or other Equity Interests of any Subsidiary or other Securities  convertible  into,  exchangeable  for  or  evidencing  the  right  to  subscribe  for  or  purchase,  a membership interest or other Equity Interests of any Subsidiary.                                              79 





 






      Section 6.3   Due  Authorization.   The  execution,  delivery  and  performance  of  the  Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.         Section 6.4  No Conflict.  The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the  Credit  Documents  do  not  and  will  not  (a)  violate  in  any  material  respect  any  provision  of  any Applicable Laws relating to any Credit Party, any of the Organizational Documents of any Credit Party, or any order, judgment or decree of any court or other agency of government binding on any Credit Party; (b) except as could not reasonably be expected to have a Material Adverse Effect, conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any other Contractual Obligations of any Credit Party; (c) result in or require the creation or imposition of any Lien upon any of the  properties  or  assets  of  any  Credit  Party  (other  than  any  Liens  created  under  any  of  the  Credit Documents in favor of the Collateral Agent for the benefit of the holders of the Obligations) whether now owned  or  hereafter  acquired;  or  (d)  require  any  approval  of  stockholders,  members  or  partners  or  any approval or consent of any Person under any Contractual Obligation of any Credit Party.        Section 6.5   Governmental Consents.  The execution, delivery and performance by the Credit Parties  of  the  Credit  Documents  to  which  they  are  parties  and  the  consummation  of  the  transactions contemplated by the Credit Documents do not and will not require, as a condition to the effectiveness thereof,  any  registration  with,  consent  or  approval  of,  or  notice  to,  or  other  action  to,  with  or  by,  any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to the Collateral Agent for filing and/or recordation, as of the Closing Date and other filings, recordings or consents which have been obtained or made, as applicable.        Section 6.6   Binding  Obligation.   Each  Credit  Document  has  been  duly  executed  and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by Debtor Relief Laws or by equitable principles relating to enforceability.         Section 6.7  Financial Statements.               (a)    The audited consolidated balance sheet of the Borrower and its Subsidiaries for        the  most  recent  Fiscal  Year  ended,  and  the  related  consolidated  statements  of  income  or        operations, shareholders’ equity and cash flows for such Fiscal Year, including the notes thereto        (i) were prepared in accordance with GAAP consistently applied throughout the period covered        thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of        the  Borrower  and  its  Subsidiaries  as  of  the  date  thereof  and  their  results  of  operations  for  the        period  covered  thereby  in  accordance  with  GAAP  consistently  applied  throughout  the  period        covered  thereby,  except  as  otherwise  expressly  noted  therein;  and  (iii)  show  all  material        indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of        the date thereof, including liabilities for taxes, material commitments and Indebtedness.               (b)    The  unaudited  consolidated  balance  sheet  of  the  Borrower  and  its  Subsidiaries        for the most recent Fiscal Quarter ended, and the related consolidated statements of income or        operations,  shareholders’  equity  and  cash  flows  for  such  Fiscal  Quarter  (i)  were  prepared  in        accordance  with  GAAP  consistently  applied  throughout  the  period  covered  thereby,  except  as        otherwise expressly noted therein, (ii) fairly present the financial condition of the Borrower and        its  Subsidiaries  as  of  the  date  thereof  and  their  results  of  operations  for  the  period  covered        thereby,  subject,  in  the  case  of  clauses  (i)  and  (ii),  to  the  absence  of  footnotes  and  to  normal        year-end audit adjustments, and (iii) show all material indebtedness and other liabilities, direct or                                             80 





 






       contingent,  of  the  Borrower  and  its  Subsidiaries  as  of  the  date  of  such  financial  statements,        including liabilities for taxes, material commitments and Indebtedness.               (c)    The  consolidated  forecasted  balance  sheet  and  statements  of income  and  cash        flows of the Borrower and its Subsidiaries delivered pursuant to Section 7.1(d) were prepared in        good faith on the basis of the assumptions stated therein, which assumptions were fair in light of        the conditions existing at the time of delivery of such forecasts, and represented, at the time of        delivery, the Borrower’s best estimate of its future financial condition and performance.         Section 6.8  No Material Adverse Effect; No Default.               (a)    No Material Adverse Effect.  Since December 31, 2014, no event, circumstance        or  change  has  occurred  that  has caused  or  evidences,  either  in any  case  or  in  the  aggregate,  a        Material Adverse Effect.               (b)    No Default.  No Default has occurred and is continuing.        Section 6.9   Tax Matters.  Each Credit Party and its subsidiaries have filed all federal, state and other material tax returns and reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their respective properties, assets, income, businesses and franchises otherwise due and payable, except those being actively contested in good faith and by appropriate proceedings and for which adequate reserves have been provided  in accordance with GAAP.  There is no proposed tax assessment against any Credit Party or any of its Subsidiaries that would, if made, have a Material Adverse Effect.        Section 6.10  Properties.               (a)    Title.  Each of the Credit Parties and its Subsidiaries has (i) good, sufficient and       legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the       case of leasehold interests in real or personal property), and (iii) good title to (in the case of all       other personal property), all of their respective properties and assets reflected in their financial       statements  and  other  information  referred  to  in  Section 6.7  and  in  the  most  recent  financial        statements delivered pursuant to Section 7.1, in each case except for assets disposed of since the       date of such financial statements as permitted under Section 8.9.  All such properties and assets        are free and clear of Liens other than Permitted Liens.               (b)    Real Estate.  As of the Closing Date, Schedule 6.10(b) contains a true, accurate       and complete list of all Real Estate Assets of the Credit Parties.               (c)    Intellectual Property.  Each Credit Party and its Subsidiaries owns or is validly        licensed to use all Intellectual Property that is necessary for the present conduct of its business,        free and clear of Liens (other than Permitted Liens), without conflict with the rights of any other        Person unless the failure to own or benefit from such valid license could not, individually or in        the aggregate, reasonably be expected to have a Material Adverse Effect.  To the knowledge of        each  Credit  Party,  no  Credit  Party  nor  any  of  its  Subsidiaries is  infringing,  misappropriating,        diluting, or otherwise violating the Intellectual Property rights of any other Person unless such        infringement, misappropriation, dilution or violation could not, individually or in the aggregate,        reasonably be expected to have a Material Adverse Effect.               (d)    Vessels.  (i) The Borrower and each Credit Party is the sole owner of the whole       of the Vessel set forth opposite its name on Schedule 6.10(d).  All of the Vessels are owned by        each  of  them,  respectively,  free  and  clear  of  any  Lien  of  any  nature  whatsoever,  except  as                                             81 





 






      provided for in the Collateral Documents, and as permitted by Section 8.2.  The Fleet Mortgage,       when  duly  executed  and  delivered  by  the  relevant  Credit  Parties,  will  be  effective  to  create  in       favor of the Collateral Agent a legal, valid and enforceable Lien on all of the Credit Party’s right,       title and interest in and to the Vessel under such Fleet Mortgage and the proceeds thereof, and       when the Fleet Mortgage is filed in the offices specified on Schedule 6.10(d), the Fleet Mortgage        shall constitute a Lien on, and security interest in, all right, title and interest of the Credit Parties        in such Vessels that are subject of the Fleet Mortgage and the proceeds thereof, in each case prior        and superior in right to any other Person, other than Permitted Liens.                      (ii)   To the extent required by Applicable Law, each Vessel is : (A) classified              in the highest classification for vessels of the same age and type in the American Bureau              of Shipping (or other classification society acceptable to the Administrative Agent) and is              in class without recommendation; (B) documented in the name of the respective Credit              Party,  (C)  duly  qualified  to  operate  in  the  coastwise  trade  of the  United  States,  (D)              eligible to transport cargo between ports in the United States under the Merchant Marine              Act of 1920, (E) built in the United States and has been continuously owned and operated              by a citizen of the United States, within the meaning of Section 2 of the Shipping Act, (F)              covered  by  hull  and  protection and  indemnity  and  mortgagee’s  interest  insurance  in              accordance  with  the  requirements  of  this  Agreement  and  the  Fleet  Mortgage  covering              such  Vessel,  and  otherwise  satisfactory  to  the  Collateral  Agent;  (G)  endorsed  and              documented in accordance with applicable legal requirements, including, in the case of              new Vessels, filings for all Vessels with the United States Coast Guard, National Vessel              Documentation  Center,  an  Application  for  Documentation,  on  form  CG-1258,              satisfactory to the Collateral Agent and its counsel, seeking documentation of the Vessel              in  the  name  of  the  applicable  Credit  Party  as  a  vessel  of  the  United  States  eligible  to              engage in the coastwise trade, (H) subject to a valid certificate of inspection issued by the              United  States  Coast  Guard,  and  each  such  certificate  of  inspection  is  in  full  force  and              effect  without  recommendation  and  (I)  has  been  issued  a  Builder’s  Certification  by              Builder, on form CG-1261, or if such new Vessel has been previously documented in the              name  of  Builder,  is  subject  to  a  Bill  of  Sale,  on  form  CG-1340,  satisfactory  to  the              Collateral  Agent,  sufficient  (when  filed  with  the  United  States  Coast  Guard,  National              Vessel  Documentation  Center),  to  vest  good  title  to  the  New  Vessel  in  the  applicable              Credit Party, free and clear of all Liens (other than Permitted Liens).        Section 6.11  Environmental Matters.  No Credit Party nor any of its Subsidiaries nor any of their respective current Facilities (solely during and with respect to such Person’s ownership thereof) or operations,  and  to  their  knowledge,  no  former  Facilities  (solely  during  and  with  respect  to  any  Credit Party’s  or  its  Subsidiary’s  ownership  thereof),  are  subject  to any  outstanding  order,  consent  decree  or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; (b) no Credit Party nor any of its Subsidiaries has received any letter or request  for  information  under  Section  104  of  the  Comprehensive Environmental  Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law; (c) there are and, to each Credit Party’s and its Subsidiaries’ knowledge, have been, no Hazardous Materials Activities which could reasonably be expected to form the basis of an Environmental Claim against such Credit Party or any  of  its  Subsidiaries  that,  individually  or  in  the  aggregate,  could  reasonably  be  expected  to  have  a Material Adverse Effect; (d) no Credit Party nor any of its Subsidiaries has filed any notice under any Environmental  Law  indicating past or present treatment of Hazardous Materials at any Facility (solely during  and  with  respect  to  such  Credit  Party’s  or  its  Subsidiary’s  ownership  thereof),  and  neither  the Borrower’s  nor  any  of  its  Subsidiaries’  operations  involves  the  generation,  transportation,  treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any equivalent state                                             82 





 






rule  defining  hazardous  waste.   Compliance  with  all  current  requirements  pursuant  to  or  under Environmental  Laws  could  not  be  reasonably  expected  to  have,  individually  or  in  the  aggregate,  a Material Adverse Effect.         Section 6.12 No  Defaults.   No  Credit  Party  nor  any  of  its  Subsidiaries  is  in  default  in the performance,  observance  or  fulfillment  of  any  of  the  obligations, covenants or conditions contained in any of its Contractual Obligations (other than Contractual Obligations relating to Indebtedness), except in each  case  where  the  consequences,  direct  or  indirect,  of  such  default  or  defaults,  if  any,  could  not reasonably be expected to have a Material Adverse Effect.         Section 6.13 No Litigation or other Adverse Proceedings.  There are no Adverse Proceedings that  (a)  purport  to  affect  or  pertain  to  this  Agreement  or  any other  Credit  Document,  or  any  of  the transactions contemplated hereby or (b) could reasonably be expected to have a Material Adverse Effect. Neither  the  Borrower  nor  any  of  its  Subsidiaries  is  subject  to or  in  default  with  respect  to  any  final judgments,  writs,  injunctions,  decrees,  rules  or  regulations  of  any  Governmental  Authority,  that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.         Section 6.14 Information Regarding the Borrower and its Subsidiaries.  Set forth on Schedule  6.14, is the jurisdiction of organization, the exact legal name (and for the prior five (5) years or since the date of its formation has been) and the true and correct U.S. taxpayer identification number (or foreign equivalent, if any) of the Borrower and each of its Subsidiaries as of the Closing Date.        Section 6.15  Governmental Regulation.               (a)    No  Credit  Party  nor  any  of  its  Subsidiaries  is  subject  to  regulation  under  the       Investment Company Act of 1940.  No Credit Party nor any of its Subsidiaries is an “investment       company”  or  a  company  “controlled”  by  a  “registered  investment company”  or  a  “principal       underwriter” of a “registered investment company” as such terms are defined in the Investment       Company Act of 1940.               (b)    No  Credit  Party  nor  any  of  its  Subsidiaries  is  an  “enemy”  or  an  “ally  of  the       enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States       of America (50 U.S.C. App. §§ 1 et seq.), as amended.  To its knowledge, no Credit Party nor any        of its Subsidiaries is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of        the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle        B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c)        the Patriot Act.  No Credit Party nor any of its Subsidiaries (i) is a blocked person described in        Section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings        or transactions, or is otherwise associated, with any such blocked person.               (c)    None of the Credit Parties or their Subsidiaries or their respective Affiliates is in        violation of and shall not violate any of the country or list based economic and trade sanctions        administered  and  enforced  by  OFAC    that  are  described  or  referenced  at        http://www.ustreas.gov/offices/enforcement/ofac/http://www.ustreas.gov/offices/enforcement/ofa       c/ or as otherwise published from time to time.               (d)    None of the Credit Parties or their Subsidiaries or their respective Affiliates (i) is       a  Sanctioned  Person  or  a  Sanctioned  Entity,  (ii)  has  more  than ten  percent  (10%)  of  its  assets       located  in  Sanctioned  Entities,  or  (iii)  derives  more  than  ten percent  (10%)  of  its  operating       income from investments in, or transactions with Sanctioned Persons or Sanctioned Entities.  The       proceeds of any Loan will not be used and have not been used to fund any operations in, finance                                             83 





 






      any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned       Entity.               (e)    Each Credit Party and its Subsidiaries is in compliance with the Foreign Corrupt       Practices  Act,  15  U.S.C.  §§ 78dd-1, et seq., and any foreign counterpart thereto.  None of the       Credit Parties or their respective Subsidiaries has made a payment, offering, or promise to pay, or        authorized  the  payment  of,  money  or  anything  of  value  (a)  in  order  to  assist  in  obtaining  or        retaining business for or with, or directing business to, any foreign official, foreign political party,        party official or candidate for foreign political office, (b) to a foreign official, foreign political        party  or  party  official  or  any  candidate  for  foreign  political office,  and  (c)  with  the  intent  to        induce the recipient to misuse his or her official position to direct business wrongfully to such        Credit Party or any of its Subsidiaries or to any other Person, in violation of the Foreign Corrupt        Practices Act, 15 U.S.C. §§ 78dd-1, et seq.               (f)    To the extent applicable, each Credit Party and its Subsidiaries are in compliance        with Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept        and Obstruct Terrorism (USA Patriot Act of 2001) (as amended from time to time, the “Patriot        Act”).               (g)    No Credit Party or any of its Subsidiaries is engaged principally, or as one of its        important activities, in the business of extending credit for the purpose of purchasing or carrying        any Margin Stock.  No part of the proceeds of any Credit Extension made to such Credit Party        will be used (i) to purchase or carry any such Margin Stock or to extend credit to others for the        purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is        inconsistent  with,  the  provisions  of  Regulation  T,  U  or  X  of  the  Board  of  Governors  of  the        Federal  Reserve  System  as  in  effect  from  time  to  time  or  (ii)  to  finance  or  refinance  any  (A)        commercial  paper  issued  by  such  Credit  Party  or  (B)  any  other  Indebtedness,  except  for        Indebtedness that such Credit Party incurred for general corporate or working capital purposes.         Section 6.16 Employee Matters.  No Credit Party nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice complaint pending against any Credit Party or any of its Subsidiaries, or to the best knowledge  of  each  Credit  Party,  threatened  against  any  of  them before  the  National  Labor  Relations Board  and  no  grievance  or  arbitration  proceeding  arising  out  of  or  under  any  collective  bargaining agreement that is so pending against any Credit Party or any of its Subsidiaries or to the best knowledge of each Credit Party, threatened against any of them, (b) no strike or work stoppage in existence or to the knowledge of each Credit Party, threatened that involves any Credit Party or any of its Subsidiaries, and (c) to the best knowledge of each Credit Party, no union representation question existing with respect to the employees of any Credit Party or any of its Subsidiaries and, to the best knowledge of each Credit Party, no union organization activity that is taking place, except (with respect to any matter specified in clause (a),  (b)  or  (c)  above,  either  individually  or  in  the  aggregate)  such  as  could not  reasonably  be expected to have a Material Adverse Effect.        Section 6.17  Pension Plans.  (a) Except as could not reasonably be expected to have a Material Adverse  Effect,  each  of  the  Credit  Parties  and  their  Subsidiaries  are  in  compliance  with  all  applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to its Pension Plan, and have performed all their obligations under each  Pension  Plan  in  all  material  respects,  (b)  each  Pension  Plan  which  is  intended  to  qualify  under Section 401(a) of the Internal Revenue Code has received a favorable determination letter or is the subject of a favorable opinion letter from the Internal Revenue Service indicating that such Pension Plan is so qualified and, to the best knowledge of the Credit Parties, nothing has occurred subsequent to the issuance                                             84 





 






of such determination letter which would cause such Pension Plan to lose its qualified status except where such event could not reasonably be expected to result in a Material Adverse Effect, (c) except as could not reasonably be expected to have a Material Adverse Effect, no liability to the PBGC (other than required premium payments), the Internal Revenue Service, any Pension Plan (other than for routine claims and required funding obligations in the ordinary course) or any trust established under Title IV of ERISA has been incurred by any Credit Party, any of its Subsidiaries or any of their ERISA Affiliates, (d) except as would not reasonably be expected to result in liability to the Borrower or any of its Subsidiaries in excess of $2,000,000, no ERISA Event has occurred, and (e) except to the extent required under Section 4980B of the Internal Revenue Code and Section 601 et seq. of ERISA or similar state laws and except as could not reasonably be expected to have a Material Adverse Effect, no Pension Plan provides health or welfare benefits  (through  the  purchase  of  insurance  or  otherwise)  for  any  retired  or  former  employee  of  the Borrower or any of its Subsidiaries.         Section 6.18 Solvency.   The  Borrower,  individually,  and  the  Borrower  and  its  Subsidiaries taken as a whole on a consolidated basis are and, upon the incurrence of any Credit Extension on any date on which this representation and warranty is made, will be, Solvent.        Section 6.19  Compliance with Laws.  Each Credit Party and its Subsidiaries is in compliance with (a) the Patriot Act and OFAC rules and regulations as provided in Section 6.15 and (b) except such non-compliance  with  such  other  Applicable  Laws  that,  individually  or  in  the  aggregate,  could  not reasonably be expected to result in a Material Adverse Effect, all other Applicable Laws.  Each Credit Party  and  its  Subsidiaries  possesses  all  certificates,  authorities  or  permits  issued  by  appropriate Governmental  Authorities  necessary  to  conduct  the  business  now operated  by  them  and  the  failure  of which to have could reasonably be expected to have a Material Adverse Effect and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit the failure of which to have or retain could reasonably be expected to have a Material Adverse Effect.         Section 6.20 Disclosure.  No representation or warranty of any Credit Party contained in any Credit Document or in any other documents, certificates or written statements furnished to the Lenders by or  on  behalf  of  the  Borrower  or  any  of  its  Subsidiaries  for  use  in  connection  with  the  transactions contemplated  hereby  (other  than  projections  and  pro  forma  financial  information  contained  in  such materials) contains any untrue statement of a material fact or omits to state a material fact (known to any Credit Party, in the case of any document not furnished by any of them) necessary in order to make the statements contained herein or therein not misleading in any material manner in light of the circumstances in which the same were made.  Any projections and pro forma financial information contained in such materials  are  based  upon  good  faith  estimates  and  assumptions  believed  by  the  Credit  Parties  to  be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results and that such differences may be material.  There are no facts known to any Credit Party (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect  and  that  have  not  been  disclosed  herein  or  in  such  other  documents,  certificates  and  statements furnished to the Lenders.         Section 6.21 Insurance.  (a)  The properties of the Credit Parties and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of such Persons, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Credit Party or the applicable Subsidiary operates.  The insurance coverage of the Borrower and its Subsidiaries as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, amount and deductibles on Schedule 6.21.                                             85 





 






             (b)    The  Borrower  and  the  Credit  Parties  shall  ensure  that  insurance  policies       pertaining to Vessels provide that (i) there shall be no recourse against the Collateral Agent for       the  payment  of  premiums,  commissions  or  deductibles,  (ii)  if  such  policies  provide  for  the       payment of club calls, assessments or advances, there shall be no recourse against the Collateral       Agent for the payment thereof and (iii) to the extent obtainable from underwriters or brokers, the       Collateral  Agent  will  receive  at  least  fourteen  (14)  days  written  notice  from  the  insurance       company  or  broker  prior  to  cancellation  or  any  material  alteration  in  the  insurance  policy  or       reduction in coverage which could materially affect the interest of the Collateral Agent.               (c)    Should  any  Vessel  be  navigated  outside  her  customary  navigation  limits,  the        Borrower  shall,  prior  to  any  such  navigation,  procure  an  endorsement  to  the  policies  obtained        hereunder  authorizing  such  navigation,  and  procure  increased  value,  war  risk  and  related        coverages as may be reasonably required by the Collateral Agent.               (d)    Should the Borrower or any Subsidiary fail to obtain any insurance referred to       herein,  the  Borrower  shall  give  the  Collateral  Agent  written  notice  of  such  fact,  endeavor  to       obtain such insurance and detain such Vessel in port until such insurance has been obtained.        Section 6.22  Pledge  Agreement and  Security  Agreement.   The  Pledge  Agreement  and  the Security Agreement are effective to create in favor of the Collateral Agent, for the ratable benefit of the holders  of  the  Obligations,  a  legal,  valid  and  enforceable  security  interest  in  the  Collateral  identified therein, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law), and the Pledge Agreement and the Security Agreement shall create a fully perfected Lien on, and security interest in, all right, title and interest of the obligors thereunder in such Collateral, in each case prior and superior in right to any other Lien (i) with respect to any such Collateral that  is  a  “security” (as such term is defined in the UCC) and is evidenced by a certificate, when such Collateral is delivered to the Collateral Agent with duly executed stock powers with respect thereto, (ii) with respect to any such Collateral that is a “security” (as such term is defined in the UCC) but is not evidenced  by  a  certificate,  when  UCC  financing  statements  in  appropriate  form  are  filed  in  the appropriate filing offices in the jurisdiction of organization of the pledgor or when “control” (as such term is defined in the UCC) is established by the Collateral Agent over such interests in accordance with the provision  of  Section  8-106  of  the  UCC,  or  any  successor  provision,  and  (iii)  with respect to any such Collateral that is not a “security” (as such term is defined in the UCC), when UCC financing statements in appropriate form are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor (to the extent such security interest can be perfected by filing under the UCC).         Section 6.23 [Reserved].        Section 6.24  Vessel Qualification.  To the extent required by Applicable Law, the Borrower maintains in its possession, or causes each Credit Party to maintain in its possession, a current SMC for each  Vessel,  a  DOC  for  the  operator  of  each  Vessel  and  a  United  States  Coast  Guard  Certificate  of Financial Responsibility (Water Pollution) with respect to each Vessel.  Upon reasonable request of the Administrative Agent at any time and from time to time, the Borrower shall deliver confirmation to the Administrative Agent that each of the foregoing certificates is in force and effect.  Neither the Borrower nor any Credit Party requires an ISSC to operate any Vessel for the intended domestic coastal trade of the Vessels.                         Section 7    AFFIRMATIVE COVENANTS                                              86 





 






      Each Credit Party covenants and agrees that until the Obligations shall have been paid in full or otherwise satisfied, and the Commitments hereunder shall have expired or been terminated, such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 7.         Section 7.1  Financial  Statements and Other  Reports.   The  Borrower  will  deliver,  or  will cause to be delivered, to the Administrative Agent and each of the Lenders:               (a)    Quarterly  Financial  Statements for the  Borrower and  its  Subsidiaries.   Within       forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year (excluding the fourth       Fiscal Quarter) or the date such information is filed with the SEC, the consolidated balance sheets       of  the  Borrower  and  its  Subsidiaries  as  at  the  end  of  such  Fiscal  Quarter  and  the  related       consolidated statements of income, stockholders’ equity and cash flows of the Borrower and its       Subsidiaries  for  such  Fiscal  Quarter  and  for  the  period  from  the  beginning  of  the  then  current       Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the       corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable       detail and consistent in all material respects with the manner of presentation as of the Closing        Date, together with a Financial Officer Certification with respect thereto;               (b)    Audited  Annual  Financial  Statements for the  Borrower and  its  Subsidiaries.       Upon  the  earlier  of  the  date  that  is  ninety  (90)  days  after  the  end  of  each  Fiscal  Year  of  the       Borrower or the date such information is filed with the SEC, (i) the consolidated  balance sheets       of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the related consolidated       statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries       for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for       the  previous  Fiscal  Year,  in  reasonable  detail  and  consistent  in  all  material  respects  with  the       manner  of  presentation  as  of  the  Closing  Date,  together  with  a Financial  Officer  Certification       with  respect  thereto;  and  (ii)  with  respect  to  such  consolidated  financial  statements  a  report       thereon of Grant Thornton LLP or other independent certified public accountants of recognized       national standing selected by the Borrower, which report shall be unqualified as to going concern       and scope of audit, and shall state that such consolidated financial statements fairly present, in all       material respects, the consolidated financial position of the Borrower and its Subsidiaries as at the       dates indicated and the results of  their operations and their cash flows for the periods indicated in       conformity  with  GAAP  applied  on  a  basis  consistent  with  prior  years  (except  as  otherwise       disclosed  in  such  financial  statements)  and  that  the  examination  by  such  accountants  in       connection  with  such  consolidated  financial  statements  has  been  made  in  accordance  with       generally accepted auditing standards);               (c)    Compliance Certificate.  Together with each delivery of the financial statements       pursuant to clauses (a) and (b) of Section 7.1 a duly completed Compliance Certificate;               (d)    Annual Budget.  Within thirty (30) days following the end of each Fiscal Year of       the Borrower, forecasts prepared by management of the Borrower, in form reasonably satisfactory       to  the  Administrative  Agent  and  the  Required  Lenders,  of  consolidated  balance  sheets  and       statements  of  income  or  operations  and  cash  flows  of  the  Borrower  and  its  Subsidiaries  on  a       quarterly basis for the immediately following Fiscal Year (including the Fiscal Year(s) in which       the Term Loan Maturity Date, the maturity date of any Term Loan established after the Closing       Date and the Revolving Commitment Termination Date occur);               (e)    Information  Regarding  Collateral.   (a)  Each  Credit  Party  will  furnish  to  the       Collateral Agent prior written notice of any change (i) in such Borrower’s legal name, (ii) in such                                              87 





 






Borrower’s  corporate  structure,  or  (iii)  in  such  Borrower’s  Federal  Taxpayer  Identification Number;         (f)    Securities and Exchange Commission Filings.  Promptly after the same are filed,  copies  of  all  annual,  regular,  periodic  and  special  reports  and  registration  statements  that  the  Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange  Act, provided that any documents required to be delivered pursuant to this Section 7.1(f) shall be  deemed to have been delivered on the date (i) on which the Borrower posts such documents, or  provides a link thereto on the Borrower’s website; or (ii) on which such documents are posted on  the Borrower’s behalf on Syndtrak or another relevant website, if any to which each Lender and  the  Administrative  Agent  have  access  (whether  a  commercial,  third-party  website  or  whether  sponsored by the Administrative Agent); provided further that: (x) upon written request by the  Administrative  Agent,  the  Borrower  shall  deliver  paper  copies  of  such  documents  to  the  Administrative  Agent  for  further  distribution  to  each  Lender  until  a  written  request  to  cease  delivering paper copies is given by the Administrative Agent and (y) the Borrower shall notify  (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any  such documents and provide to the Administrative Agent by electronic mail electronic versions  (i.e.,  soft  copies)  of  such  documents.   Notwithstanding  anything  to  the  contrary,  as  to  any  information contained in materials furnished pursuant to this Section 7.1(f), the Borrower shall  not  be  separately  required  to  furnish  such  information  under  Sections 7.1(a)  or  (b)  above  or  pursuant to any other requirement of this Agreement or any other Credit Document.         (g)    Notice of Default and Material Adverse Effect.  Promptly upon any Authorized  Officer of any Credit Party obtaining knowledge (i) of any condition or event that constitutes a  Default  or  an  Event  of  Default  or  that  notice  has  been  given  to  any  Credit  Party  with  respect  thereto; (ii) that any Person has given any notice to any Credit Party or any of its Subsidiaries or  taken any other action with respect to any event or condition set forth in Section 9.1(b), or (iii)  the occurrence of any Material Adverse Effect, a certificate of its Authorized Officers specifying  the nature and period of existence of such condition, event or change, or specifying the notice  given  and  action  taken  by  any  such  Person  and  the  nature  of  such  claimed  Event  of  Default,  Default, event or condition or change, and what action the Credit Parties have taken, are taking  and propose to take with respect thereto;         (h)    ERISA.  (i) Promptly upon becoming aware of the occurrence of or forthcoming  occurrence of any ERISA Event, a written notice specifying the nature thereof, what action the  any Credit Party, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is  taking or proposes to take with respect thereto and, when known, any action taken or threatened  by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and  (ii) (1) promptly upon reasonable request of the Administrative Agent, copies of each Schedule B  (Actuarial Information) to the annual report (Form 5500 Series) filed by any Credit Party, any of  its Subsidiaries or any of their respective ERISA Affiliates with respect to each Pension Plan; and  (2)  promptly  after  their  receipt,  copies  of  all  notices  received  by  any  Credit  Party,  any  of  its  Subsidiaries  or  any  of  their  respective  ERISA  Affiliates  from  a  Multiemployer  Plan  sponsor  concerning an ERISA Event;         (i)    Securities and  Exchange  Commission  Filings.   Promptly  after  the  same  are available,  copies  of  each  annual  report,  proxy  or  financial  statement  or  other  report  or communication  sent  to  the  stockholders  of  the  Borrower,  and  copies  of  all  annual,  regular, periodic and special reports and registration statements that the Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;                                       88 





 






             (j)    Securities and Exchange Commission Investigations.  Promptly, and in any event       within five (5) Business Days after receipt thereof by any Credit Party or any Subsidiary thereof,       copies  of  each  notice  or  other  correspondence  received  from  the  Securities  and  Exchange       Commission  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction)  concerning  any       investigation  or  possible  investigation  or  other  inquiry  by  such  agency  regarding  financial  or       other operational results of any Credit Party or any Subsidiary thereof; and               (k)    Other  Information.   (i)  Promptly  upon  their  becoming  available,  copies  of  all       financial statements, reports, notices and proxy statements sent or made available generally by the       Borrower to its security holders acting in such capacity or by any Subsidiary of the Borrower to       its  security  holders,  if  any,  other  than  the  Borrower  or  another  Subsidiary  of  the  Borrower,       provided  that  no  Credit  Party  shall  be  required  to  deliver  to  the  Administrative  Agent  or  any        Lender the minutes of any meeting of its Board of Directors, and (ii) such other information and        data  with  respect  to  the  Borrower  or  any  of  its  Subsidiaries  as  from  time  to  time  may  be        reasonably requested by the Administrative Agent or the Required Lenders.         Each notice pursuant to clauses (h) and (i) of this Section 7.1 shall be accompanied by a statement of an Authorized Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower and/or the other applicable Credit Party has taken and proposes to take with respect thereto.  Each notice pursuant to Section 7.1(g) shall describe with particularity any and all provisions of this Agreement and any other Credit Document that have been breached.         Section 7.2  Existence.  Each Credit Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business, except to the extent permitted by Section 8.9 or not constituting an Asset Sale hereunder.         Section 7.3  Payment of Taxes and Claims.  Each Credit Party will, and will cause each of its Subsidiaries to, pay (a) all federal, state and other material taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon and (b) all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, no such tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and  diligently  conducted,  so  long  as  (i)  adequate  reserve  or  other  appropriate  provision,  as  shall  be required in conformity with GAAP shall have been made therefor, and (ii) in the case of a tax or claim which  has  or  may  become  a  Lien  against  any  of  the  Collateral,  such  contest  proceedings  conclusively operate to stay the sale of any portion of the Collateral to satisfy such tax or claim.  The Borrower will not, nor will it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than any the Borrower or any Subsidiary).         Section 7.4  Maintenance of  Properties.   Each  Credit  Party  will,  and  will  cause  each  of  its Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of any Credit Party and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof.        Section 7.5   Insurance.   The  Credit  Parties  will  maintain  or  cause  to  be  maintained, with financially sound and reputable insurers, property insurance, such public liability insurance, third party property damage insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the each Credit Party and its Subsidiaries as may customarily be carried or maintained                                             89 





 






under similar circumstances by Persons of established reputation engaged in similar businesses, in each case  in  such  amounts,  with  such  deductibles,  covering  such  risks  and  otherwise  on  such  terms  and conditions as shall be customary for such Persons; provided that the Borrower and each of its Subsidiaries shall maintain at all times pollution legal liability insurance with coverage amounts equal to or greater than,  deductibles  no  greater  than,  and  otherwise  with  terms  and  conditions  no  less  favorable  to  the Lenders than, the pollution legal liability insurance in effect as of the Closing Date.  Without limiting the generality  of  the  foregoing,  each  of  the  Borrower  and  its  Subsidiaries  will  maintain  or  cause  to  be maintained (a) flood insurance with respect to each Flood Hazard Property, if any, that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, and (b) replacement value  casualty  insurance  on  the  Collateral  under  such  policies of  insurance,  with  such  insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained  under  similar  circumstances  by  Persons  of  established  reputation  engaged  in  similar businesses.  Each such policy of insurance shall (i) name the Collateral Agent, on behalf of the holders of the Obligations, as an additional insured thereunder as its interests may appear, and (ii) in the case of each property insurance policy, contain a loss payable clause or endorsement, reasonably satisfactory in form and substance to the Collateral Agent, that names the Collateral Agent, on behalf of the holders of the Obligations, as the loss payee thereunder and provides for at least thirty (30) days’ prior written notice (or such shorter prior written notice as may be agreed by the Collateral Agent in its reasonable discretion) to the Collateral Agent of any modification or cancellation of such policy.        Section 7.6   Inspections.  Each Credit Party will, and will cause each of its Subsidiaries to, permit representatives and independent contractors of the Administrative Agent, the Collateral Agent and each Lender to visit and inspect any of its properties, to conduct field audits, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of  the  Borrower  and  at  such  reasonable  times  during  normal  business  hours  and  as  often  as  may  be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that so long as no  Event  of  Default  exists,  the  Borrower  shall  not  be  obligated  to  pay  for  more  than  one  (1)  such inspection per year and that when an Event of Default exists the Administrative Agent or any Lender (or any  of  their  respective  representatives  or  independent  contractors)  may  do  any  of  the  foregoing  at  the expense of the Borrower at any time during normal business hours and without advance notice.         Section 7.7  Lenders  Meetings.   The  Borrower  will,  upon  the  request  of the Administrative Agent  or  the  Required  Lenders,  participate  in  a  meeting  of  the Administrative  Agent  and  the  Lenders once during each Fiscal Year to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and the Administrative Agent) at such time as may be agreed to by the Borrower and the Administrative Agent.         Section 7.8  Compliance with Laws and Material Contracts.  Each Credit Party will comply, and shall cause each of its Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with (a) the Patriot Act and OFAC rules and regulations, (b) all other Applicable Laws and (c) all Material Contracts, noncompliance with, with respect to clauses (b) and (c), could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.        Section 7.9   Use of  Proceeds.   The  Credit  Parties  will  use  the  proceeds  of  the  Credit Extensions (a) on the (a) Closing Date (i) to finance the Closing Date Acquisition on the Closing Date, (ii)  for  general  corporate  and  working  capital  purposes  or  for capital  expenditures,  (iii)  to  refinance simultaneously with the closing of this Agreement certain existing Indebtedness that such Credit Party incurred for working capital or general corporate purposes, (iv) to finance Permitted Acquisitions and to pay  fees,  costs  and  expenses  in  connection  therewith,  whether  or  not  consummated  and/or  (v)  to  pay                                             90 





 






transaction fees, costs and expenses related to credit facilities established pursuant to this Agreement and the  other  Credit  Documents,  in  each  case  not  in  contravention  of  Applicable  Laws  or  of  any  Credit Document and, (b) on the Fourth Amendment Effective Date (i) for general corporate and working capital purposes,  (ii)  to  finance  Permitted  Acquisitions  and  to  pay  fees,  costs  and  expenses  in  connection therewith, whether or not consummated and/or (iii) to pay transaction fees, costs and expenses related to credit facilities established pursuant to the Fourth Amendment not in contravention of Applicable Laws or of  any  Credit  Document and (c)  from and after the  Fifth  Amendment  Effective Date (i) for  general  corporate and  working  capital  purposes,  (ii) to  finance  Permitted  Acquisitions (to the extent  permitted  hereunder) and to pay  fees, costs and  expenses in  connection  therewith, whether or  not  consummated  and/or  (iii) to pay  transaction  fees, costs and  expenses  related to the  consummation of the  Fifth  Amendment  not in  contravention of  Applicable Laws or of any Credit  Document..   No  portion  of  the proceeds  of  any  Credit  Extension  shall  be  used  (i)  to  refinance  any  commercial  paper,  or  (ii)  in  any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System as in effect from time to time or any other regulation thereof or to violate the Exchange Act.        Section 7.10  Environmental Matters.               (a)    Environmental Disclosure.  Each Credit Party will deliver to the Administrative       Agent  and  the  Lenders  with  reasonable  promptness,  such  documents  and  information  as  from       time to time may be reasonably requested by the Administrative Agent or any Lender.               (b)    Hazardous Materials Activities, Etc.  The Borrower shall promptly take, and shall        cause  each  of  its  Subsidiaries  promptly  to  take,  any  and  all  actions  necessary  to  (i)  cure  any        violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that would        reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and        (ii) respond to any Environmental Claim against such Credit Party or any of its Subsidiaries and        discharge  any  obligations  it  may  have  to  any  Person  thereunder where  failure  to  do  so  would        reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.         Section 7.11 [Reserved]Real Estate Assets.               (a)    In the event the Credit Parties breach any of the financial covenants set forth in        Section 8.8, then, within forty-five (45) days (or such longer period as may be agreed in writing        by the Collateral Agent) after the Administrative Agent’s request, the Credit Parties shall take all        such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages,        documents, instruments, agreements, opinions and certificates similar to those described in clause        (b) immediately below that the Collateral Agent shall reasonably request to create in favor of the        Collateral  Agent, for the  benefit of the  holders of the  Obligations, a  valid  and,  subject to any        filing and/or recording referred to herein, enforceable Lien on, and security interest in each Real        Estate Asset having a fair market value greater than or equal to $1,500,000.  The Administrative        Agent may, in  its  reasonable  judgment, grant  extensions of  time for  compliance or  exceptions        with the provisions of this Section 7.11 by any Credit Party.  In addition to the foregoing, the        applicable Credit Party shall, at the request of the Required Lenders, deliver, from time to time, to        the  Administrative  Agent such  appraisals as are  required by law or  regulation of  Real  Estate        Assets with respect to which the Collateral Agent has been granted a Lien.               (c)    In order to create in favor of the Collateral Agent, for the benefit of the holders of        the Obligations, a valid and, subject to any filing and/or recording referred to herein, enforceable        Lien on, and security interest in, any applicable Real Estate Asset that is prior and superior in        right to any other Lien (other than Permitted Liens), the Administrative Agent and the Collateral                                              91 





 






Agent  (with  copies  sufficient for  each  Lender) shall have  received  from the  Borrower, to the  extent requested by the Administrative Agent, with respect to such Real Estate Asset:                (i)   fully executed and notarized Mortgages, in proper form for recording in         all appropriate places in all applicable jurisdictions, encumbering such Real Estate Asset;                (ii)  an opinion of counsel (which counsel shall be reasonably satisfactory to         the Collateral Agent) in each state in which such Real Estate Asset is located with respect         to the enforceability of the form(s) of Mortgages to be recorded in such state and such         other matters as the Collateral Agent may reasonably request, in each case in form and         substance reasonably satisfactory to the Collateral Agent;                (iii) (a)  ALTA  mortgagee  title  insurance  policies or  unconditional         commitments therefor issued by one or more title companies reasonably satisfactory to         the Collateral Agent (each, a “Title Policy”) with respect to such Real Estate Asset, in         amounts not less than the fair market value of such Real Estate Asset, together with a title         report  issued by a  title  company  with  respect thereto and  copies of all  recorded         documents listed as exceptions to title or otherwise referred to therein, each in form and         substance  reasonably  satisfactory to the  Collateral  Agent and (b)  evidence  reasonably         satisfactory to the Collateral Agent that such Borrower has paid to the title company or to         the  appropriate  Governmental  Authorities all  expenses and premiums of the  title         company and all other sums required in connection with the issuance of each Title Policy         and all  recording and stamp  taxes  (including mortgage  recording and  intangible  taxes)         payable in  connection  with  recording the Mortgage for such  Real  Estate  Asset in the         appropriate real estate records;                (iv)  a recently issued flood zone determination certificate;                (v)   evidence of flood insurance with respect to each Flood Hazard Property         that is located in a community that participates in the National Flood Insurance Program,         in each case in compliance with clause (d) of this Section 7.11;               (vi)   if an exception to the Title Policy with respect to any Real Estate Asset         subject to a Mortgage would arise without such ALTA surveys, ALTA surveys of such         Real Estate Asset;                 (vii) reports and other reasonable information, in form, scope and substance         reasonably  satisfactory to the  Administrative  Agent,  regarding  environmental  matters         relating to such Real Estate Asset; and                (viii) such other  documents,  agreements certificates and other information as         the Administrative Agent or the Collateral Agent may require to carry out the purposes of         this Section 7.11, in each case, in form, scope and substance reasonably satisfactory to         the Administrative Agent.         (c)    Each of the  parties  hereto  acknowledges and  agrees that, if there are any  Real  Estate  Assets  subject to  Mortgages, any  increase,  extension or  renewal of any of the  Commitments or Loans (including, without limitation, any increase in Commitments or additional  Loans incurred pursuant to Section 2.1(d) or any other incremental credit facilities hereunder, but  excluding (i) any  continuation or  conversion of  Borrowings,  (ii) the making of any  Revolving  Loans or  (iii) the  issuance,  renewal or  extension of  Letters of  Credit) shall be  subject to (and  conditioned  upon): (1) the prior  delivery of all  flood  hazard  determination  certifications,                                        92 





 






acknowledgements and evidence of flood insurance with respect to each Flood Hazard Property,  in  each  case in  compliance  with any  applicable  regulations of the Board of  Governors of the  Federal Reserve System, in form and substance reasonably satisfactory to the Collateral Agent,  and such other flood-related documentation as otherwise reasonably required by the Lenders and  (2) the  Administrative  Agent shall have  received  written  confirmation  from the  Lenders,  confirming that  flood  insurance  due  diligence and  flood  insurance  compliance has  been  completed by the  Lenders  (such  written  confirmation  not to be  unreasonably  withheld,  conditioned or delayed).         (d)    With respect to each Flood Hazard Property, the applicable Credit Party (i) shall  have  obtained and  will  maintain,  with  financially  sound and  reputable  insurance  companies  (except to the extent that any insurance company insuring the applicable Real Estate Asset of the  Credit Party  ceases to be  financially sound and  reputable after the  Fifth  Amendment  Effective  Date, in which  case, the  Borrower shall  promptly  replace such  insurance  company  with a  financially  sound and  reputable  insurance  company), such  flood  insurance in such  reasonable  total  amount as the  Administrative  Agent and the  Lenders may  from  time to  time  reasonably  require, and otherwise sufficient to comply with all applicable rules and regulations promulgated  pursuant to  Applicable  Laws,  including,  without  limitation, any  applicable  regulations of the  Board of  Governors of the  Federal  Reserve System, and  (ii)  promptly  upon  request of the  Administrative  Agent or any  Lender,  will  deliver to the  Collateral  Agent or such  Lender, as  applicable,  evidence of such  compliance in form and  substance  reasonably  acceptable to the  Collateral Agent or such Lender, including, without limitation, evidence of annual renewals of  such insurance.         (e)    Notwithstanding the  foregoing,  neither the  Administrative  Agent  nor the  Collateral Agent shall enter into or permit any Mortgage to be recorded in respect of any Real  Estate  Asset  acquired after the  Fifth  Amendment  Effective Date  until (i) the date that  occurs  forty-five (45) days after the Administrative Agent has delivered to the Lenders (which may be  delivered  electronically) the  following  documents in  respect of such  Real  Estate  Asset: (A) a  completed flood hazard determination from a third party vendor; (B) if such Real Estate Asset is a  Flood Hazard Property, (1) a notification to the Borrower (or applicable Credit Party) of that fact  and (if applicable) notification to the Borrower (or applicable Credit Party) that flood insurance  coverage is not available and (2) evidence of the receipt by the Borrower (or applicable Credit  Party) of such  notice; and (C) if such  notice is  required to be  provided to the  Borrower (or  applicable Credit Party) and flood insurance is available in the community in which such Real  Estate Asset is located, evidence of required flood insurance and (ii) the Administrative Agent  shall have  received  written  confirmation  from  each of the  Lenders that  flood  insurance  due  diligence and  flood  insurance  compliance has  been  completed by the  Lenders  (such  written  confirmation not to be unreasonably conditioned, withheld or delayed).  Section 7.12  Pledge of Personal Property Assets.         (a)    Equity Interests.  The Borrower and each other Credit Party shall cause (i) one  hundred  percent  (100%)  of  the  issued  and  outstanding  Equity  Interests  of  each  Domestic  Subsidiary  and  (ii)  sixty-five  percent  (65%)  (or  such  greater  percentage  that  (A)  could  not  reasonably  be  expected  to  cause  the  undistributed  earnings  of  such  Foreign  Subsidiary  as  determined for United States federal income tax purposes to be treated as a deemed dividend to  such Foreign Subsidiary’s United States parent and (B) could not reasonably be expected to cause  any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to  vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%)  of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas.                                       93 





 






      Reg. Section 1.956-2(c)(2)) in the case of each Foreign Subsidiary that is directly owned by any       Credit Party or any Domestic Subsidiary to be subject at all times to a first priority lien (subject to       any Permitted Lien) in favor of the Collateral Agent, for the holders of the Obligations, pursuant       to the terms and conditions of the Collateral Documents, together with opinions of counsel and       any filings and deliveries or other items reasonably requested by the Collateral Agent necessary       in connection therewith (to the extent not delivered on the Closing Date) to perfect the security       interests therein, all in form and substance reasonably satisfactory to the Collateral Agent.               (b)    Personal Property.  The Borrower and each other Credit Party shall (i) cause all        of  its  owned  and  leased  personal  property  (other  than  Excluded Property)  to  be  subject  at  all        times to first priority (subject to any Permitted Lien), perfected Liens in favor of the Collateral        Agent, for the benefit of the holders of the Obligations, to secure the Obligations pursuant to the        terms and conditions of the Collateral Documents or, with respect to any such property acquired        subsequent to the Closing Date, such other additional security documents as the Collateral Agent        shall  reasonably  request,  subject  in  any  case  to  Permitted  Liens  and  (ii)  deliver  such  other        documentation as the Collateral Agent may reasonably request in connection with the foregoing,        including, without limitation, appropriate UCC-1 financing statements, certified resolutions and        other  organizational  and  authorizing  documents  of  such  Person, opinions  of  counsel  to  such        Person  (which  shall  cover,  among other  things,  the  legality,  validity,  binding  effect  and        enforceability of the documentation referred to above and the perfection of the Collateral Agent’s        Liens  thereunder)  and  other  items  reasonably  requested  by  the  Collateral  Agent  necessary  in        connection  therewith  to  perfect  the  security  interests  therein,  all  in  form,  content  and  scope        reasonably satisfactory to the Collateral Agent.  Notwithstanding anything in this clause (b), the        Borrower  shall  not  be  required  to  enter  into  any  Deposit  Account  Control  Agreement  or        Securities Account Control Agreement or take any other action with respect to deposit accounts        or securities accounts except to the extent provided in Section 7.17.         Section 7.13 Books and  Records.   Each  Credit  Party  will  keep  proper  books  of  record  and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of the Borrower in conformity with GAAP.        Section 7.14  Additional Subsidiaries.         Within thirty (30) days after the acquisition or formation of any Subsidiary:               (a)    notify  the  Administrative  Agent  thereof  in  writing,  together  with  the  (i)        jurisdiction of formation, (ii) number of shares of each class of Equity Interests outstanding, (iii)        number and percentage of outstanding shares of each class owned (directly or indirectly) by the        Borrower or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options,        warrants, rights of conversion or purchase and all other similar rights with respect thereto; and               (b)    if such Subsidiary is a Domestic Subsidiary (or if such Subsidiary is a Foreign        Subsidiary  and  no  adverse  tax  consequences would result for the Borrower as a result of such        Foreign  Subsidiary  becoming  a  Guarantor),  cause  such  Person  to (i)  become  a  Guarantor  by        executing  and  delivering  to  the  Administrative  Agent  a  Guarantor  Joinder  Agreement  or  such        other documents as the Administrative Agent shall deem appropriate for such purpose, and (ii)        deliver to the Administrative Agent documents of the types referred to in Sections 5.1(b) and (d)       and  favorable  opinions  of  counsel  to  such  Person  (which  shall  cover,  among  other  things,  the        legality,  validity,  binding  effect  and  enforceability  of  the  documentation  referred  to  in  the                                              94 





 






      immediately  foregoing  clause (i)),  all  in  form,  content  and  scope  satisfactory  to  the       Administrative Agent.        Section 7.15  Interest Rate Protection.  Enter into, within ninety (90) days following the Fourth Amendment  Effective  Date,  and  maintain  one  or  more  Swap  Agreements  on  such  terms  as  shall  be reasonably satisfactory to the Administrative Agent, the effect of which shall be to fix or limit the interest cost for a period of three (3) years from the Fourth Amendment Effective Date with respect to a notional amount  equal  to  at  least  fifty  percent  (50%)  of  the  aggregate  principal  amount  of  the  Term  Loans outstanding.         Section 7.16 Covenants Relating to the Vessels.               (a)    Promptly  after  the  date  of  this  Agreement,  cause  a  certified  copy  of  the  Fleet       Mortgage, together with a notice thereof, to be kept with the certificate of documentation of the       Vessel to which it relates, and with respect to each Vessel, shall furnish the Administrative Agent       and the Collateral Agent with copies of the masters’ signed receipts therefor.               (b)    To  the  extent  applicable,  cause the  Vessels  to  be  maintained  in the highest       classification for vessels of like age and type by the American Bureau of Shipping or any other       classification  society  satisfactory  to  the  Administrative  Agent  without  any  overdue       recommendations.               (c)    If the Collateral Agent so requests, provide the Collateral Agent with copies of       all internally generated inspection or survey reports on the Vessels.               (d)    Maintain with financially sound and reputable insurance companies, insurances       on the Vessels in accordance with Section 6.21.        Section 7.17  Cash Management.               (a)    Maintain  all  cash  management  and  treasury  business  with  Regions  Bank  or  a        Permitted  Third  Party  Bank,  including,  without  limitation,  all deposit  accounts,  disbursement        accounts, investment accounts and lockbox accounts (other than accounts constituting Excluded        Property  and  other  fiduciary  accounts,  all  of  which  the  Credit Parties  may  maintain  without        restriction)  (each  such  deposit  account,  disbursement  account, investment account and lockbox        account,  a  “Controlled  Account”);  each  Controlled  Account  shall  be  a  cash  collateral  account,       with all cash, checks and other similar items of payment in such account securing payment of the       Obligations,  and  in  which  the  Borrower  and  each  of  its  Subsidiaries  shall  have  granted  a  first       priority Lien to the Collateral Agent, on behalf of the holders of the Obligations, perfected either       automatically under the UCC (with respect to Controlled Accounts at Regions Bank) or subject to       Deposit Account Control Agreement or Securities Account Control Agreement, as applicable.               (b)    At  any  time  after  the  occurrence  and  during  the  continuance  of an  Event  of       Default,  at  the  request  of  the  Required  Lenders,  the  Borrower  will,  and  will  cause  each  other       Credit  Party  to,  cause  all  payments  constituting  proceeds  of  accounts  or  other  Collateral  to  be       directed  into  lockbox  accounts  under  agreements  in  form  and  substance  satisfactory  to  the       Collateral Agent.        Section 7.18  Landlord Waivers.   In  the  case  of  (a)  each  headquarter  location  of  the  Credit       Parties, each other location where any significant administrative or governmental functions are       performed  and  each  other  location  where  the  Credit  Parties  maintain  any  books  or  records       (electronic or otherwise) and (b) any personal property Collateral located at any other premises                                             95 





 






      leased  by  a  Credit  Party  containing  personal  property  Collateral  with  a  value  in  excess  of       $500,000, the Credit Parties will provide the Collateral Agent with such estoppel letters, consents       and  waivers  from  the  landlords  on  such  real  property  to  the  extent  (i)  requested  by  the       Administrative Agent or the Collateral Agent and (ii) the Credit Parties are able to secure such       letters, consents and waivers after using commercially reasonable efforts (such letters, consents       and waivers shall be in form and substance satisfactory to the Collateral Agent).                          Section 8     NEGATIVE COVENANTS        Each Credit Party covenants and agrees that until the Obligations shall have been paid in full or otherwise satisfied, and the Commitments hereunder shall have expired or been terminated, such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 8.         Section 8.1  Indebtedness.  No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly  or  indirectly,  create,  incur,  assume  or  guaranty,  or  otherwise  become  or  remain  directly  or indirectly liable with respect to any Indebtedness, other than:               (a)    the Obligations;               (b)    Indebtedness of the Borrower to any other Credit Party;               (c)    Guarantees with respect to Indebtedness permitted under this Section 8.1;               (d)    Indebtedness  existing  on  the  Closing  Date  and  described  in  Schedule 8.1,       together with any Permitted Refinancing thereof;               (e)    Indebtedness  with  respect  to  (x)  Capital  Leases  and  (y)  purchase  money       Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only        by  the  asset  subject  to  such  Capital  Lease,  and,  in  the  case  of clause (y), that any such       Indebtedness  shall  be  secured  only  by  the  asset  acquired  in  connection  with  the  incurrence  of       such  Indebtedness;  provided further  that  the  sum  of  the  aggregate  principal  amount  of  any        Indebtedness under this clause (e) plus assumed Indebtedness under clause (k) below shall not       exceed at any time $10,000,000;               (f)    Indebtedness  in  respect  of  any  Swap  Agreement  that  is  entered  into  in  the       ordinary  course  of  business  to  hedge  or  mitigate  risks  to  which any Credit Party or any of its       Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being       acknowledged by the Borrower that a Swap Agreement entered into for speculative purposes or       of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to       hedge or mitigate risks);               (g)    Indebtedness arising in connection with the financing of insurance premiums in       the ordinary course of business;               (h)    to  the  extent  constituting  Indebtedness,  all  obligations  in connection  with  each       Permitted Acquisition, including, without limitation, Earn Out Obligations;               (i)    Indebtedness  representing  deferred  compensation  to  officers,  directors,       employees of the Borrower and its Subsidiaries;               (j)    unsecured  Indebtedness  of  the  Credit  Parties  in  an  aggregate  amount  not  to       exceed at any time $15,000,000; and                                             96 





 






             (k)    Indebtedness of a Person existing at the time such Person becomes a Subsidiary       of a Credit Party in a transaction permitted hereunder; provided that any such Indebtedness was        not  created  in  anticipation  of  or  in  connection  with  the  transaction  or  series  of  transactions        pursuant to which such Person became a Subsidiary of a Credit Party; provided further that the       sum  of  the  aggregate  principal  amount  of  any  Indebtedness  under  this  clause (k) plus       Indebtedness under clause (e) above shall not exceed at any time $10,000,000.         Section 8.2  Liens.   No  Credit  Party  shall,  nor  shall  it  permit  any  of  its  Subsidiaries  to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of any Credit Party or any of its Subsidiaries, whether now owned or hereafter acquired, created or licensed or any income, profits or royalties therefrom, or file or permit the filing of, or permit to remain in effect, any  financing  statement  or  other  similar  notice  of  any  Lien  with  respect  to  any  such  property,  asset, income, profits or royalties under the UCC of any State or under any similar recording or notice statute or under any Applicable Laws related to intellectual property, except:               (a)    Liens  in  favor  of  the  Collateral  Agent  for  the  benefit  of  the  holders  of  the       Obligations granted pursuant to any Credit Document;               (b)    Liens for Taxes not yet due or for Taxes if obligations with respect to such Taxes       are being contested in good faith by appropriate proceedings promptly instituted and diligently       conducted;               (c)    statutory  Liens  of  landlords,  banks,  carriers,  warehousemen,  mechanics,       repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien       imposed pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) or 4068 of       ERISA that would constitute an Event of Default under Section 9.1(j)), in each case incurred in        the  ordinary  course  of  business  (i)  for  amounts  not  yet  overdue,  or  (ii)  for  amounts  that  are        overdue and that are being contested in good faith by appropriate proceedings, so long as such        reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been        made for any such contested amounts;               (d)    Liens incurred in the ordinary course of business in connection with (i) workers’        compensation, unemployment insurance and other types of social security, or (ii) to secure the        performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government        contracts, trade contracts, performance and return-of-money bonds and other similar obligations        (exclusive  of  obligations  for  the  payment  of  borrowed  money  or other  Indebtedness),  in  each        case, so long as no foreclosure, sale or similar proceedings have been commenced with respect to        any portion of the Collateral on account thereof;               (e)    easements, rights-of-way, restrictions, encroachments, and other minor defects or        irregularities in title, in each case which do not and will not interfere in any material respect with        the  ordinary  conduct  of  the  business  of  any  Credit  Party  or  any  of  its  Subsidiaries,  including,        without  limitation,  all  encumbrances  shown  on  any  policy  of  title  insurance  in  favor  of  the        Collateral Agent with respect to any Real Estate Asset;               (f)    any  interest  or  title  of  a  lessor  or  sublessor  under  any  lease  of  real  estate        permitted hereunder;               (g)    Liens solely on any cash earnest money deposits made by any Credit Party or any        of  its  Subsidiaries  in  connection  with  any  letter  of  intent,  or  purchase  agreement  permitted        hereunder;                                            97 





 






             (h)    purported  Liens  evidenced  by  the  filing  of  precautionary  UCC  financing       statements  relating  solely  to  operating  leases  of  personal  property  entered  into  in  the  ordinary       course of business;               (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;               (j)    any  zoning  or  similar  law  or  right  reserved  to  or  vested  in any  governmental       office or agency to control or regulate the use of any real property;               (k)    licenses of patents, trademarks and other intellectual property rights granted by       any Credit Party or any of its Subsidiaries in the ordinary course of business and not interfering in       any respect with the ordinary conduct of the business of such Credit Party or such Subsidiary;               (l)    Liens existing as of the Closing Date and described in Schedule 8.2;               (m)    Liens  securing  purchase  money  Indebtedness  and  Capital  Leases  to  the  extent       permitted  pursuant  to  Section 8.1(e);  provided,  any  such  Lien  shall  encumber  only  the  asset       acquired  with  the  proceeds  of  such  Indebtedness  or  the  assets  subject  to  such  Capital  Lease,       respectively;               (n)    Liens  in  favor  of  the  Issuing  Bank  or  the  Swingline  Lender  on  cash  collateral        securing the obligations of a Defaulting Lender to fund risk participations hereunder;               (o)    Liens consisting of judgment or judicial attachment liens relating to judgments        which do not constitute an Event of Default hereunder;               (p)    licenses  (including  licenses  of  Intellectual  Property),  sublicenses,  leases  or        subleases granted to third parties in the ordinary course of business;               (q)    Liens in favor of collecting banks under Section 4-210 of the UCC;               (r)    Liens  (including  the  right  of  set-off)  in  favor  of  a  bank  or  other  depository        institution arising as a matter of law encumbering deposits;               (s)    Liens  arising  out  of  conditional  sale,  title  retention,  consignment  or  similar        arrangements for the sale of goods in the ordinary course of business;               (t)    Liens  not  otherwise  permitted  hereunder  securing  Indebtedness  or  other        obligations not in excess of $5,000,000 in the aggregate at any one time outstanding; and               (u)    the  interest  of  the  shipyard  in  vessels  being  built  for  or  retrofitted  for  the        Borrower  or  its  Subsidiaries  during  the  period  prior  to  delivery  of  the  vessel(s)  under  the        applicable contract.         Section 8.3  No Further Negative Pledges.  No Credit Party shall, nor shall it permit any of its Subsidiaries  to,  enter  into  any  Contractual  Obligation  (other  than  this  Agreement  and  the  other  Credit Documents) that limits the ability of any Credit Party or any such Subsidiary to create, incur, assume or suffer  to  exist  Liens  on  property  of  such  Person;  provided,  however,  that  this  Section 8.3  shall  not prohibit (i) any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 8.1(e), solely to the extent any such negative pledge relates to the property financed by or subject  to  Permitted  Liens  securing  such  Indebtedness,  (ii)  any  Permitted  Lien  or  any  document  or                                             98 





 






instrument governing any Permitted Lien; provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien, (iii) customary restrictions and conditions contained in any agreement relating to the disposition of any property or assets permitted under Section 8.9 pending the consummation of such disposition, and (iv) customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary course of business.  Notwithstanding the foregoing or anything in this Agreement to the contrary, at no time shall the Credit Parties  be  permitted  to  create,  incur,  assume  or  suffer  to  exist  Liens  on  any  interest  (fee,  leasehold  or otherwise) owned by the Borrower or any of its Subsidiaries as of the FourthFifth Amendment Effective Date in any Real Estate Asset., except for Liens created pursuant to Section 7.11.        Section 8.4   Restricted Payments.   No  Credit  Party  shall,  nor  shall  it  permit  any  of  its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:               (a)    each Subsidiary of the Borrower may make Restricted Payments to the Borrower;        and               (b)    the  Borrower  may  declare  and  make  dividend  payments  or  other  distributions        payable solely in the Equity Interests of such Person; and               (c)    the Credit Parties may repurchase any class of Equity Interest of any other Credit        Party so long as (i) no Default or Event of Default has occurred and is continuing or would result        therefrom and (ii) the Consolidated Leverage Ratio (calculated without giving effect to the Fifth        Amendment EBITDA  Addbacks)   is  less  than  or  equal  to  2.00  to  1.00 (x) for the two (2)        consecutive Fiscal Quarters of the Borrower most recently ended and (y) after giving effect to       such repurchases.        Section 8.5   Burdensome  Agreements.   No  Credit  Party  shall,  nor  shall  it  permit  any  of  its Subsidiaries to, enter into, or permit to exist, any Contractual Obligation that encumbers or restricts the ability of any such Person to (i) pay dividends or make any other distributions to the Borrower or other Credit Party on its Equity Interests or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligation owed to the Borrower or any other Credit Party, (iii) make loans or advances to the Borrower or any other Credit Party, (iv) sell, lease or transfer any of its property to the Borrower or any other Credit Party, (v)  pledge  its  property  pursuant  to  the Credit Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Borrower or Credit Party pursuant to the Credit Documents or any renewals, refinancings, exchanges, refundings  or  extension  thereof,  except  (in  respect  of  any  of  the  matters  referred  to  in  clauses  (i)-(iv) above) for (1) this Agreement and the other Credit Documents, (2) any document or instrument governing Indebtedness  incurred  pursuant  to  Section 8.1(e);  provided  that  any  such  restriction  contained  therein relates only to the asset or assets constructed or acquired in connection therewith, (3) any Permitted Lien or  any  document  or  instrument  governing  any  Permitted  Lien,  provided  that  any  such  restriction contained  therein  relates  only  to  the  asset  or  assets  subject  to  such  Permitted  Lien  or  (4)  customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.9 pending the consummation of such sale.        Section 8.6   Investments.  No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any joint venture and any Foreign Subsidiary, except:                                              99 





 






             (a)    Investments  in  cash  and  Cash  Equivalents  and  deposit  accounts  or  securities accounts in connection therewith;               (b)    equity Investments owned as of the Closing Date in any Subsidiary;               (c)    intercompany loans to the extent permitted under Section 8.1(b) and guarantees        to the extent permitted under Section 8.1(c);               (d)    Investments existing on the Closing Date and described on Schedule 8.6;               (e)    Investments constituting Swap Agreements permitted by Section 8.1(f);               (f)    Permitted Acquisitions;               (g)    Investments  constituting  accounts  receivable,  trade  debt  and  deposits  for  the        purchase of goods, in each case made in the ordinary course of business;               (h)    other  Investments  not  listed  above  and  not  otherwise  prohibited  by  this        Agreement  in  an  aggregate  amount  outstanding  at  any  time  (on  a cost  basis)  not  to  exceed        $10,000,000.  Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results in or facilitates in any manner any Restricted Payment not otherwise permitted under the terms of Section  8.4.         Section 8.7  Use of Proceeds.  No Credit Party shall use the proceeds of any Credit Extension of the Loans except pursuant to Section 7.9.        Section 8.8   Financial Covenants.  The Credit Parties shall not:         (a)   Consolidated  Leverage  Ratio.   Commencing  with  the  Fiscal  Quarter  ended June  30,December 31, 2018, permit the Consolidated Leverage Ratio as of the end of any Fiscal Quarter of the Borrower to exceed 3.00 to 1.00; provided, however, that solely during a Permitted Acquisition Increase  Period, the Consolidated Leverage Ratio may be greater than 3.00 to 1.00 but shall in no event exceed  3.50 to 1.00; provided, further, that (i) the maximum Consolidated Leverage Ratio shall return to 3.00 to  1.00 for at least one Fiscal Quarter following the first Permitted Acquisition Increase Period (such Fiscal  Quarter, the “Reset Quarter”),  (ii) the  earliest a  second  Permitted  Acquisition  Increase Period may be  declared is the Fiscal Quarter immediately following the Reset Quarter and (iii) there shall be no more  than two (2)  Permitted  Acquisition  Increase  Periods  during the term of this  Agreement.the  correlative  ratio for the applicable Fiscal Quarter of the Borrower set forth in the following table:                       Fiscal Quarter Ending         Maximum Consolidated                                                         Leverage Ratio                        December 31, 2018                 3.00 to 1.00                         March 31, 2019                   4.75 to 1.00                          June 30, 2019                   4.75 to 1.00                 September 30, 2019 and each Fiscal                                             100 





 






                 Quarter of the Borrower ending         3.00 to 1.00                           thereafter        (b)    Consolidated Fixed Charge  Coverage  Ratio.   Permit  the  Consolidated  Fixed  Charge Coverage Ratio as of the end of any Fiscal Quarter of the Borrower to be less than 1.25 to 1.00.         (c)   Minimum  Consolidated EBITDA.  Solely  with  respect to the  Fiscal Quarters of the  Borrower ending March 31, 2019 and June 30, 2019, permit Consolidated EBITDA to be less than (i)  $5,000,000 for the Fiscal Quarter of the Borrower ending March 31, 2019 and (ii) $12,500,000 for the  Fiscal Quarters of the Borrower ending March 31, 2019 and June 30, 2019 on a collective basis.        Section 8.9   Fundamental  Changes;  Disposition of  Assets;  Acquisitions.  No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any  Asset  Sale,  or  acquire  by  purchase  or  otherwise  (other  than  purchases  or  other  acquisitions  of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of  business,  subject  to  Section 8.17)  any  vessel,  the  business,  property  or  fixed  assets  of,  or  Equity Interests or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:               (a)    any Subsidiary of the Borrower may be merged with or into the Borrower or any        Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or        assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a        series of transactions, to the Borrower or any other Subsidiary; provided, in the case of such a       merger,  (i)  if  the  Borrower  is  party  to  the  merger,  the  Borrower  shall  be  the  continuing  or       surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor shall be the       continuing or surviving Person;               (b)    Asset Sales, (i) the proceeds of which when aggregated with the proceeds of all       other Asset Sales made within the same Fiscal Year, do not exceed $20,000,000; provided (1) the        consideration received for such assets shall be in an amount at least equal to the fair market value        thereof  (determined  in  good  faith  by  the  board  of  directors  of the  applicable  Credit  Party  (or        similar governing body)), and (2) no less than seventy-fiveone hundred percent (75100%) of such       proceeds shall be paid in cash; and               (c)    Investments made in accordance with Section 8.6.         Section 8.10 Disposal of Subsidiary Interests.  Except for any sale of all of its interests in the Equity Interests of any of its Subsidiaries in compliance with the provisions of Section 8.9 and except for Liens  securing the Obligations, no Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to qualify directors if required by Applicable Laws; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Equity Interests  of  any  of  its  Subsidiaries,  except  to  another  Credit Party  (subject  to  the  restrictions  on  such disposition otherwise imposed hereunder), or to qualify directors if required by Applicable Laws.        Section 8.11  Sales and  Lease-Backs.   No  Credit  Party  shall,  nor  shall  it  permit  any  of  its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with  respect  to  any  lease  of  any  property  (whether  real,  personal  or  mixed),  whether  now  owned  or hereafter acquired, which the Credit Party or any Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any other Credit Party), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the                                           101 





 






Borrower or any other Credit Party to any Person (other than the Borrower or any other Credit Party) in connection with such lease.         Section 8.12 Transactions  with  Affiliates and Insiders.   No  Credit  Party  shall,  nor  shall  it permit  any  of  its  Subsidiaries  to,  directly  or  indirectly,  enter  into  or  permit  to  exist  any  transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any officer, director or Affiliate of the Borrower or any its Subsidiaries on terms that are less favorable to the Borrower or such Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is not an officer, director or Affiliate of the Borrower or any of its Subsidiaries; provided, the foregoing restriction shall not apply to (a) any transaction between or among the Credit Parties and (b) normal  and  reasonable  compensation  and  reimbursement  of  expenses  of  officers  and  directors  in  the ordinary course of business.        Section 8.13  Prepayment of Other Funded Debt.  No Credit Party shall, nor shall it permit any of its Subsidiaries to:               (a)    after  the  issuance  thereof,  amend  or  modify  (or  permit  the  amendment  or        modification of) the terms of any Funded Debt in a manner adverse to the interests of the Lenders        (including  specifically  shortening  any  maturity  or  average  life  to  maturity  or  requiring  any        payment  sooner  than  previously  scheduled  or  increasing  the  interest  rate  or  fees  applicable        thereto); or               (b)    except in connection with a refinancing or refunding permitted hereunder, make        any voluntary prepayment, redemption, defeasance or acquisition for value of (including by way        of depositing money or securities with the trustee with respect thereto before due for the purpose        of  paying  when  due),  or  refund,  refinance  or  exchange  of,  any  Funded  Debt  (other  than  the        Indebtedness under the Credit Documents, intercompany Indebtedness permitted hereunder and        Indebtedness permitted under Section 8.1(b)).         Section 8.14 Conduct of Business.  From and after the Closing Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in any business other than the businesses engaged in by such Credit Party or such Subsidiary on the Closing Date and businesses that are substantially similar, related or incidental thereto.         Section 8.15 Fiscal Year; Accounting Changes.  No Credit Party shall, nor shall it permit any of its Subsidiaries to change its Fiscal Year-end from December 31.  No Credit Party shall, nor shall it permit any of its Subsidiaries to change its accounting method (except in accordance with GAAP) in any manner adverse to the interests of the Lenders without the prior written consent of the Required Lenders.         Section 8.16 Amendments to  Organizational  Agreements/Material  Agreements.  Unless consented to in writing by the Administrative Agent in its sole discretion, no Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or permit any amendments to its Organizational Documents if such amendment could reasonably be expected to be materially adverse to the Lenders or any Agent.  No Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or permit any amendment to, or terminate  or  waive  any  provision  of,  any  Material  Contract  unless  such  amendment,  termination,  or waiver would not have a material adverse effect on the Agents or the Lenders.        Section 8.17  Capital Expenditures.  The Credit Parties shall not permit Consolidated Capital Expenditures in any Fiscal Year to exceed $35,000,000 in the aggregate plus the unused amount available for Consolidated Capital Expenditures under this Section 8.17 for the immediately preceding fiscal year (excluding  any  carry  forward  available  from  any  prior  fiscal  year);  provided,  that  with  respect  to  any fiscal year, capital expenditures made during any such fiscal year shall be deemed to be made first with                                           102 





 






respect to the applicable limitation for such year and then with respect to any carry forward amount to the extent applicable.         Section 8.18 Negative Covenants Relating to the Vessels.  The Credit Parties shall not do any act or voluntarily suffer or permit any act to be done whereby any insurance required hereunder or under any of the Fleet Mortgage shall or may be suspended, impaired or defeated, or suffer or permit any Vessel to engage in any voyage or carry any cargo not permitted under the policies of insurance then in effect covering such Vessel.        Section 9     EVENTS OF DEFAULT; REMEDIES; APPLICATION OF FUNDS.        Section 9.1   Events of Default.  If any one or more of the following conditions or events shall occur:               (a)    Failure to Make Payments When Due.  Failure by any Credit Party to pay (i) the       principal  of  any  Loan  when  due,  whether  at  stated  maturity,  by acceleration  or  otherwise;  (ii)       within  one  (1)  Business  Day  of  when  due  any  amount  payable  to  any  Issuing  Bank  in       reimbursement of any drawing under a Letter of Credit; or (iii) within three (3) Business Days of       when due any interest on any Loan or any fee or any other amount due hereunder; or               (b)    Default in Other  Agreements.  (i) Failure of any Credit Party or any of its        Subsidiaries  to  pay  when  due  any  principal  of  or  interest  on  or  any  other  amount  payable  in        respect  of  one  or  more  items  of  Indebtedness  (other  than  Indebtedness  referred  to  in  Section        8.1(a)) in an aggregate principal amount of $5,000,000 or more, in each case beyond the grace or        cure period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to        any  other  term  of  (1)  one  or  more  items  of  Indebtedness  in  the aggregate  principal  amounts        referred to in clause (i) above, or (2) any loan agreement, mortgage, indenture or other agreement       relating  to  such  item(s)  of  Indebtedness,  in  each  case  beyond  the  grace  or  cure  period,  if  any,       provided therefor, if the effect of such breach or default is to cause, or to permit the holder or       holders  of  that  Indebtedness  (or  a  trustee  on  behalf  of  such  holder  or  holders),  to  cause,  that       Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or       redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the       case may be; or               (c)    Breach of Certain Covenants.  Failure of any Credit Party to perform or comply        with any term or condition contained in Section 7.1, Section 7.2, Section 7.5, Section 7.6, Section        7.8,  Section 7.9,  Section 7.10,  Section 7.11,  Section 7.12,  Section 7.13,  Section 7.14,  Section        7.19 or Section 8; or               (d)    Breach of  Representations, etc.   Any  representation,  warranty,  certification  or        other  statement  made  or  deemed  made  by  any  Credit  Party  in  any Credit  Document  or  in  any        statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing        pursuant hereto or thereto or in connection herewith or therewith shall be false in any material        respect as of the date made or deemed made; or               (e)    Other Defaults Under Credit Documents.  Any Credit Party shall default in the       performance  of  or  compliance  with  any  term  contained  herein  or any  of  the  other  Credit       Documents, other than any such term referred to in any other Section of this Section 9.1, and such        default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an        Authorized  Officer  of  such  Borrower  becoming  aware  of  such  default,  or  (ii)  receipt  by  the        Borrower of notice from the Administrative Agent or any Lender of such default; or                                            103 





 






       (f)    Involuntary Bankruptcy; Appointment of Receiver, etc.  (i) A court of competent jurisdiction  shall  enter  a  decree  or  order  for  relief  in  respect  of  any  Credit  Party  or  any  of  its Subsidiaries in an involuntary case under the Bankruptcy Code or Debtor Relief Laws now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any  Credit  Party  or  any  of  its  Subsidiaries  under  the  Bankruptcy  Code  or  other  Debtor  Relief Laws now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for  the  appointment  of  a  receiver,  liquidator,  sequestrator,  trustee,  custodian  or  other  officer having similar powers over any Credit Party or any of its Subsidiaries, or over all or a substantial part  of  its  property,  shall  have  been  entered;  or  there  shall  have  occurred  the  involuntary appointment of an interim receiver, trustee or other custodian of any Credit Party or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Credit Party or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for  sixty (60) days without having been dismissed, bonded or discharged; or         (g)    Voluntary  Bankruptcy;  Appointment of  Receiver, etc.  (i) Any Credit Party or  any of its Subsidiaries shall have an order for relief entered with respect to it or shall commence a  voluntary  case  under  the  Bankruptcy  Code  or  other  Debtor  Relief  Laws  now  or  hereafter  in  effect, or shall consent to the entry of an order for relief in  an  involuntary  case,  or  to  the  conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the  appointment  of  or  taking  possession  by  a  receiver,  trustee  or  other  custodian  for  all  or  a  substantial  part  of  its  property;  or  any  Credit  Party  or  any  of  its  Subsidiaries  shall  make  any  assignment for the benefit of creditors; or (ii) any Credit Party or any of its Subsidiaries shall be  unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts  become due; or the board of directors (or similar governing body) of any Credit Party or any of  its Subsidiaries or any committee thereof shall adopt any resolution or otherwise authorize any  action to approve any of the actions referred to herein or in Section 9.1(f); or         (h)    Judgments and  Attachments.   (i)  Any  one  or  more  money  judgments,  writs  or  warrants of attachment or similar process involving an aggregate amount at any time in excess of  $2,000,000  (to  the  extent  not  adequately  covered  by  insurance  as  to  which  a  solvent  and  unaffiliated insurance company has acknowledged coverage) shall be entered or filed against any  Credit  Party  or  any  of  its  Subsidiaries  or  any  of  their  respective  assets  and  shall  remain  undischarged,  unvacated,  unbonded  or  unstayed  for  a  period  of  sixty  (60)  days;  or  (ii)  any  non-monetary judgment  or  order  shall  be  rendered  against  any  Credit  Party  or any of its  Subsidiaries  that  could  reasonably  be  expected  to  have  a  Material  Adverse  Effect,  and  shall  remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days; or         (i)    Dissolution.  Any order, judgment or decree shall be entered against any Credit  Party or any of its Subsidiaries decreeing the dissolution or split up of such Credit Party or such  Subsidiary and such order shall remain undischarged or unstayed for a period in excess of thirty  (30) days; or         (j)    Pension Plans.  There shall occur one or more ERISA Events which individually or in the aggregate results in liability of any Credit Party, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of $2,000,000 during the term hereof and which is not paid by the applicable due date; or         (k)    Change of Control.  A Change of Control shall occur; or                                       104 





 






             (l)    Invalidity of Credit  Documents and Other  Documents.   At  any  time  after  the        execution and delivery thereof, (i) this Agreement or any other Credit Document ceases to be in        full force and effect (other than by reason of a release of Collateral in accordance with the terms        hereof  or  thereof  or  the  satisfaction  in  full  of  the  Obligations  (other  than  contingent  and        indemnified obligations not then due and owing) in accordance with the terms hereof) or shall be        declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and        perfected Lien in any Collateral purported to be covered by the Collateral Documents with the        priority required by the relevant Collateral Document, or (ii) any Credit Party shall contest the        validity or enforceability of any Credit Document in writing or deny in writing that it has any        further  liability,  including  with  respect  to  future  advances  by  the  Lenders,  under  any  Credit        Document to which it is a party; or               (m)    Vessels.  (a) A proceeding shall have been commenced on behalf of the United       States  of  America  to  effect  the  forfeiture  of  any  of  the  Vessels  or  any  notice  shall  have  been       issued on behalf of the United States of America of the seizure of any of the Vessels or to the       effect  that  the  Certificate  of  Documentation  of  any  of  the  Vessels  is  subject  to  cancellation  or       revocation, for any reason whatsoever and the Borrower shall have failed within thirty (30) days       of the occurrence thereof to have assigned and pledged to the Collateral Agent, or cause to have       assigned and pledged to the Collateral Agent, additional collateral having an aggregate value (as       determined by the Collateral Agent in its sole discretion) at least equal to the agreed value (as set       forth on Schedule 6.10(d)) of such Vessel or (b) the Borrower or any Credit Party shall lose its       status  as  a  citizen  of  the  United  States  of  America  for  the  purpose  of  operating  vessels  in  the       coastwise trade in accordance with Section 2 of the Shipping Act.        Section 9.2   Remedies.   Upon  the  occurrence  of  any  Event  of  Default  described  in  Section  9.1(f) or Section 9.1(g), automatically, and upon the occurrence and during the continuance of any other Event  of  Default,  at  the  request  of  (or  with  the  consent  of)  the  Required  Lenders,  upon  notice  to  the Borrower by the Administrative Agent, (A) the Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation of any Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each of the Credit Parties: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then  outstanding  (regardless  of  whether  any  beneficiary  under  any  such  Letter  of  Credit  shall  have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letters of Credit), and (III) all other Obligations; provided, the foregoing shall not affect  in  any  way  the  obligations  of  the  Lenders  under  Section  2.2(b)(iii)  or  Section 2.3(e);  (C)  the Administrative Agent may cause the Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents and (D) the Administrative Agent shall direct the Borrower to pay (and the Borrower hereby agrees upon receipt of such notice, or upon the occurrence of any Event of Default specified in Section 9.1(f) and Section 9.1(g) to pay) to the Administrative Agent such additional amounts  of  cash,  to  be  held  as  security  for  such  Borrower’s  reimbursement  Obligations  in  respect  of Letters of Credit then outstanding under arrangements acceptable to the Administrative Agent, equal to the  Outstanding  Amount  of  the  Letter  of  Credit  Obligations  at  such  time.   Notwithstanding  anything herein or otherwise to the contrary, any Event of Default occurring hereunder shall continue to exist (and shall  be  deemed  to  be  continuing)  until  such  time  as  such  Event  of  Default  has  been  cured  to  the satisfaction of the Required Lenders or waived in writing in accordance with the terms of Section 11.4.        Section 9.3   Application of Funds.  After the exercise of remedies provided for in Section 9.2 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:                                            105 





 






             First,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities,       expenses and other amounts (other than principal, interest and Letter of Credit Fees but including       without limitation all reasonable out-of-pocket fees, expenses and disbursements of any law firm       or other counsel and amounts payable under Section 3.1, Section 3.2 and Section 3.3) payable to        the Administrative Agent and the Collateral Agent, in each case in its capacity as such;               Second, to payment of that portion of the Obligations constituting fees, indemnities and        other  amounts  (other  than  principal,  interest  and  Letter  of  Credit Fees) payable to the Lenders        including without limitation all reasonable out-of-pocket fees, expenses and disbursements of any        law firm or other counsel and amounts payable under Section 3.1, Section 3.2 and Section 3.3),       ratably  among  the  Lenders  in  proportion  to  the  respective  amounts  described  in  this  clause       Second payable to them;               Third,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid       Letter of Credit Fees and interest on the Loans, Letter of Credit Borrowings and other Obligations       ratably among such parties in proportion to the respective amounts described in this clause Third       payable to them; and               Fourth, to (a) payment of that portion of the Obligations constituting unpaid principal of        the  Loans  and  Letter  of  Credit  Borrowings,  (b)  payment  of  breakage,  termination  or  other        amounts  owing  in  respect  of  any  Swap  Agreement  between  the  Borrower  or  any  of  its        Subsidiaries and any Swap Provider, to the extent such Swap Agreement is permitted hereunder,        (c) payments of amounts due under any Treasury Management Agreement between the Borrower        or any of its Subsidiaries and any Treasury Management Bank, and (d) the Administrative Agent        for  the  account of the Issuing Banks, to Cash Collateralize that portion of the Letter of Credit        Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among such        parties in proportion to the respective amounts described in this clause Fourth payable to them;        and               Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to       the Borrower or as otherwise required by Applicable Laws.  Subject to Section 2.3, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such  Guarantor  or  such  Guarantor’s  assets,  but  appropriate  adjustments  shall  be  made  with  respect  to payments from other Credit Parties to preserve the allocation to Obligations otherwise set forth above in this Section.  Notwithstanding  the  foregoing,  Secured  Swap  Obligations  and  Secured  Treasury  Management Obligations shall be excluded from the application described above if the Administrative Agent has not received  a  Secured  Party  Designation  Notice,  together  with  such  supporting  documentation  as  the Administrative Agent may request, from the applicable Qualifying Swap Provider or Qualifying Treasury Management  Bank,  as  the  case  may  be.   Each  Qualifying  Swap  Provider  or  Qualifying  Treasury Management Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence  shall,  by  such  notice,  be  deemed  to  have  acknowledged and  accepted  the  appointment  of  the                                             106 





 






Administrative Agent pursuant to the terms of Section X for itself and its Affiliates as if a “Lender” party hereto.                                  Section 10   AGENCY        Section 10.1  Appointment and Authority.               (a)   Each  of  the  Lenders  and  the  Issuing  Banks  hereby  irrevocably  appoints  Regions       Bank  to  act  on  its  behalf  as  the  Administrative  Agent  hereunder  and  under  the  other  Credit       Documents  and  authorizes  the  Administrative  Agent  to  take  such actions  on  its  behalf  and  to       exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,       together with such actions and powers as are reasonably incidental thereto.  The provisions of this       Section are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks,       and no Credit Party nor any of its Subsidiaries shall have rights as a third party beneficiary of any       of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any       other Credit Documents (or any other similar term) with reference to the Administrative Agent is       not  intended  to  connote  any  fiduciary  or  other  implied  (or  express)  obligations  arising  under       agency doctrine of any Applicable Law.  Instead such term is used as a matter of market custom,       and is intended to create or reflect only an administrative relationship between contracting parties.               (b)    Each of the Lenders hereby irrevocably appoints, designates and authorizes the       Collateral Agent to take such action on its behalf under the provisions of this Agreement and each       Collateral  Document  and  to  exercise  such  powers  and  perform  such  duties  as  are  expressly       delegated to it by the terms of this Agreement or any Collateral Document, together with such       powers  as  are  reasonably  incidental  thereto.   Notwithstanding  any  provision  to  the  contrary       contained elsewhere herein or in any Collateral Document, the Collateral Agent shall not have       any  duties  or  responsibilities,  except  those  expressly  set  forth  herein  or  therein,  nor  shall  the       Collateral  Agent  have  or  be  deemed  to  have  any  fiduciary  relationship  with  any  Lender  or       participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities       shall  be  read  into  this  Agreement  or  any  Collateral  Document  or  otherwise  exist  against  the       Collateral Agent.  Without limiting the generality of the foregoing sentence, the use of the term       “agent”  herein  and  in  the  Collateral  Documents  with  reference  to  the  Collateral  Agent  is  not       intended to connote any fiduciary or other implied (or express) obligations arising under agency       doctrine of any Applicable Law.  Instead, such term is used merely as a matter of market custom,       and  is  intended  to  create  or  reflect  only  an  administrative  relationship  between  independent       contracting parties.  The Collateral Agent shall act on behalf of the Lenders with respect to any       Collateral and the Collateral Documents, and the Collateral Agent shall have all of the benefits       and  immunities  (i)  provided  to  the  Administrative  Agent  under  the  Credit  Documents  with       respect to any acts taken or omissions suffered by the Collateral Agent in connection with any       Collateral or the Collateral Documents as fully as if the term “Administrative Agent” as used in       such Credit Documents included the Collateral Agent with respect to such acts or omissions, and       (ii) as additionally provided herein or in the Collateral Documents with respect to the Collateral       Agent.        Section 10.2  Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative  Agent  hereunder  in  its  individual  capacity.   Such  Person  and  its  Affiliates  may  accept deposits  from,  lend  money  to,  own  securities  of,  act  as  the  financial  advisor  or  in  any  other  advisory                                            107 





 






capacity for and generally engage in any kind of business with the Borrower or any Subsidiary of the Borrower or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.         Section 10.3 Exculpatory Provisions.               (a)  The  Administrative  Agent  shall  not  have  any  duties  or  obligations  except  those        expressly set forth herein and in the other Credit Documents, and its duties hereunder shall be        administrative  in  nature.   Without  limiting  the  generality  of  the  foregoing,  the  Administrative        Agent:                      (i)    shall not be subject to any fiduciary or other implied duties, regardless of              whether a Default has occurred and is continuing;                      (ii)   shall not have any duty to take any discretionary action or exercise any              discretionary  powers,  except  discretionary  rights  and  powers  expressly  contemplated              hereby  or  by  the  other  Credit  Documents  that  the  Administrative  Agent  is  required  to              exercise  as  directed  in  writing  by  the  Required  Lenders  (or  such  other  number  or              percentage of the Lenders as shall be expressly provided for herein or in the other Credit              Documents),  provided  that  the  Administrative  Agent  shall  not  be  required  to  take  any              action that, in its opinion or the opinion of its counsel, may expose the Administrative              Agent  to  liability  or  that  is  contrary  to  any  Credit  Document  or  Applicable  Law,              including for the avoidance of doubt any action that may be in violation of the automatic              stay  under  any  Debtor  Relief  Law  or  that  may  effect  a  forfeiture,  modification  or              termination of property of a Defaulting Lender in violation of any Debtor Relief Law;              and                      (iii)  shall  not,  except  as  expressly  set  forth  herein  and  in  the other Credit              Documents, have any duty to disclose, and shall not be liable for the failure to disclose,              any information relating to the Borrower or any of its Affiliates that is communicated to              or obtained by the Person serving as the Administrative Agent or any of its Affiliates in              any capacity.               (b)    The Administrative Agent shall not be liable for any action taken or not taken by       it  (i)  with  the  consent  or  at  the  request  of  the  Required  Lenders  (or  such  other  number  or       percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in       good faith shall be necessary, under the circumstances as provided in Sections 11.4 and 9.2) or       (ii) in the absence of its own gross negligence or willful misconduct, as determined by a court of       competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be       deemed not to have knowledge of any Default unless and until notice describing such Default is       given to the Administrative Agent in writing by the Borrower, a Lender or an Issuing Bank.               (c)    The  Administrative  Agent  shall  not  be  responsible  for  or  have  any  duty  to       ascertain or inquire into (i) any statement, warranty or representation made in or in connection       with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or       other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the       performance or observance of any of the covenants, agreements or other terms or conditions set       forth  herein  or  therein  or  the  occurrence  of  any  Default,  (iv) the  validity,  enforceability,       effectiveness  or  genuineness  of  this  Agreement,  any  other  Credit  Document  or  any  other       agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 5       or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to       the Administrative Agent.                                           108 





 






      Section 10.4  Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely  upon,  and  shall  not  incur  any  liability  for  relying  upon, any  notice,  request,  certificate,  consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website  posting  or  other  distribution)  believed  by  it  to  be  genuine  and  to  have  been  signed,  sent  or otherwise  authenticated  by  the  proper  Person.   The  Administrative  Agent  also  may  rely  upon  any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and  shall  not  incur  any  liability  for  relying  thereon.   In  determining  compliance  with  any  condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult  with  legal  counsel  (who  may  be  counsel  for  the  Borrower  and  its  Subsidiaries),  independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.         Section 10.5 Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Section shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as  activities  as  Administrative  Agent.   The  Administrative  Agent  shall  not  be  responsible  for  the negligence or misconduct of any sub-agents 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-agents.        Section 10.6  Resignation of Administrative Agent.               (a)    The Administrative Agent may at any time give notice of its resignation to the        Lenders, the Issuing Banks and the Borrower.  Upon receipt of any such notice of resignation, the        Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,        which shall be a bank with an office in the United States, or an Affiliate of any such bank with an        office in the United States.  If no such successor shall have been so appointed by the Required        Lenders  and  shall  have  accepted  such  appointment  within  thirty (30)  days  after  the  retiring        Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the        Required  Lenders)  (the “Resignation  Effective Date”),  then  the  retiring  Administrative  Agent       may  (but  shall  not  be  obligated  to)  on  behalf  of  the  Lenders and the Issuing Banks, appoint a       successor  Administrative  Agent  meeting  the  qualifications  set  forth  above.   Whether  or  not  a       successor  has  been  appointed  such  resignation  shall  become  effective  in  accordance  with  such       notice on the Resignation Effective Date.                 (b)    If the Person servicing as Administrative Agent is a Defaulting Lender pursuant       to  clause (d)  of  the  definition  thereof,  the  Required  Lenders  may,  to  the  extent  permitted  by        Applicable Law by notice in writing to the Borrower and such Person remove such Person as the        Administrative  Agent  and,  in  consultation  with  the  Borrower,  appoint  a  successor.   If  no  such        successor  shall  have  been  so appointed by the Required Lenders and shall have accepted such        appointment  within  thirty  (30)  days  (or  such  earlier  day  as  shall  be  agreed  by  the  Required        Lenders (the “Removal Effective Date”), then such removal shall nonetheless become effective in       accordance with such notice on the Removal Effective Date.                                            109 





 






             (c)    With effect from the Resignation Effective Date or the Removal Effective Date       (as  applicable)  (1)  the  retiring  or  removed  Administrative  Agent  shall  be  discharged  from  its       duties and obligations hereunder and under the other Credit Documents (except that in the case of       any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing       Banks under any of the Credit Documents, the retiring or removed Administrative Agent shall       continue to hold such collateral security until such time as a successor Administrative Agent is       appointed)  and  (2)  except  for  any  indemnity  payments  owed  to  the  retiring  or  removed       Administrative Agent, all payments, communications and determinations provided to be made by,       to  or  through  the  Administrative  Agent  shall  instead  be  made  by  or  to  each  Lender  and  each       Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative       Agent as provided for above in this Section.  Upon the acceptance of a successor’s appointment       as Administrative Agent hereunder, such successor shall succeed to and become vested with all of       the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other       than any rights to indemnity payments owed to the retiring or removed Administrative Agent),       and the retiring or removed Administrative Agent shall be discharged from all of its duties and       obligations hereunder or under the other Credit Documents (if not already discharged therefrom       as  provided  above  in  this  Section).   The  fees  payable  by  the  Borrower  to  a  successor       Administrative  Agent  shall  be  the  same  as  those  payable  to  its predecessor  unless  otherwise       agreed between the Borrower and such successor.  After the retiring or removed Administrative        Agent’s resignation or removal hereunder and under the other Credit Documents, the provisions        of  this  Section 10  and  Section  11.2  shall  continue  in  effect  for  the  benefit  of  such  retiring  or       removed Administrative Agent, its sub-agents and their respective Related Parties in respect of       any  actions  taken  or  omitted  to  be  taken  by  any  of  them  while  the  retiring  or  removed       Administrative Agent was acting as Administrative Agent.        Section 10.7  Non-Reliance on Administrative Agent and Other Lenders.  Each of the Lenders and  the  Issuing  Banks  acknowledges  that  it  has,  independently  and  without  reliance  upon  the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each of the Lenders and the Issuing Banks also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based  on  such  documents  and  information  as  it  shall  from  time  to  time  deem  appropriate,  continue  to make  its  own  decisions  in  taking  or  not  taking  action  under  or based  upon  this  Agreement,  any  other Credit Document or any related agreement or any document furnished hereunder or thereunder.         Section 10.8 No Other Duties, etc.  Anything herein to the contrary notwithstanding, the Book Manager, Lead Arranger, Co-Documentation Agents or Co-Syndication Agents listed on the cover page hereof  shall  not  have  any  powers,  duties  or  responsibilities  under  this  Agreement  or  any  of  the  other Credit  Documents,  except  in  its  capacity,  as  applicable,  as  the  Administrative  Agent,  a  Lender  or  an Issuing Bank hereunder.        Section 10.9  Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit Obligation shall  then  be  due  and  payable  as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:               (a)    to file and prove a claim for the whole amount of the principal and interest owing       and unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations that are       owing and unpaid and to file such other documents as may be necessary or advisable in order to                                            110 





 






      have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any       claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the       Issuing Banks and the Administrative Agent and their respective agents and counsel and all other       amounts due the Lenders, the Issuing Banks and the Administrative Agent under Section 2.10 and        Section 11.2) allowed in such judicial proceeding; and               (b)    to collect and receive any monies or other property payable or deliverable on any       such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank 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  and  the  Issuing  Banks,  to  pay  to  the  Administrative  Agent  any amount  due  for  the  reasonable  compensation,  expenses,  disbursements  and  advances  of  the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.10 and Section 11.2).         Section 10.10 Collateral Matters.               (a)    The Lenders (including each Issuing Bank and the Swingline Lender) irrevocably       authorize the Administrative Agent and the Collateral Agent, at its option and in its discretion,                      (i)    to release any Lien on any property granted to or held under any Credit              Document securing the Obligations (x) upon termination of the commitments under this              Agreement and payment in full of all Obligations (other than contingent indemnification              obligations) and the expiration or termination of all Letters of Credit (other than Letters              of Credit as to which other arrangements satisfactory to the Administrative Agent and the              applicable Issuing Bank shall have been made), (y) that is sold or otherwise disposed of              or to be sold or otherwise disposed of as part of or in connection with any sale or other              disposition permitted under the Credit Documents or consented to in accordance with the              terms of this Agreement, or (z) subject to Section 11.4, if approved, authorized or ratified              in writing by the Required Lenders;                      (ii)   to  subordinate  any  Lien  on  any  property  granted  to  or  held under  any              Credit Document securing the Obligations to the holder of any Lien on such property that              is permitted by Section 8.2(m); and                      (iii)  to release any Guarantor from its obligations under this Agreement and              the  other  Credit  Documents  if  such Person ceases to be a Credit Party as a result of a              transaction permitted under the Credit Documents.         Upon  request  by  the  Administrative  Agent  or  the  Collateral  Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in  particular  types  or  items  of  property,  or  to  release  any  Guarantor  from  its  obligations  under  this Agreement pursuant to this Section.               (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 Credit Party in connection therewith, nor shall the Administrative       Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of       the Collateral.                                            111 





 






       (c)    Anything  contained  in  any  of  the  Credit  Documents  to  the  contrary notwithstanding, each of the Credit Parties, the Administrative Agent, the Collateral Agent and each holder of the Obligations hereby agree that (i) no holder of the Obligations shall have any right individually to realize upon any of the Collateral or to enforce this Agreement, the Notes or any other Credit Agreement, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the holders of the Obligations  in  accordance  with  the  terms  hereof  and  all  powers,  rights  and  remedies under the Collateral Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral  at  any  such  sale  or  other  disposition  and  the  Collateral  Agent,  as  agent  for  and representative  of  the  holders  of  the  Obligations  (but  not  any  Lender  or  Lenders  in  its  or  their respective  individual  capacities  unless  the  Required  Lenders  shall  otherwise  agree  in  writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the  Obligations  as  a  credit  on  account  of  the  purchase  price  for  any  collateral  payable  by  the Collateral Agent at such sale or other disposition.         (d)    No Secured Swap Agreement or Secured Treasury Management Agreement will create  (or  be  deemed  to  create)  in  favor  of  any  Qualifying  Swap  Provider  or  any  Qualifying Treasury Management Bank, respectively that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of the Borrower or any other Credit Party  under  the  Credit  Documents  except  as  expressly  provided  herein  or  in  the  other  Credit Documents.  By accepting the benefits of the Collateral, each such Qualifying Swap Provider and Qualifying Treasury Management Bank shall be deemed to have appointed the Collateral Agent as  its  agent  and  agreed  to  be  bound  by  the  Credit  Documents  as a  holder  of  the  Obligations, subject to the limitations set forth in this clause (d).  Furthermore, it is understood and agreed that the Qualifying Swap Providers and Qualifying Treasury Management Banks, in their capacity as such, shall not have any right to notice of any action or to consent to, direct or object to any action hereunder or under any of the other Credit Documents or otherwise in respect of the Collateral (including  the  release  or  impairment  of  any  Collateral,  or  to  any  notice  of  or  consent  to  any amendment, waiver or modification of the provisions hereof or of the other Credit Documents) other than in its capacity as a Lender and, in any case, only as expressly provided herein.                        Section 11   MISCELLANEOUS  Section 11.1  Notices; Effectiveness; Electronic Communications.         (a)    Notices  Generally.  Except  in  the  case  of  notices  and  other  communications  expressly permitted to be given by telephone (and except as provided in subsection (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered  by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier  or  electronic  mail  as  follows,  and  all  notices  and  other  communications  expressly  permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:                (i)    if to the Administrative Agent, the Borrower or any other Credit Party, to        the address, telecopier number, electronic mail address or telephone number specified in        Appendix B:                                       112 





 






                    (ii)   if to any Lender, any Issuing Bank or Swingline Lender, to the address,              telecopier  number,  electronic  mail  address  or  telephone  number in  its  Administrative              Questionnaire on file with the Administrative Agent.  Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next  business  day  for  the  recipient).   Notices  and  other  communications  delivered  through  electronic communications  to  the  extent  provided  in  subsection (b)  below,  shall  be  effective  as  provided  in  such subsection (b).               (b)    Electronic Communications.  Notices and other communications to the Lenders        and  the  Issuing  Banks  hereunder  may  be  delivered  or  furnished  by  electronic  communication        (including  e-mail  and  Internet  or  intranet  websites)  pursuant  to  procedures  approved  by  the        Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any       Issuing  Bank  pursuant  to  Section 2  if  such  Lender  or  such  Issuing  Bank,  as  applicable,  has       notified the Administrative Agent and the Borrower that it is incapable of receiving notices under       such Section by electronic communication.  The Administrative Agent or any Credit Party may,       in its discretion, agree to accept notices and other communications to it hereunder by electronic       communications  pursuant  to  procedures  approved  by  it,  provided  that  approval  of  such       procedures may be limited to particular notices or communications.        Unless 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), 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, with respect to clauses (i) and (ii) above, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient               (c)    Change of Address, Etc.  Any party hereto may change its address or telecopier        number for notices and other communications hereunder by notice to the other parties hereto.               (d)    Platform.                      (i)   Each  Credit  Party agrees  that  the  Administrative  Agent  may,  but  shall              not be obligated to, make the Communications (as defined below) available to the Issuing              Banks and the other Lenders by posting the Communications on Intralinks, Syndtrak or a              substantially similar electronic transmission system (the “Platform”).                      (ii)  The Platform is provided “as is” and “as available.”  The Agent Parties              (as defined below) do not warrant the adequacy of the Platform and expressly disclaim              liability  for  errors  or  omissions  in  the  Communications.   No  warranty  of  any  kind,              express,  implied  or  statutory,  including,  without  limitation,  any  warranty  of              merchantability, fitness for a particular purpose, non-infringement of third-party rights or              freedom from viruses or other code defects, is made by any Agent Party in connection              with the Communications or the Platform.  In no event shall the Administrative Agent or              any  of  its  Related  Parties  (collectively,  the  “Agent  Parties”)  have  any  liability  to  the                                           113 





 






       Borrower  or  the  other  Credit  Parties,  any  Lender  or  any  other  Person  or  entity  for        damages of any kind, including, without limitation, direct or indirect, special, incidental        or  consequential  damages,  losses  or  expenses  (whether  in  tort, contract  or  otherwise)        arising  out  of  the  Borrower’s,  any  other  Credit  Party’s or  the  Administrative  Agent’s        transmission  of  communications  through  the  Platform.   “Communications”  means,        collectively,  any  notice,  demand,  communication,  information,  document  or  other        material provided by or on behalf of any Credit Party pursuant to any Credit Document or        the  transactions  contemplated therein which is distributed to the Administrative Agent,        any Lender or any Issuing Bank by means of electronic communications pursuant to this        Section, including through the Platform.   Section 11.2 Expenses; Indemnity; Damage Waiver.         (a)    Costs and Expenses.  The Credit Parties shall pay (i) all reasonable out-of-pocket expenses  incurred  by  the  Administrative  Agent  and  its  Affiliates  (including  the  reasonable out-of-pocket  fees,  charges  and  disbursements  of  counsel  for  the  Administrative  Agent)  in connection  with  the  syndication  of  the  credit  facilities  provided  for  herein,  the  preparation, negotiation,  execution,  delivery  and  administration  of  this  Agreement  and  the  other  Credit 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 reasonable out-of-pocket expenses incurred by the Administrative Agent, any Lender or any Issuing Bank (including the reasonable out-of-pocket fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or any Issuing Bank) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Credit Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.         (b)    Indemnification by the Credit  Parties.   The  Credit  Parties  shall  indemnify  the Administrative  Agent  (and  any  sub-agent  thereof),  the  Collateral  Agent  (and  any  sub-agent thereof),  each  Lender  and  each  Issuing  Bank,  and  each  Related  Party  of  any  of  the  foregoing Persons  (each  such  Person  being  called  an  “Indemnitee”)  against,  and  hold  each  Indemnitee  harmless from, any and all losses, claims, damages, liabilities and related expenses (including the  reasonable  out-of-pocket  fees,  charges  and  disbursements  of  any  counsel  for  any  Indemnitee),  incurred  by  any  Indemnitee  or  asserted  against  any  Indemnitee  by  any  Person  (including  the  Borrower or any other Credit Party) other than such Indemnitee or its Related Parties arising out  of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other  Credit  Document  or  any  agreement  or  instrument  contemplated  hereby  or  thereby,  the  performance by the parties hereto of their respective obligations hereunder or thereunder or the  consummation  of  the  transactions  contemplated  hereby  or  thereby,  (ii)  any  Loan  or  Letter  of  Credit or the use or proposed 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 Borrower or any other Credit Party, or any Environmental Liability related in  any  way  to  the  Borrower  or  any  of  its  Subsidiaries,  or  (iv)  any  actual  or  prospective  claim,  litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,  tort  or  any  other  theory,  whether  brought  by  a  third  party  or  by  the  Borrower  or  any  of  its  Subsidiaries,  and  regardless  of  whether  any  Indemnitee  is  a  party  thereto,  provided  that  such                                      114 





 






      indemnity  shall  not,  as  to  any  Indemnitee,  be  available  to  the extent  that  such  losses,  claims,       damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by       final  and  nonappealable  judgment  to  have  resulted  from  the  gross  negligence  or  willful       misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any Credit       Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or       under any other Credit Document, if the Borrower or such Credit Party has obtained a final and       nonappealable  judgment  in  its  favor  on  such  claim  as  determined  by  a  court  of  competent       jurisdiction.  This Section 11.2(b) shall not apply with respect to Taxes other than any Taxes that       represent losses, claims, damages, etc. arising from any non-Tax claim.               (c)    Reimbursement by Lenders.  To the extent that the Credit Parties for any reason        fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid       by  it  to  the  Administrative  Agent  (or  any  sub-agent  thereof),  the  Collateral  Agent  (or  any        sub-agent thereof), any Issuing Bank or any Related Party of any of the foregoing, each Lender        severally agrees to pay to the Administrative Agent (or any such sub-agent), the Collateral Agent        (or any such sub-agent), the applicable Issuing Bank or such Related Party, as the case may be,        such  Lender’s  pro  rata  share  (in  each  case,  determined  as  of  the  time  that  the  applicable        unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the        unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case        may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or        such Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing        acting for the Administrative Agent (or any such sub-agent) or such Issuing Bank in connection        with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the       provisions of this Agreement that provide that their obligations are several in nature, and not joint       and several.               (d)    Waiver of  Consequential  Damages, Etc.   To  the  fullest  extent  permitted  by        Applicable  Law,  none  of  the  Credit  Parties  shall  assert,  and  each  hereby  waives,  any  claim        against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive        damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result        of,  this  Agreement,  any  other  Credit  Document  or  any  agreement or  instrument  contemplated        hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use        of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any       damages  arising  from  the  use  by  unintended  recipients  of  any  information  or  other  materials       distributed  by  such  Indemnitee  through  telecommunications,  electronic  or  other  information       transmission  systems  in  connection  with  this  Agreement  or  the  other  Credit  Documents  or  the       transactions contemplated hereby or thereby.               (e)    Payments.  All amounts due under this Section shall be payable promptly, but in       any  event  within  ten  (10)  Business  Days  after  written  demand  therefor  (including  delivery  of       copies of applicable invoices).               (f)    Survival.  The provisions of this Section shall survive resignation or replacement       of the Administrative Agent, Collateral Agent, any Issuing Bank, the Swingline Lender or any       Lender, termination of the commitments hereunder and repayment, satisfaction and discharge of        the loans and obligations hereunder.         Section 11.3 Set-Off.   If  an  Event  of  Default  shall  have  occurred  and  be  continuing,  each Lender, each 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  Applicable  Law,  to  set  off  and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held                                            115 





 






and other obligations (in whatever currency) at any time owing by such Lender, such Issuing Bank or any such Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or  any  other  Credit  Document  to  such  Lender,  such  Issuing  Bank or  their  respective  Affiliates, irrespective  of  whether  or  not  such  Lender,  such  Issuing  Bank  or  such  Affiliate  shall  have  made  any demand  under  this  Agreement  or  any  other  Credit  Document  and  although  such  obligations  of  the Borrower  or  such  Credit  Party  may  be  contingent  or  unmatured  or  are  owed  to  a  branch,  office  or Affiliate of such Lender or such Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 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  Banks,  and  the  Lenders,  and  (y)  the  Defaulting  Lender  shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, each  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,  such  Issuing  Bank  or  their  respective Affiliates may have.  Each of the Lenders and the Issuing Banks agrees to notify the Borrower and the Administrative  Agent  promptly  after  any  such  setoff  and  application,  provided  that  the  failure  to  give such notice shall not affect the validity of such setoff and application.         Section 11.4 Amendments and Waivers.               (a)    Required Lenders’ Consent.  Subject to Section 11.4(b) and Section 11.4(c), no       amendment,  modification,  termination  or  waiver  of  any  provision  of  the  Credit  Documents,  or       consent to any departure by any Credit Party therefrom, shall in any event be effective without       the written concurrence of the Administrative Agent and the Required Lenders; provided that (i)       the  Administrative  Agent  may,  with  the  consent  of  the  Borrower only,  amend,  modify  or       supplement this Agreement to cure any ambiguity, omission, defect or inconsistency, so long as       such amendment, modification or supplement does not adversely affect the rights of any Lender       or  any  Issuing  Bank,  (ii)  each  of  the  Fee  Letter  and  any  Auto  Borrower  Agreement  may  be       amended,  or  rights  or  privileges  thereunder  waived,  in  a  writing  executed  only  by  the  parties       thereto,  (iii)  no  Defaulting  Lender  shall  have  any  right  to  approve  or  disapprove  (x)  any       amendment, waiver or consent hereunder, except that the Commitments, Loans and/or Letter of       Credit Obligations of such Lender may not be increased or extended without the consent of such       Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or       each affected Lender except to the extent such waiver, amendment or modification affects such       Defaulting Lender differently than other affected Lenders, (iv) each Lender is entitled to vote as       such  Lender  sees  fit  on  any  bankruptcy  reorganization  plan  that  affects  the  Loans,  and  each       Lender  acknowledges  that  the  provisions  of  Section  1126(c)  of  the  Bankruptcy  Code  of  the       United States supersedes the unanimous consent provisions set forth herein and (v) the Required       Lenders  shall  determine  whether  or  not  to  allow  any  Credit  Party  to  use  cash  collateral  in  the       context of a bankruptcy or insolvency proceeding and such determination shall be binding on all       of the Lenders.               (b)    Affected Lenders’ Consent.  Without the written consent of each Lender (other        than  a  Defaulting  Lender  except  as  provided  in  clause  (a)(iii)  above)  that  would  be  affected        thereby,  no  amendment,  modification,  termination,  or  consent  shall  be  effective  if  the  effect        thereof would:                                            116 





 






              (i)    extend the Revolving Commitment Termination Date;                (ii)   waive,  reduce  or  postpone  any  scheduled  repayment  (but  not        prepayment) or alter the required application of any payment pursuant to Section 2.13(d)        or  any  prepayment  pursuant  to  Section 2.12  or  the  application  of  funds  pursuant  to        Section 9.3,  as applicable;                (iii)  extend  the  stated  expiration  date  of  any  Letter  of  Credit,  beyond  the        Revolving Commitment Termination Date;                (iv)  reduce the principal of or the rate of interest on any Loan (other than any        waiver  of  the  imposition  of  the  Default  Rate  pursuant  to  Section 2.9)  or  any  fee  or        premium  payable  hereunder;  provided,  however,  that  only  the  consent  of  the  Required        Lenders shall be necessary (A) to amend the definition of “Default Rate” or to waive any        obligation  of  the  Borrower  to  pay  interest  at  the  Default  Rate or  (B)  to  amend  any        financial covenant hereunder (or any defined term used therein) even if the effect of such        amendment  would  be  to  reduce  the  rate  of  interest  on  any  Loan  or  to  reduce  any  fee        payable hereunder;                (v)   extend the time for payment of any such interest or fees;                (vi)  reduce  the  principal  amount  of  any  Loan  or  any  reimbursement        obligation in respect of any Letter of Credit;                (vii) amend, modify, terminate or waive any provision of this Section 11.4(b)        or Section 11.4(c) or any other provision of this Agreement that expressly provides that        the consent of all Lenders is required;                (viii) change the percentage of the outstanding principal amount of Loans that        is  required  for  the  Lenders  or  any  of  them  to  take  any  action  hereunder  or  amend  the        definition  of  “Required  Lenders” or  “Term  Loan  Commitment  Percentage”,  “Fourth        Amendment  Replacement  Term  Loan  Commitment  Percentage”  or  “Revolving        Commitment Percentage” or modify the amount of the Commitment of any Lender;                (ix)  release all or substantially all of the Collateral or all or substantially all        of  the  Guarantors  from  their  obligations  hereunder,  in  each  case,  except  as  expressly        provided in the Credit Documents; or                (x)   consent to the assignment or transfer by the Borrower of any of its rights        and obligations under any Credit Document (except pursuant to a transaction permitted        hereunder).         (c)    Other  Consents.   No  amendment,  modification,  termination  or  waiver  of  any provision  of  the  Credit  Documents,  or  consent  to  any  departure by  the  Borrower  or  any  other Credit Party therefrom, shall:                (i)    increase  any  Revolving  Commitment  of  any  Lender  over  the  amount        thereof  then  in  effect  without  the  consent  of  such  Lender;  provided,  no  amendment,        modification or waiver of any condition precedent, covenant, Default or Event of Default        shall constitute an increase in any Revolving Commitment of any Lender;                                       117 





 






              (ii)   amend, modify, terminate or waive any provision hereof relating to the        Swingline Sublimit or the Swingline Loans without the consent of the Swingline Lender;                (iii)  amend, modify, terminate or waive any obligation of Lenders relating to        the purchase of participations in Letters of Credit as provided in Section 2.3(e) without        the written consent of the Administrative Agent and of each Issuing Bank; or                (iv)  amend, modify, terminate or waive any provision of this Section 11 as        the same applies to any Agent, or any other provision hereof as the same applies to the        rights or obligations of any Agent, in each case without the consent of such Agent.         (d)    Execution of Amendments, etc.  The Administrative Agent may, but shall have  no  obligation  to,  with  the  concurrence  of  any  Lender,  execute  amendments,  modifications,  waivers or consents on behalf of such Lender.  Any waiver or consent shall be effective only in  the specific instance and for the specific purpose for which it was given.  No notice to or demand  on any Credit Party in any case shall entitle any Credit Party to any other or further notice or  demand in similar or other circumstances.  Any amendment, modification, termination, waiver or  consent effected in accordance with this Section 11.4 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Borrower, on such Borrower.  Section 11.5  Successors and Assigns.         (a)    Successors and  Assigns  Generally.   The  provisions  of  this  Agreement  shall  be binding  upon  and  inure  to  the  benefit  of  the  parties  hereto  and  their  respective  successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of  subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject  to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer  by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied,  shall  be  construed  to  confer  upon any  Person  (other  than  the  parties  hereto,  their  respective  successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of  this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the  Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by  reason of this Agreement.         (b)    Assignments by Lenders.  Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement (including all or a  portion of its Commitments, Loans and obligations hereunder at the time owing to it); provided that any such assignment shall be subject to the following conditions:                (i)    Minimum Amounts.                      (A)    in the case of an assignment of the entire remaining amount of               the  assigning  Lender’s  commitments  and  the  loans  at  the  time  owing  to  it  (in               each case with respect to any credit facility) or contemporaneous assignments to               Approved  Funds  that  equal  at  least  to  the  amounts  specified  in subsection                (b)(i)(B)  of  this  Section  in  the  aggregate)  or  in  the  case  of  an  assignment  to  a               Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need               be assigned; and                                     118 





 






             (B)    in any case not described in subsection (b)(i)(A) of this Section,        the aggregate amount of the commitment (which for this purpose includes loans        and obligations in respect thereof outstanding thereunder) or, if the commitment        is  not  then  in  effect,  the  principal  outstanding  balance  of  the  loans  of  the        assigning Lender subject to each such assignment (determined as of the date the        Assignment  Agreement  with  respect  to  such  assignment  is  delivered  to  the        Administrative  Agent  or,  if  “Trade  Date”  is  specified  in  the  Assignment        Agreement, as of the Trade Date) shall not be less than $2,500,000, in the case of        any  assignment  in  respect  of  any  Revolving  Commitments  and/or  Revolving        Loans, or $1,000,000, in the case of any assignment in respect of any Term Loan        Commitments and/or Term Loans, unless each of the Administrative Agent and,        so  long  as  no  Event  of  Default  shall  have  occurred  and  is  continuing,  the        Borrower otherwise consents (each such consent not to be unreasonably withheld        or delayed).         (ii)   Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an assignment  of  a  proportionate  part  of  all  the  assigning  Lender’s  rights  and  obligations under this Agreement with respect to the Commitments and Loans assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and  obligations  on  a  non-pro  rata  basis  as  between  its  Revolving  Commitment  and/or Revolving Loans, on the one hand, and any Term Loan Commitment and/or Term Loans, on the other the hand.         (iii)  Required  Consents.   No  consent  shall  be  required  for  any  assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:               (A)    the  consent  of  the  Borrower  (such  consent  not  to  be        unreasonably  withheld  or  delayed)  shall  be  required  unless  (x) an  Event  of        Default shall have occurred and is continuing at the time of such assignment or        (y)  such  assignment  is  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved        Fund; provided that the Borrower shall be deemed to have consented to any such        assignment unless it shall object thereto by written notice to the Administrative        Agent within five (5) Business Days after having received notice thereof;               (B)    the consent of the Administrative Agent (such consent not to be        unreasonably withheld or delayed) shall be required for assignments in respect of        (i)  commitments  under  revolving  credit  facilities  and  unfunded commitments        under term loan facilities if such assignment is to a Person that is not a Lender        with a commitment in respect of such facility, an Affiliate of such Lender or an        Approved  Fund  with  respect  to  such  Lender  or  (ii)  a  funded  Term  Loan  to  a        Person who is not a Lender, an Affiliate of a Lender or an Approved Fund;               (C)    the  consent  of  the  Issuing  Bank  (such  consent  not  to  be        unreasonably  withheld  or  delayed)  shall  be  required  for  any  assignment  in        respect of any Revolving Commitment; and               (D)    the  consent  of  the  Swingline  Lender  (such  consent  not  to  be        unreasonably  withheld  or  delayed)  shall  be  required  for  any  assignment  in        respect of any Revolving Commitment.         (iv)  Assignment  Agreement.   The  parties  to  each  assignment  shall  execute and  deliver  to  the  Administrative  Agent  an  Assignment  Agreement,  together  with  a                              119 





 






             processing and recordation fee in the amount of $3,500, unless waived, in whole or in              part  by  the  Administrative Agent in its discretion.  The assignee, if it is not a Lender,              shall deliver to the Administrative Agent an Administrative Questionnaire.                      (v)   No Assignment Certain Persons.  No such assignment shall be made to              (A)  the  Borrower  or  any  of  the Borrower’s  Affiliates  or  Subsidiaries  or  (B)  to  any              Defaulting  Lender  or  any  of  its  Subsidiaries,  or  any  Person  who,  upon  becoming  a              Lender hereunder, would constitute any of the foregoing Persons described in this clause               (B).                      (vi)  No Assignment to Natural Persons.  No such assignment shall be made to              a natural person.                      (vii) Certain  Additional Payments.   In  connection  with  any  assignment  of              rights and obligations of any Defaulting Lender hereunder, no such assignment shall be              effective unless and until, in addition to the other conditions thereto set forth herein, the              parties  to  the  assignment  shall  make  such  additional  payments  to  the  Administrative              Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which              may  be  outright  payment,  purchases  by  the  assignee  of  participations  or              subparticipations, or other compensating actions, including funding, with the consent of              the  Borrower  and  the  Administrative  Agent,  the  applicable  pro  rata  share  of  Loans              previously  requested  but  not  funded  by  the  Defaulting  Lender,  to  each  of  which  the              applicable  assignee  and  assignor  hereby  irrevocably  consent),  to  (x)  pay  and satisfy in              full  all  payment  liabilities  then  owed  by  such  Defaulting  Lender  to  the  Administrative              Agent, each Issuing Bank, each Swingline Lender and each other Lender hereunder (and              interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share              of all Loans and participations in Letters of Credit and Swingline Loans in accordance              with its Revolving Commitment Percentage.  Notwithstanding the foregoing, in the event              that any assignment of rights and obligations of any Defaulting Lender hereunder shall              become effective under Applicable Law without compliance with the provisions of this              paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender              for all purposes of this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section,  from  and  after  the  effective  date  specified  in  each  Assignment  Agreement,  the  assignee thereunder  shall  be  a  party  to  this  Agreement  and,  to  the  extent  of  the  interest  assigned  by  such Assignment  Agreement,  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 Agreement, be  released  from  its  obligations  under  this  Agreement  (and,  in the  case  of  an  Assignment  Agreement 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 2.16, 2.17 and 11.2 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  The Borrower will execute and deliver on request, at their own expense, Notes to  the  assignee  evidencing  the  interests  taken  by  way  of  assignment  hereunder.   Any  assignment  or transfer  by  a  Lender  of  rights  or  obligations  under  this  Agreement  that  does  not  comply  with  this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.                                             120 





 






             (c)    Register.  The Administrative Agent, acting solely for this purpose as an agent of the  Borrower,  shall  maintain  at  one  of  its  offices  in  the  United  States,  a  copy  of  each  Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and Obligations owing to,  each  Lender  pursuant  to  the  terms  hereof  from  time  to  time (the  “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.               (d)    Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of  such  Lender’s  rights  and/or obligations  under  this  Agreement  (including  all  or  a  portion  of  its Commitment  and/or  the  Loans  owing  to  it);  provided  that  (i)  such  Lender’s  obligations  under  this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto  for  the  performance  of  such  obligations,  and  (iii)  the  Borrower,  the  Administrative  Agent,  the Issuing Banks and Lenders shall continue to deal solely and directly with such Lender in connection with such  Lender’s  rights  and  obligations  under  this  Agreement.   For  the  avoidance  of  doubt,  each  Lender shall be responsible for the indemnity under Section 11.2(c) with respect to any payments made by such Lender to its Participant(s).        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 clauses (b) or (c) of Section 11.4 that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.2, 3.1 and 3.3(subject to  the  requirements  and  limitations  therein,  including  the  requirements  under  Section  3.3(f)  (it  being understood  that  the  documentation  required  under  Section  3.3(f)  shall  be  delivered  to  the participating Lender)) 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 2.17 and 3.4 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 3.2 or 3.3, 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.   Each  Lender  that  sells  a  participation  agrees,  at  the  Borrower’s  request  and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section  2.17  with  respect  to  any  Participant.   To  the  extent  permitted  by  law,  each  Participant  also  shall  be entitled to the benefits of Section 11.3 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit 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 Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all                                            121 





 






purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative  Agent  (in  its  capacity  as  Administrative  Agent) shall  have  no  responsibility  for maintaining a Participant Register.               (e)    Certain Pledges.  Any Lender may at any time pledge or assign a security interest       in all or any portion of its rights under this Agreement, or any promissory notes evidencing its       interests hereunder, to secure obligations of such Lender, including any pledge or assignment to       secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall       release  such  Lender  from  any  of  its  obligations  hereunder  or  substitute  any  such  pledgee  or       assignee for such Lender as a party hereto.        Section 11.6  Independence of Covenants.  All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.         Section 11.7 Survival of  Representations,  Warranties and  Agreements.   All  representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension.  Notwithstanding anything herein or implied by law to the contrary, the agreements of each Credit Party set forth in Section 3.1(c), Section 3.2, Section 3.3, Section 11.2, Section 11.3, and Section 11.10 and the agreements of the Lenders and the Agents set forth in Section 2.14, Section 10.3  and  Section  11.2(c)  shall  survive  the  payment  of  the  Loans,  the  cancellation,  expiration  or  cash collateralization of the Letters of Credit, and the termination hereof.         Section 11.8 No Waiver; Remedies Cumulative.  No failure or delay on the part of any Agent or  any  Lender  in  the  exercise  of  any  power,  right  or  privilege hereunder  or  under  any  other  Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence  therein,  nor  shall  any  single  or  partial  exercise of  any  such  power,  right  or  privilege preclude other or further exercise thereof or of any other power, right or privilege.  The rights, powers and remedies  given  to  each  Agent  and  each  Lender  hereby  are  cumulative  and  shall  be  in  addition  to  and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the  other  Credit  Documents,  any  Swap  Agreements  or  any  Treasury  Management  Agreements.   Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.         Section 11.9 Marshalling; Payments Set Aside.  Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in  payment  of  any  or  all  of  the  Obligations.   To  the  extent  that  any  Credit  Party  makes  a payment or payments to the Administrative Agent, the Issuing Banks, the Swingline Lender or the Lenders (or to the Administrative  Agent,  on  behalf  of  Lenders),  or  the  Administrative  Agent,  the  Collateral  Agent,  the Issuing  Banks  or  the  Lenders  enforce  any  security  interests  or exercise  their  rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to  be  satisfied,  and  all  Liens,  rights  and  remedies  therefor  or  related  thereto,  shall  be  revived  and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.                                             122 





 






      Section 11.10 Severability.   In  case  any  provision  in  or  obligation  hereunder  or  any  Note or other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.         Section 11.11 Obligations Several; Independent Nature of Lenders’ Rights.  The obligations of the Lenders hereunder are several and no Lender shall be responsible for the obligations or Revolving Commitment or Term Loan Commitment of any other Lender hereunder.  Nothing contained herein or in any  other  Credit  Document,  and no  action  taken  by  the  Lenders  pursuant  hereto  or  thereto,  shall  be deemed  to  constitute  the  Lenders  as  a  partnership,  an association, a joint venture or any other kind of entity.  The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and, subject to Section 10.9, each Lender shall be entitled to protect and enforce its rights arising under this Agreement and the other Credit Documents and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.         Section 11.12 Headings.   Section  headings  herein  are  included  herein  for  convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.        Section 11.13 Applicable Laws.               (a)    Governing Law.   This  Agreement  shall  be  governed  by,  and  construed  in        accordance with, the law of the State of New York.               (b)    Submission to  Jurisdiction.   Each  party  hereto  irrevocably  and  unconditionally        submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State        of New York sitting in New York county and of the United States District Court of the Southern        District of New York, any appellate court from any thereof or any jurisdiction where a Vessel        may be found, in any action or proceeding arising out of or relating to this Agreement or any        other  Credit  Document,  or  for  recognition  or  enforcement  of  any  judgment,  and  each  of  the        parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action        or  proceeding  may  be  heard  and  determined  in  such  New  York State  court  or  court  in  a        jurisdiction where a Vessel is located, to the fullest extent permitted by Applicable Law, in such        Federal  court.   Each  of  the  parties  hereto  agrees  that  a  final judgment  in  any  such  action  or        proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment        or  in  any  other  manner  provided  by  law.   Nothing  in  this  Agreement  or  in  any  other  Credit        Document  shall  affect  any  right  that  any  party  may  otherwise  have  to  bring  any  action  or        proceeding relating to this Agreement or any other Credit Document against any Credit Party or        its properties in the courts of any jurisdiction.               (c)    Waiver of Venue.  Each party hereto irrevocably and unconditionally waives, to       the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to       the laying of venue of any action or proceeding arising out of or relating to this Agreement or any       other  Credit  Document  in  any  court  referred  to  in  subsection (b) of this Section.  Each of the        parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the        defense of an inconvenient forum to the maintenance of such action or proceeding in any such        court.               (d)    Service of Process.  Each party hereto irrevocably consents to service of process        in the manner provided for notices in Section 11.1.  Nothing in this Agreement will affect the       right of any party hereto to serve process in any other manner permitted by Applicable Law.                                            123 





 






      Section 11.14 WAIVER OF JURY TRIAL.           EACH  PARTY  HERETO  HEREBY IRREVOCABLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR  INDIRECTLY  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER CREDIT  DOCUMENT  OR  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  OR  THEREBY (WHETHER  BASED  ON  CONTRACT,  TORT  OR  ANY  OTHER  THEORY).   EACH  PARTY HERETO  (A)  CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY        OF  ANY OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER  AND  (B)  ACKNOWLEDGES  THAT  IT  AND  THE  OTHER  PARTIES  HERETO  HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS  AND  CERTIFICATIONS  IN  THIS SECTION.         Section 11.15 Confidentiality.   Each  of  the  Administrative  Agent,  the  Collateral  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 Affiliates and to its Related Parties (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 required or requested  by  any  regulatory  authority  purporting  to  have  jurisdiction  over  such  Person  or  its  Related Parties  (including  any  self-regulatory  authority,  such  as  the  National  Association  of  Insurance Commissioners),  (c)  to  the  extent  required  by  Applicable  Laws  or  regulations  or  by  any  subpoena  or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any  other  Credit  Document  or  the  enforcement  of  rights  hereunder  or  thereunder,  (f)  subject  to  an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in (including, for purposes hereof, any new lenders invited to join hereunder on an increase in the Loans and Commitments hereunder, whether by exercise of an accordion, by way of amendment or otherwise), any of its rights or obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction  under  which  payments are to be made by reference to the Borrower or its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating  the  Borrower  or  its  Subsidiaries  or  the  credit  facilities  provided  for  herein,  or  (ii)  the  CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided for herein, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, any Issuing Bank  or  any  of  their  respective  Affiliates  on  a  nonconfidential  basis  from  a  source  other  than  the Borrower.         For purposes of this Section, “Information” means all information received from the Borrower or any  of  its  Subsidiaries  relating  to  the  Borrower  or  any  of  its Subsidiaries  or  any  of  their  respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries; provided that, in the case of information received from the Borrower or any of its Subsidiaries 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.                                            124 





 






Each of the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders acknowledges that  (i)  the  Information  may  include  material  non-public  information  concerning  the  Borrower  or  any Subsidiary, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information and (iii) it will handle such material non-public information in accordance with Applicable Law, including United States federal and state securities laws.         Section 11.16 Usury  Savings Clause.   Notwithstanding  any  other  provision  herein,  the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under Applicable Laws shall not exceed  the  Highest  Lawful  Rate.   If  the  rate  of  interest  (determined  without  regard  to  the  preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the aggregate outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect.  In addition, if when the Loans made  hereunder  are  repaid  in  full  the  total  interest  due  hereunder  (taking  into  account  the  increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated  rates  of  interest  set  forth  in  this  Agreement  had  at  all  times  been  in  effect,  then  to  the  extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful  Rate  had  at  all  times  been  in  effect.   Notwithstanding  the  foregoing,  it  is  the  intention  of  the Lenders and each of the Credit Parties to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the aggregate outstanding amount of the Loans made hereunder or be refunded to each of the applicable Credit Parties.In determining whether the interest contracted for, charged,  or  received  by  the  Administrative  Agent  or  a  Lender  exceeds  the  Highest  Lawful  Rate,  such Person  may,  to  the  extent  permitted  by  Applicable  Laws,  (a)  characterize  any  payment  that  is  not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.         Section 11.17 Counterparts;  Integration;  Effectiveness.   This  Agreement  may  be  executed  in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other  Credit  Documents,  and  any  separate  letter  agreements  with  respect  to  fees  payable  to  the Administrative Agent, 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 5, this Agreement shall become effective when it shall have been  executed  by  the  Administrative  Agent  and  when  the  Administrative  Agent  shall  have  received counterparts  hereof  that,  when  taken  together,  bear  the  signatures  of  each  of  the  other  parties  hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging  means  (e.g.  “pdf”  or  “tif”  format)  shall  be  effective  as  delivery  of  a  manually  executed counterpart of this Agreement.         Section 11.18 No Advisory of Fiduciary Relationship.  In connection with all aspects of each transaction  contemplated  hereby  (including  in  connection  with  any  amendment,  waiver  or  other modification  hereof  or  of  any  other  Credit  Document),  each  of  the  Credit  Parties  acknowledges  and agrees,  and  acknowledges  its  Affiliates’  understanding,  that:  (a)(i)  the  arranging  and  other  services regarding  this  Agreement  provided  by  the  Administrative  Agent, are  arm’s-length  commercial transactions between the Credit Parties, on the one hand, and the Administrative Agent, on the other hand,                                            125 





 






(ii) the Credit Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each of the Credit Parties is capable of evaluating, and understands and  accepts,  the  terms,  risks  and  conditions  of  the  transactions  contemplated  hereby  and  by  the  other Credit Documents; (b)(i) the Administrative Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary, for any Credit Party or any of their Affiliates or any other Person and (ii) the Administrative  Agent  does  not  have  any  obligation  to  any  Credit  Party  or  any  of  their  Affiliates  with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the  other  Credit  Documents;  and (c)  the  Administrative  Agent  and  its  respective  Affiliates  may  be engaged in a broad range of transactions that involve interests that differ from those of the Credit Parties and their Affiliates, and the Administrative Agent does not have any obligation to disclose any of such interests to any Credit Party or its Affiliates.  To the fullest extent permitted by law, each of the Credit Parties hereby waives and releases, any claims that it may have against the Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.         Section 11.19 Electronic  Execution of  Assignments and Other  Documents.   The  words “execution,”  “signed,”  “signature,”  and  words  of  like  import  in  any  Assignment  Agreement  or  in  any amendment,  waiver,  modification  or  consent  relating  hereto  shall  be  deemed  to  include  electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity  or  enforceability  as  a  manually  executed  signature  or the  use  of  a  paper-based  recordkeeping system,  as  the  case  may  be,  to  the  extent  and  as  provided  for  in  any  Applicable  Laws,  including  the Federal  Electronic  Signatures  in  Global  and  National  Commerce  Act,  the  New  York  State  Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.         Section 11.20 USA PATRIOT Act.  Each Lender subject to the Act hereby notifies each of the Credit  Parties  that  pursuant  to  the  requirements  of  the  Patriot  Act,  it  is  required  to  obtain,  verify  and record  information  that  identifies  each  of  the  Credit  Parties, which  information  includes  the  name  and address of each of the Credit Parties and other information that will allow such Lender to identify each of the Credit Parties in accordance with the Patriot Act.        Section 11.21 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, to the extent such liability is unsecured, may be subject  to  the  write-down  and  conversion  powers  of  an  EEA  Resolution  Authority  and  agrees  and consents to, and acknowledges and agrees to be bound by:               (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 undertaking, or a              bridge  institution  that  may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such              shares or other instruments of ownership will be accepted by it in lieu of any rights with              respect to any such liability under this Agreement or any other Loan Document; or                                           126 





 






       (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.                   [Signatures on Following Page(s)]                                127 





 






                        ANNEX B                 Exhibit 2.1 to Credit Agreement                         [Attached]                                  





 






                                        Funding Notice                                               Date:    ____________ __, 201_    To:   Regions Bank, as Administrative Agent    Re:   Credit  Agreement  dated  as  of August  5,  2015  (as  amended,  restated,  supplemented,  increased,        extended,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”)        among Orion Marine Group, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries        of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time        party  thereto  and  Regions  Bank,  as  Administrative  Agent  and  Collateral  Agent.   Capitalized        terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.    Ladies and Gentlemen:    The undersigned hereby requests (select one):        A Borrowing of Revolving Loans        A Borrowing of Swingline Loans        A Borrowing of Term Loans    1.     On _______________, 201__ (which is a Business Day).    2.    In the amount of $__________.    3.    Comprised of ______________ (Type of Loan requested).    4.    For Adjusted LIBOR Rate Loans: with an Interest Period of __________ months.    The undersigned Borrower hereby represents and warrants that:           (i)   after giving effect to any Borrowing of the requested Term Loans, if any, the Outstanding  Amount of each Term Loan shall not exceed the applicable Term Loan Commitment;                  (ii)  solely  to  the  extent  the  Limited  Revolver  Availability  Amount  is  not  in  effect,  after  giving effect to the Borrowing of the requested Revolving Loans or Swingline Loans, as and to the extent  applicable,  (x)  the  Outstanding  Amount  of  Revolving  Obligations  shall  not  exceed  the  Aggregate  Revolving  Commitments  and  (y)  the  Outstanding  Amount  of  Swingline  Loans  shall  not  exceed  the  Swingline Sublimit; and                   (iii)  solely to the extent the Limited Revolver Availability Amount is in effect, after giving  effect  to  the  Borrowing  of  the  requested  Revolving  Loans  or  Swingline  Loans,  as  and  to  the  extent  applicable, (x) the Outstanding Amount of Revolving Obligations shall not exceed the Limited Revolver  Availability Amount and (y) the Outstanding Amount of Swingline Loans shall not exceed the Swingline  Sublimit.    The undersigned Borrower hereby represents and warrants that each of the conditions set forth in Section  5.2 of the Credit Agreement has been satisfied on and as of the date of such Borrowing.                                              33917747.v3  





 






                 [Signature on Following Page]                               





 






                 ORION GROUP HOLDINGS, INC.    By:   Name:    Title: