exhibit101ameresco-fifth






EXHIBIT 10.1    Execution Version      101652522v.7  Deal CUSIP #: 02361MAG5  Revolver CUSIP #:02361MAH3  Term A Loan CUSIP #:02361MAJ9  Delayed Draw Term A Loan CUSIP #:02361MAK6    __________________________________________________________________________________  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  Dated as of March 4, 2022  among  AMERESCO, INC.,  as the Borrower,  CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,  as the Guarantors,  BANK OF AMERICA, N.A.,  as Administrative Agent, Swingline Lender and  L/C Issuer,  and  THE LENDERS PARTY HERETO  BOFA SECURITIES, INC., FIFTH THIRD SECURITIES, INC. AND  KEYBANC CAPITAL MARKETS, INC.,  as Joint Lead Arrangers and Joint Bookrunners      WEBSTER BANK, N.A.,  as Co-Documentation Agent  





 






  i  TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 1  1.01 Defined Terms. ................................................................................................................... 1  1.02 Other Interpretive Provisions ............................................................................................ 41  1.03 Accounting Terms. ............................................................................................................ 41  1.04 Rounding ........................................................................................................................... 42  1.05 Times of Day .................................................................................................................... 42  1.06 Letter of Credit Amounts .................................................................................................. 43  1.07 Interest Rates ..................................................................................................................... 43  1.08 Exchange Rates; Currency Equivalents. ........................................................................... 43  1.09 Additional Alternative Currencies. ................................................................................... 43  1.10 Change of Currency. ......................................................................................................... 44  ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS .............................................................. 45  2.01 Loans. ................................................................................................................................ 45  2.02 Borrowings, Conversions and Continuations of Loans. ................................................... 46  2.03 Letters of Credit. ............................................................................................................... 48  2.04 Swingline Loans. .............................................................................................................. 57  2.05 Prepayments. ..................................................................................................................... 59  2.06 Termination or Reduction of Commitments. .................................................................... 63  2.07 Repayment of Loans. ........................................................................................................ 64  2.08 Interest and Default Rate. ................................................................................................. 65  2.09 Fees ................................................................................................................................... 66  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 67  2.11 Evidence of Debt. ............................................................................................................. 67  2.12 Payments Generally; Administrative Agent’s Clawback. ................................................. 68  2.13 Sharing of Payments by Lenders ...................................................................................... 70  2.14 Cash Collateral. ................................................................................................................. 71  2.15 Defaulting Lenders. .......................................................................................................... 72  2.16 Increase in Revolving Facility. ......................................................................................... 74  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ....................................................... 76  3.01 Taxes. ................................................................................................................................ 76  3.02 Illegality ............................................................................................................................ 80  3.03 Inability to Determine Rates. ............................................................................................ 80  3.04 Increased Costs. ................................................................................................................ 83  3.05 Compensation for Losses .................................................................................................. 84  3.06 Mitigation Obligations; Replacement of Lenders. ............................................................ 85  3.07 Survival. ............................................................................................................................ 85  ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS .............................................. 85  4.01 Conditions of Initial Credit Extension .............................................................................. 85  4.02 Conditions to all Credit Extensions .................................................................................. 88  ARTICLE V REPRESENTATIONS AND WARRANTIES ..................................................................... 89  5.01 Existence, Qualification and Power .................................................................................. 89  5.02 Authorization; No Contravention ..................................................................................... 89  5.03 Governmental Authorization; Other Consents .................................................................. 89  5.04 Binding Effect ................................................................................................................... 89  





 






ii  5.05 Financial Statements; No Material Adverse Effect........................................................... 90  5.06 Litigation and Environmental Matters. ............................................................................. 91  5.07 Compliance with Laws and Agreements .......................................................................... 91  5.08 Properties. ......................................................................................................................... 91  5.09 Insurance ........................................................................................................................... 92  5.10 Taxes ................................................................................................................................. 92  5.11 ERISA Compliance. .......................................................................................................... 92  5.12 Margin Regulations; Investment Company Act................................................................ 93  5.13 Disclosure ......................................................................................................................... 94  5.14 Capitalization .................................................................................................................... 94  5.15 Subsidiaries. ...................................................................................................................... 94  5.16 Compliance with Laws and Agreements .......................................................................... 95  5.17 Solvency............................................................................................................................ 95  5.18 Casualty, Etc ..................................................................................................................... 95  5.19 Sanctions Concerns and Anti-Corruption Laws................................................................ 95  5.20 Material Indebtedness, Liens and Agreements. ................................................................ 96  5.21 Federal Reserve Regulations............................................................................................. 96  5.22 Force Majeure ................................................................................................................... 96  5.23 Bank Accounts .................................................................................................................. 96  5.24 Matters Relating to Inactive Subsidiaries ......................................................................... 96  5.25 EEA Financial Institutions ................................................................................................ 97  5.26 Covered Entities ................................................................................................................ 97  5.27 Beneficial Ownership Certification .................................................................................. 97  5.28 Labor and Employment Matters. ...................................................................................... 97  ARTICLE VI AFFIRMATIVE COVENANTS ......................................................................................... 97  6.01 Financial Statements and Other Information .................................................................... 97  6.02 Notices of Material Events.............................................................................................. 100  6.03 Existence; Conduct of Business ...................................................................................... 101  6.04 Payment of Obligations .................................................................................................. 101  6.05 Maintenance of Properties; Insurance ............................................................................. 101  6.06 Books and Records; Inspection Rights ........................................................................... 101  6.07 Fiscal Year ...................................................................................................................... 102  6.08 Compliance with Laws ................................................................................................... 102  6.09 Use of Proceeds .............................................................................................................. 102  6.10 Certain Obligations Respecting Subsidiaries; Additional Guarantors. ........................... 102  6.11 ERISA ............................................................................................................................. 103  6.12 Environmental Matters; Reporting ................................................................................. 103  6.13 Matters Relating to Additional Real Property Collateral. ............................................... 103  6.14 Anti-Corruption Laws ..................................................................................................... 104  6.15 Further Assurances ......................................................................................................... 104  ARTICLE VII NEGATIVE COVENANTS ............................................................................................. 105  7.01 Indebtedness.................................................................................................................... 105  7.02 Liens ............................................................................................................................... 106  7.03 Contingent Liabilities ..................................................................................................... 107  7.04 Fundamental Changes; Asset Sales; Permitted Acquisitions. ......................................... 108  7.05 Investments; Hedging Agreements. ................................................................................ 111  7.06 Restricted Junior Payments. ............................................................................................ 112  7.07 Transactions with Affiliates ............................................................................................ 113  7.08 Restrictive Agreements ................................................................................................... 113  





 






iii  7.09 Sale-Leaseback Transactions .......................................................................................... 114  7.10 Certain Financial Covenants. .......................................................................................... 114  7.11 Lines of Business ............................................................................................................ 114  7.12 Other Indebtedness ......................................................................................................... 114  7.13 Modifications of Certain Documents .............................................................................. 114  7.14 Sanctions. ........................................................................................................................ 114  7.15 Anti-Corruption Laws ..................................................................................................... 115  ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES .................................................................. 115  8.01 Events of Default ............................................................................................................ 115  8.02 Remedies upon Event of Default .................................................................................... 117  8.03 Application of Funds. ..................................................................................................... 118  ARTICLE IX ADMINISTRATIVE AGENT ........................................................................................... 119  9.01 Appointment and Authority. ........................................................................................... 119  9.02 Rights as a Lender. .......................................................................................................... 120  9.03 Exculpatory Provisions. .................................................................................................. 120  9.04 Reliance by Administrative Agent .................................................................................. 121  9.05 Delegation of Duties ....................................................................................................... 121  9.06 Resignation of Administrative Agent. ............................................................................ 122  9.07 Non-Reliance on Administrative Agent, the Arranger and the Other Lenders ............... 123  9.08 No Other Duties, Etc ....................................................................................................... 124  9.09 Administrative Agent May File Proofs of Claim; Credit Bidding. ................................. 124  9.10 Collateral and Guaranty Matters. .................................................................................... 125  9.11 Secured Cash Management Agreements and Secured Hedge Agreements .................... 126  9.12 Certain ERISA Matters. .................................................................................................. 126  9.13 Recovery of Erroneous Payments ................................................................................... 127  ARTICLE X CONTINUING GUARANTY ............................................................................................ 128  10.01 Guaranty.......................................................................................................................... 128  10.02 Rights of Lenders ............................................................................................................ 128  10.03 Certain Waivers .............................................................................................................. 128  10.04 Obligations Independent ................................................................................................. 129  10.05 Subrogation ..................................................................................................................... 129  10.06 Termination; Reinstatement ............................................................................................ 129  10.07 Stay of Acceleration ........................................................................................................ 129  10.08 Condition of Borrower .................................................................................................... 129  10.09 Appointment of Borrower ............................................................................................... 130  10.10 Right of Contribution ...................................................................................................... 130  10.11 Keepwell ......................................................................................................................... 130  ARTICLE XI MISCELLANEOUS .......................................................................................................... 130  11.01 Amendments, Etc. ........................................................................................................... 130  11.02 Notices; Effectiveness; Electronic Communications. ..................................................... 133  11.03 No Waiver; Cumulative Remedies; Enforcement. .......................................................... 135  11.04 Expenses; Indemnity; Damage Waiver. .......................................................................... 136  11.05 Payments Set Aside ........................................................................................................ 137  11.06 Successors and Assigns. ................................................................................................. 138  11.07 Treatment of Certain Information; Confidentiality. ........................................................ 142  11.08 Right of Setoff.   ............................................................................................................. 144  11.09 Interest Rate Limitation .................................................................................................. 144  11.10 Integration; Effectiveness ............................................................................................... 144  





 






iv  11.11 Survival of Representations and Warranties ................................................................... 145  11.12 Severability ..................................................................................................................... 145  11.13 Replacement of Lenders. ................................................................................................ 145  11.14 Governing Law; Jurisdiction; Etc. .................................................................................. 146  11.15 Waiver of Jury Trial ........................................................................................................ 147  11.16 Subordination .................................................................................................................. 147  11.17 Release of Collateral and Guarantees ............................................................................. 148  11.18 No Advisory or Fiduciary Responsibility ....................................................................... 148  11.19 Electronic Execution; Electronic Records; Counterparts. ............................................... 149  11.20 USA Patriot Act Notice .................................................................................................. 150  11.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ............... 150  11.22 Acknowledgement Regarding Any Supported QFCs ..................................................... 150  11.23 Judgment Currency ......................................................................................................... 151  11.24 Transitional Arrangements.............................................................................................. 151       





 






v  BORROWER PREPARED SCHEDULES  Schedule 1.01(d) Material Owned Properties  Schedule 5.05 Financial Condition; No Material Adverse Changes  Schedule 5.06 Litigation and Environmental Matters  Schedule 5.07 Compliance with Laws and Agreements  Schedule 5.08 Properties; Intellectual Property  Schedule 5.09 Insurance  Schedule 5.10 Taxes  Schedule 5.11 Pension Plans  Schedule 5.15 Subsidiaries  Schedule 5.16 Compliance with Laws, Agreements  Schedule 5.20 Material Indebtedness, Liens and Agreements  Schedule 5.23 Bank Accounts  Schedule 5.28 Labor and Employment Matters  Schedule 7.01 Existing Indebtedness  Schedule 7.05 Existing Investments  Schedule 7.07 Transactions with Affiliates  Schedule 7.08 Restrictive Agreements  ADMINISTRATIVE AGENT PREPARED SCHEDULES  Schedule 1.01(a)  Certain Addresses for Notices  Schedule 1.01(b)  Initial Commitments and Applicable Percentages  Schedule 1.01(c)  Existing Letters of Credit  Schedule 2.01 Swingline Commitments  Schedule 2.03 Letter of Credit Commitments  EXHIBITS  Exhibit A Form of Loan Notice  Exhibit B Form of Swingline Loan Notice  Exhibit C Form of Revolving Note  Exhibit D-1 Form of Term Note for Term A Loans  Exhibit D-2 Form of Term Note for Delayed Draw Term A Loans  Exhibit E Form of Security Agreement  Exhibit F Form of Joinder Agreement  Exhibit G Form of Compliance Certificate  Exhibit H Form of Secured Party Designation Notice  Exhibit I Form of Solvency Certificate  Exhibit J Form of Officer’s Certificate  Exhibit K Form of Administrative Questionnaire  Exhibit L Form of Assignment and Assumption  Exhibit M Forms of U.S. Tax Compliance Certificates  Exhibit N Form of Funding Indemnity Letter  Exhibit O Form of Landlord Waiver  Exhibit P Form of Financial Condition Certificate  Exhibit Q Form of Authorization to Share Insurance Information  Exhibit R Form of Notice of Loan Prepayment  





 






  1  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  This FIFTH AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of  March 4, 2022, among Ameresco, Inc., a Delaware corporation (the “Borrower”), the Guarantors (defined  herein), the Lenders (defined herein), and BANK OF AMERICA, N.A., as Administrative Agent,  Swingline Lender and L/C Issuer.  PRELIMINARY STATEMENTS:  WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the  Swingline Lender and the L/C Issuer make loans and other financial accommodations to the Loan Parties  in an aggregate amount of up to $495,000,000.  WHEREAS, the Lenders, the Swingline Lender and the L/C Issuer have agreed to make such loans  and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth  herein.  WHEREAS, this Agreement amends and restates that certain Fourth Amended and Restated Credit  and Security Agreement dated as of June 28, 2019, as amended (the “Prior Credit Agreement”), by and  among the Borrower, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as  Agent, which Prior Credit Agreement amended and restated that certain Third Amended and Restated  Credit and Security Agreement dated as of June 30, 2015, as amended, by and among the Borrower, the  guarantors party thereto, the lenders party thereto, and Bank of America, N.A., as Agent, which in turn  amended and restated that certain Second Amended and Restated Credit and Security Agreement dated as  of June 30, 2011, as amended, by and among the Borrower, the guarantors party thereto, the lenders party  thereto and Bank of America, N.A., as Agent, which in turn amended and restated that certain Amended  and Restated Credit and Security Agreement dated as of June 10, 2008, as amended, by and among the  Borrower, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as Agent (as  successor by merger to Fleet National Bank), which in turn amended and restated that certain Credit and  Security Agreement dated as of December 29, 2004, as amended, by and among the Borrower, the  guarantors party thereto, the lenders party thereto and Fleet National Bank, as Agent.  NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,  the parties hereto covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:  “Acquisition” means the acquisition, whether through a single transaction or a series of related  transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person  (including the purchase of an option, warrant or convertible or similar type security to acquire such a  controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such  equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of  securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all  or substantially all of the assets of such Person or of a division, line of business or other business unit of  such Person.  





 






  2  “Additional Mortgage” has the meaning assigned to such term in Section 6.13(a).  “Additional Mortgaged Property” means any Material Leasehold Property or Material Owned  Property, with respect to which the Administrative Agent determines to acquire a Mortgage on or following  the Closing Date.  “Additional Secured Obligations” means (a) all obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements and (b) all costs and expenses incurred in  connection with enforcement and collection of the foregoing, including the fees, charges and disbursements  of counsel, 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 and including interest, expenses and  fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any  proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless  of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional  Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such  Guarantor.  “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form  of Exhibit K or any other form approved by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified; provided, that for purposes of this Agreement, no Loan Party shall be deemed to be an  Affiliate of any other Loan Party.  “Agreed Currency” means Dollars or any Alternative Currency, as applicable.  “Aggregate Commitments” means the Commitments of all the Lenders.  “Agreement” means this Credit Agreement, including all schedules, exhibits and annexes hereto.  “Agreement Currency” has the meaning specified in Section 11.23.   “Alternative Currency” means each of the following currencies:  Canadian Dollar, Euro and  Sterling, together with each other currency (other than Dollars) that is approved in accordance with Section  1.09; provided that for each Alternative Currency, such requested currency is an Eligible Currency.  “Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:  (a) denominated in Sterling, the rate per annum equal to SONIA determined pursuant to the  definition thereof plus the SONIA Adjustment; and  





 






  3  (b) denominated in any other Alternative Currency (to the extent such Loans denominated in  such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such  Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and  the relevant Lenders pursuant to Section 1.09(a) plus the adjustment (if any) determined by the  Administrative Agent and the relevant Lenders pursuant to Section 1.09(c);  provided, that, if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed  zero for purposes of this Agreement.  Any change in an Alternative Currency Daily Rate shall be effective  from and including the date of such change without further notice.  “Alternative Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the  Alternative Currency Daily Rate. All Alternative Currency Daily Rate Loans must be denominated in an  Alternative Currency.  “Alternative Currency Equivalent” means, at any time, with respect to any denominated in Dollars,  the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative  Agent or the L/C Issuer, as the case may be, by reference to Bloomberg (or such other publicly available  service for displaying exchange rates), to be the exchange rate for the purchase of such Alternative Currency  with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which  the foreign exchange computation is made; provided, however, that if no such rate is available, the  “Alternative Currency Equivalent” shall be determined by the Administrative Agent or the L/C Issuer, as  the case may be, using any reasonable method of determination its deems appropriate in its sole discretion  (and such determination shall be conclusive absent manifest error).  “Alternative Currency Loans” means an Alternative Currency Daily Rate Loan or an Alternative  Currency Term Rate Loan, as applicable.  “Alternative Currency Sublimit” means an amount equal to the lesser of the total Revolving  Commitments and $20,000,000.  The Alternative Currency Sublimit is part of, and not in addition to, the  Revolving Commitments.  “Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit  Extension:   (a) denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate  (“EURIBOR”), 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) on the day that is two TARGET Days preceding the first day of such Interest Period  with a term equivalent to such Interest Period;  (b) denominated in Canadian dollars, the rate per annum equal to the Canadian Dollar  Offered Rate (“CDOR”), 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) (in such case, the “CDOR Rate”) on the Rate  Determination Date with a term equivalent to such Interest Period;  (c) denominated in any other Alternative Currency (to the extent such Loans  denominated in such currency will bear interest at a term rate), the term rate per annum as  designated with respect to such Alternative Currency at the time such Alternative Currency is  approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.09(a) plus  





 






  4  the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant  to Section 1.09(c),  provided that if the Alternative Currency Term Rate shall be less than zero percent (0%), such rate shall be  deemed to be zero percent (0%) for purposes of this Agreement.  “Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the  definition of “Alternative Currency Term Rate.”  All Alternative Currency Term Rate Loans must be  denominated in an Alternative Currency.  “Ameresco Canada” means Ameresco Canada, Inc., a company organized under the laws of  Ontario, Canada.  “Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any  Governmental Authority having jurisdiction over the Administrative Agent or the SOFR Administrator and  (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such  Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or  such administrator.  “Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to  which such a Person is subject.  “Applicable Percentage” means (a) in respect of the Term A Facility, with respect to any Term  Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A Facility  represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at such time and  (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, (b) in  respect of the Delayed Draw Term A Facility, with respect to any Term Lender at any time, the percentage  (carried out to the ninth decimal place) of the Delayed Draw Term A Facility represented by (i) on or prior  to the Closing Date, such Term Lender’s Term Commitment under the Delayed Draw Term A Facility and  (ii) thereafter, such Term Lender’s remaining Term Commitment under the Delayed Draw Term A Facility  at such time plus the outstanding principal amount of such Term Lender’s Delayed Draw Term A Loans at  such time and (c) in respect of the Revolving Facility, with respect to any Revolving Lender at any time,  the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such  Revolving Lender’s Revolving Commitment at such time, in each case, subject to adjustment as provided  in Section 2.15. If the Commitment of all of the Revolving Lenders to make Revolving Loans, the  Commitment of all the Term Lenders to make Delayed Draw Term A Loans, and the obligation of the L/C  Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving  Commitments and the Term Commitments of the Term Lenders to make Delayed Draw Term A Loans  have expired, then the Applicable Percentage of each Lender in respect of such Lender’s Facility shall be  determined based on the Applicable Percentage of such Lender in respect of such Lender’s Facility most  recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting  Lender at the time of determination. The Applicable Percentage of each Lender in respect of each Facility  is set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption  pursuant to which such Lender becomes a party hereto, as applicable.  “Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable  Level then in effect (based on the Core Leverage Ratio), it being understood that the Applicable Rate for  (a) Revolving Loans that are Base Rate Loans and Swingline Loans shall be the percentage set forth under  the column “Revolving Loans” and “Base Rate”, (b) Revolving Loans that are Term SOFR Loans or  Alternative Currency Loans shall be the percentage set forth under the column “Revolving Loans” and  “Term SOFR & Letter of Credit Fee”, (c) that portion of the Term Loan comprised of Base Rate Loans  





 






  5  shall be the percentage set forth under the column “Term Loan” and “Base Rate”, (d) that portion of the  Term Loan comprised of Term SOFR Loans shall be the percentage set forth under the column “Term  Loan” and “Term SOFR & Letter of Credit Fee”, (e) the Letter of Credit Fee shall be the percentage set  forth under the column “Revolving Loans” and “Term SOFR & Letter of Credit Fee”, and (f) the  Commitment Fee applicable to the Revolving Facility and the Delayed Draw Term A Facility shall be the  percentage set forth under the column “Commitment Fee”:  Applicable Rate  Level Core Leverage Ratio  Term SOFR & Letter of  Credit Fee Base Rate Commitment  Fee Revolving  Loans Term Loan Revolving  Loans Term Loan  1 Greater than 3.75 2.75% 2.75% 1.75% 1.75% 0.400%  2  Greater than 3.25 but  less than or equal to  3.75  2.50% 2.50% 1.50% 1.50% 0.375%  3  Greater than 2.50 but  less than or equal to  3.25  2.25% 2.25% 1.25% 1.25% 0.350%  4  Greater than 1.75 but  less than or equal to  2.50  2.00% 2.00% 1.00% 1.00% 0.300%  5  Greater than 1.00 but  less than or equal to  1.75   1.75% 1.75% 0.75% 0.75% 0.250%  6 Less than or equal to  1.00  1.50% 1.50% 0.50% 0.50% 0.250%           Any increase or decrease in the Applicable Rate resulting from a change in the Core Leverage Ratio  shall become effective as of the first Business Day immediately following the date a Compliance Certificate  is delivered pursuant to Section 6.01(c); provided, however, that if a Compliance Certificate is not delivered  when due in accordance with Section 6.01(c), then, upon the request of the Required Lenders, Pricing Level  1 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate  was required to have been delivered and in each case shall remain in effect until the first Business Day  following the date on which such Compliance Certificate is delivered. In addition, at all times while the  Default Rate is in effect, the highest rate set forth in each column of the above table shall apply.  Notwithstanding anything to the contrary contained in this definition, (i) the determination of the  Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (ii) the initial  Applicable Rate shall be set at Pricing Level 4 until the first Business Day immediately following the date  a Compliance Certificate is delivered to the Administrative Agent pursuant to Section 6.01(c) for the fiscal  quarter ending March 31, 2022. Any adjustment in the Applicable Rate shall be applicable to all Credit  Extensions then existing or subsequently made or issued.  “Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such  Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.  “Applicable Time” means, with respect to any borrowings and payments in any Alternative  Currency, the local time in the place of settlement for such Alternative Currency as may be determined by  





 






  6  the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the  relevant date in accordance with normal banking procedures in the place of payment.  “Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a  Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect  to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant  to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline  Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another.  “Arranger” means BofA Securities, Inc., in its capacity as sole lead arranger and sole bookrunner.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and  accepted by the Administrative Agent, in substantially the form of Exhibit L or any other form (including  an electronic documentation form generated by use of an electronic platform) approved by the  Administrative Agent.  “Audited Financial Statements” has the meaning assigned to such term in Section 5.05(a)(i).  “Authorization to Share Insurance Information” means the authorization substantially in the form  of Exhibit Q (or such other form as required by each of the Loan Party’s insurance companies).  “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).  “Availability Period” means (a) in respect of the Revolving Facility, the period from and including  the Closing Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of  termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the  Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuer  to make L/C Credit Extensions pursuant to Section 8.02 and (b) in respect of the Delayed Draw Term A  Facility, the period from and including the Closing Date to the earliest of (i) the date that falls twelve (12)  months after the Closing Date, (ii) the date of termination of the Term Commitments for the Delayed Draw  Term A Facility pursuant to Section 2.06, and (iii) the date of termination of the Term Commitments of the  respective Term Lenders to make Delayed Draw Term A Loans pursuant to Section 8.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union,  the implementing law, rule, regulation or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  





 






  7  “Bank of America” means Bank of America, N.A. and its successors.  “Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of  (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced  from time to time by Bank of America as its “prime rate,” and (c) the Term SOFR plus 1.00%, subject to  the interest rate floors set forth therein; provided that if the Base Rate shall be less than zero, such rate shall  be deemed zero for purposes of this Agreement.  The “prime rate” is a rate set by Bank of America based  upon various factors including Bank of America’s costs and desired return, general economic conditions  and other factors, and is used as a reference point for pricing some loans, which may be priced at, above,  or below such announced rate. Any change in such prime rate announced by Bank of America shall take  effect at the opening of business on the day specified in the public announcement of such change. If the  Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate  shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c)  above.  “Base Rate Loan” means a Revolving Loan or a Term Loan that bears interest based on the Base  Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA  or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted  in accordance with, 12 U.S.C. 1841(k)) of such party.  “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 6.01.  “Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the  context may require.  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative  Agent’s Office is located, and:  (a) if such day relates to any interest rate settings as to an Alternative Currency Loan  denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of  any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to  this Agreement in respect of any such Alternative Currency Loan, means a Business Day that is  also a TARGET Day;  (b) if such day relates to any interest rate settings as to an Alternative Currency Loan  denominated in Sterling, means a day other than a day banks are closed for general business in  





 






  8  London because such day is a Saturday, Sunday or a legal holiday under the laws of the United  Kingdom; and  (c) if such day relates to any fundings, disbursements, settlements and payments in a  currency other than Euro or Sterling in respect of an Alternative Currency Loan denominated in a  currency other than Euro or Sterling, or any other dealings in any currency other than Euro or  Sterling to be carried out pursuant to this Agreement in respect of any such Alternative Currency  Loan (other than any interest rate settings), means any such day on which banks are open for foreign  exchange business in the principal financial center of the country of such currency.  “Canadian Dollar” and “CAD” means the lawful currency of Canada.  “Capital Expenditures” means, for any period, the sum for the Core Ameresco Companies  (determined on a consolidated basis without duplication in accordance with GAAP) of the aggregate  amount of cash payments in respect of expenditures made during such period to acquire or construct fixed  assets, plant and equipment (including renewals, improvements and replacements, but excluding repairs)  computed in accordance with GAAP; provided that such term shall not include any such expenditures in  connection with any replacement or repair of Property affected by a Casualty Event.  “Cash Collateralize” means to  pledge and deposit with or deliver to the Administrative Agent,  for the benefit of one or more of the L/C Issuer or Swingline Lender (as applicable) or the Lenders, as  Collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the  Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as the  context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into  on terms, from issuers and in amounts satisfactory to the Administrative Agent and the applicable L/C  Issuer, and/or (c) if the Administrative Agent and the applicable L/C Issuer or Swingline Lender shall  agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to  documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or  the 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 Flow” means for the period of four consecutive quarters most recently ended, (i) EBITDA  of the Core Ameresco Companies for such period minus (ii) the sum of the following for the Core Ameresco  Companies of (1) Capital Expenditures made during such fiscal period, (2) the aggregate amount paid in  cash in respect of income, franchise, real estate and other like taxes during such fiscal period, and (3)  dividends, withdrawals and other distributions paid in cash by the Core Ameresco Companies during such  fiscal period.  “Cash Management Agreement” means any agreement that is not prohibited by the terms hereof  to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated  clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox,  account reconciliation and reporting and trade finance services and other cash management services.  “Cash Management Bank” means any Person in its capacity as a party to a Cash Management  Agreement that, at the time it enters into a Cash Management Agreement with a Loan Party or any  Subsidiary, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management  Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender);  provided, however, that for any of the foregoing to be included as a “Secured Cash Management  Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management  





 






  9  Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered  a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.   “Casualty Event” means, with respect to any Property of any Person, any loss of or damage to, or  any condemnation or other taking of, such Property for which such Person or any of its Subsidiaries receives  insurance proceeds, or proceeds of a condemnation award or other compensation.  “Change in Law” means the occurrence, after the Closing Date, 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 or in the  implementation thereof and (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, shall in  each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or  implemented.  “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  Securities 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) other than one or more of the Specified Shareholders becomes the  “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities 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, whether such right is exercisable immediately or  only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% 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 12 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.  “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are Revolving Loans or Term Loans and, when used in reference to any  Commitment, refers to whether such Commitment is a Revolving Commitment or Term Commitment.  “Closing Date” means the date hereof.  “CME” means CME Group Benchmark Administration Limited.  





 






  10  “Code” means the Internal Revenue Code of 1986.  “Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the  other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in  favor of the Administrative Agent for the benefit of the Secured Parties.  “Collateral Account” has the meaning set forth in Section 2.03(q).  “Collateral Documents” means, collectively, the Security Agreement, each Joinder Agreement,  each of the collateral assignments, security agreements, pledge agreements, account control agreements or  other similar agreements delivered to the Administrative Agent pursuant to Section 6.13, and each of the  other agreements, instruments or documents that creates or purports to create a Lien in favor of the  Administrative Agent for the benefit of the Secured Parties.  “Commitment” means a Term Commitment or a Revolving Commitment, as the context may  require.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as  amended from time to time, and any successor statute.  “Communication” means this Agreement, any Loan Document and any document, any  amendment, approval, consent, information, notice, certificate, request, statement, disclosure or  authorization related to any Loan Document.  “Competitor” means each of BlueWave Solar, Borrego Solar, Citizens Energy, Clean Energy  Collective, Comfort Systems USA and Veolia, Constellation NewEnergy (and Exelon Company), EMCOR  Group, Energy Systems Group, Honeywell, Johnson Controls, Nexamp, NORESCO, Schneider Electric,  Siemens Building Technologies, Solect Energy, SunPower Corp., Syncarpha Capital, Trane and Veolia and  each of their Subsidiaries.  “Compliance Certificate” means a certificate signed by a Responsible Officer, in substantially the  form of Exhibit G annexed hereto, (i) certifying as to whether a Default has occurred and, if a Default has  occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto,  (ii) certifying compliance with Section 7.05(a)(vi), (iii) setting forth reasonably detailed calculations  demonstrating compliance with Section 7.10, (iv) attaching a current listing of all Subsidiaries in the form  of Schedule 5.15, showing any changes since the most recently delivered Schedule 5.15, (v) setting forth  in reasonable detail all adjustments to the consolidated financial statements of the Borrower and its  Subsidiaries necessary to reflect the exclusion of all Subsidiaries of the Borrower other than the Core  Ameresco Companies from the financial covenant calculations set forth therein, and (vi) stating whether  any change in GAAP or in the application thereof has occurred since the date of the audited financial  statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such  change on the financial statements accompanying such certificate.  “Conforming Changes” means, with respect to the use, administration of or any conventions  associated with Term SOFR or any proposed Successor Rate for Term SOFR, as applicable, any conforming  changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and  frequency of determining rates and making payments of interest and other technical, administrative or  operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S.  Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or  continuation notices and length of lookback periods) as may be appropriate, in the discretion of the  Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit  





 






  11  the administration thereof by the Administrative Agent in a manner substantially consistent with market  practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is  not administratively feasible or that no market practice for the administration of such rate exists, in such  other manner of administration as the Administrative Agent determines is reasonably necessary in  connection with the administration of this Agreement and any other Loan Document).  “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 Interest Charges” means, for any period, for the Core Ameresco Companies on a  consolidated basis, the sum of (i) all interest, premium payments, debt discount, fees, charges and related  expenses of the Core Ameresco Companies 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, and (ii) the portion of rent expense of the Core Ameresco Companies  with respect to such period under financing leases that is treated as interest in accordance with GAAP.  “Consolidated Net Income” means, at any date of determination, the net income (or loss) of the  Core Ameresco Companies on a consolidated basis for the most recently completed applicable period.  “Construction Completion and Cost Overrun Guaranty” means, in connection with any Non-Core  Project, a guaranty of (i) the lien-free completion and operation of such Non-Core Project on or prior to the  date set forth in such guaranty and (ii) the payment of all construction costs and expenses related to such  Non-Core Project (x) in excess of the proposed budget for such Non-Core Project or (y) resulting from the  level of performance or any delay in the completion of such Non-Core Project.   “Contractor Event of Default” has the meaning specified in the SoCal Contract.  “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it  or any of its property is bound.  “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. A Person who owns or  holds capital stock, beneficial interests or other securities representing ten percent (10%) or more of the  Total Voting Power of another Person shall be deemed, for purposes of this Agreement, to “control” such  other Person.  “Control Agreement” means, with respect to any deposit or securities account of any Loan Party,  a control agreement, in form and substance reasonably satisfactory to the Administrative Agent, executed  and delivered by such Loan Party, the financial institution at which such account is maintained and the  Administrative Agent, as any such agreement may be amended, supplemented or otherwise modified from  time to time.  “Copyrights” means all copyrights, whether statutory or common law, owned by or assigned to the  Loan Parties, and all exclusive and nonexclusive licenses to the Loan Parties from third parties or rights to  use copyrights owned by such third parties, including, without limitation, the registrations, applications and  licenses listed on Schedule 5.08 hereto, along with any and all (i) renewals and extensions thereof, (ii)  income, royalties, damages, claims and payments now and hereafter due and/or payable with respect  thereto, including, without limitation, damages and payments for past, present or future infringements  





 






  12  thereof, (iii) rights to sue for past, present and future infringements thereof, and (iv) foreign copyrights and  any other rights corresponding thereto throughout the world.  “Core Ameresco Companies” means the Loan Parties, the Core Canadian Subsidiaries, the Dutch  Subsidiary and all of the Subsidiaries of the Dutch Subsidiary, in each case other than Non-Core Companies  that are not Guarantors, as shown on Schedule 5.15, as the same may be revised from time to time in  accordance with this Agreement.  “Core Canadian Subsidiaries” means each of Ameresco Canada, Ameresco Quebec, Inc. and any  other subsidiary of the Borrower organized under the laws of Canada or any jurisdiction within Canada,  other than Non-Core Companies.  “Core Foreign Subsidiary” means a Foreign Subsidiary that is also a Core Ameresco Company.  “Core Leverage Ratio” means the ratio of (i) Total Funded Debt of the Core Ameresco Companies  to (ii) EBITDA of the Core Ameresco Companies for the period of four consecutive fiscal quarters most  recently ended.  “Covered Entity” means any of the following:  (a) a “covered entity” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.  “Credit Party” has the meaning specified in Section 11.19(a).  “Daily Simple SOFR” with respect to any applicable determination date means the SOFR  published on such date on the Federal Reserve Bank of New York’s website (or any successor source).  “Debt Service” means, for the period of four consecutive quarters most recently ended, the sum,  for the Core Ameresco Companies (determined on a consolidated basis in accordance with GAAP) of (i)  all regularly scheduled principal payments, as such amounts may be adjusted from time to time by reason  of any prepayments, of Indebtedness (including the principal component of any payments in respect of  Financing Lease Obligations), but excluding (A) any prepayments pursuant to Section 2.05 made during  such period, (B) any principal payments in respect of the Revolving Loans made during such period, and  (C) for purposes of the calculation in Section 7.10(b) the payment due on the Maturity Date of the Delayed  Draw Term A Loan, plus (ii) all Consolidated Interest Charges paid in cash (excluding amortization of  deferred financing costs and interest by its terms “paid-in-kind”) for such period, plus (iii) any “Federal  ESPC Liabilities” (as set forth on the Borrower’s most recent consolidated balance sheet) related to an  Energy Savings Performance Contract for an Energy Conservation Project, where such Core Ameresco  Company is in default beyond any applicable grace or notice periods.  “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the giving  of any notice, the passage of time, or both, would be an Event of Default.  





 






  13  “Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per  annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to  any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus  the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to  the fullest extent permitted by Applicable Law.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means, subject to Section 2.15(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, the L/C Issuer, the 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, the L/C Issuer or the 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, 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, and the effective date of such  status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a  Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative  Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to  the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such  determination.  “Delayed Draw Term A Facility” means, as to each Term Lender, its obligation to make Delayed  Draw Term A Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any  one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule  1.01(b) under the caption “Delayed Draw Term A Commitment” or opposite such caption in the  Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable,  as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate of  





 






  14  the Term Commitments under Delayed Draw Term A Facility of all of the Term Lenders on the Closing  Date shall be $220,000,000.  “Delayed Draw Term A Loans” has the meaning set forth in Section 2.01(a).  “Designated Jurisdiction” means any country or territory to the extent that such country or territory  is the subject of any Sanction.  “Disclosed Matters” means the actions, suits and proceedings and the environmental matters  disclosed in Schedule 5.06.  “Disposition” means any sale, assignment, transfer or other disposition of any property, whether  now owned or hereafter acquired (in one transaction or in a series of transactions and whether effected  pursuant to a Division or otherwise) by any Loan Party to any Person, other than to another Loan Party, and  excluding (a) the granting of Liens to the Administrative Agent and Lenders and other Liens permitted  hereunder, (b) any sale, assignment, transfer or other disposition by any Loan Party of the assets of a Non- Core Project or the Equity Interests of any Non-Core Company, and (c) any sale, assignment, transfer or  other disposition of (i) any property sold or disposed of in the ordinary course of business and on ordinary  business terms, (ii) any property no longer used or useful in the business of the Loan Parties, and (iii) any  Collateral pursuant to an exercise of remedies by the Administrative Agent hereunder or under any other  Loan Document.  “Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing  Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement),  which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may  not survive.   “Dollar” and “$” mean lawful money of the United States.  “Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such  amount is expressed in Dollars, such amount, (b) if such amount is expressed in an Alternative Currency,  the equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of  Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the  Administrative Agent or the L/C Issuer, as applicable) by the applicable Bloomberg source (or such other  publicly available source for displaying exchange rates) on date that is two (2) Business Days immediately  preceding the date of determination (or if such service ceases to be available or ceases to provide such rate  of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent or the  L/C Issuer, as applicable using any method of determination it deems appropriate in its sole discretion) and  (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as  determined by the Administrative Agent or the L/C Issuer, as applicable, using any method of determination  it deems appropriate in its sole discretion. Any determination by the Administrative Agent or the L/C Issuer  pursuant to clauses (b) or (c) above shall be conclusive absent manifest error.  “Dutch Subsidiary” means Ameresco International Holdings B.V., a private limited liability  company organized under the laws of the Netherlands.  “EBITDA” means, for any period, for the Core Ameresco Companies on a consolidated basis, an  amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in  calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the  provision for federal, state, local and foreign income taxes payable for such period, (iii) depreciation and  amortization expense for such period, (iv) Non-Cash Charges for such period, (v) extraordinary or non- 





 






  15  recurring expenses for such period, in an amount not to exceed $5,000,000 after the Closing Date (it being  understood that any payment required to be made by any Core Ameresco Company in respect of any Non- Core Project Guaranty Liability shall reduce Consolidated Net Income of the Core Ameresco Companies  and shall not be added back to EBITDA), and (vi) the aggregate amount received in cash by the Core  Ameresco Companies during such period in respect of regularly scheduled dividends or distributions from  the Non-Core Companies, calculated and paid in accordance with the organizational documents of such  Non-Core Companies; (provided, that the amount added back pursuant to this clause (vi) shall not include  any amounts received by the Core Ameresco Companies, in connection with any sale, transfer or other  disposition of assets or Equity Interests of any Non-Core Company); minus (b) the following to the extent  included in calculating such Consolidated Net Income (i) extraordinary or non-recurring gains during such  period (including, without limitation, non-cash gains attributable to the mark to market movement in the  valuation of hedging obligations (to the extent the cash impact resulting from such gain has not been  realized) or other derivative instruments, and foreign currency translations), and (ii) proceeds received  during such period in respect of Casualty Events and Dispositions. For purposes of calculating EBITDA  for any period during which a Permitted Acquisition is consummated, EBITDA shall be adjusted in a  manner proposed by the Borrower and reasonably satisfactory to the Required Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them,  respectively, by 15 USC §7006, as it may be amended from time to time.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).   “Eligible Currency” means any lawful currency other than Dollars that is readily available, freely  transferable and convertible into Dollars in the international interbank market available to the Lenders in  such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the  Lenders of any currency as an Alternative Currency, any change in currency controls or exchange  regulations or any change in the national or international financial, political or economic conditions are  imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Required  Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the  case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer  being readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent is no longer  readily calculable with respect to such currency, (c) providing such currency is impracticable for the  Lenders or (d) no longer a currency in which the Required Lenders are willing to make such Credit  Extensions (each of (a), (b), (c), and (d) a “Disqualifying Event”), then the Administrative Agent shall  promptly notify the Lenders and the Borrower, and such country’s currency shall no longer be an  Alternative Currency until such time as all such Disqualifying Events no longer exist. Within, five (5)  





 






  16  Business Days after receipt of such notice from the Administrative Agent, the Borrower shall repay all  Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar  Equivalent of Loans in Dollars, subject to the other terms contained herein.  “Energy Conservation Financing Collateral” means all rights of any Loan Party or Core Canadian  Subsidiary in and to task orders or contracts and any related equipment which are subject to a security  interest in favor of the Energy Conservation Project Financing Agent in connection with any Energy  Conservation Project Financing.  “Energy Conservation Projects” means (a) any energy conservation project conducted by any  Loan Party or Core Canadian Subsidiary pursuant to an Energy Savings Performance Contract between  such Loan Party or Core Canadian Subsidiary, any governmental entity and/or an agency thereof and (b)  any energy conservation project conducted by a Loan Party or Core Canadian Subsidiary for a non- governmental entity on terms substantially similar to the projects described in clause (a) of this definition.  “Energy Conservation Project Financing” means the loan, lease or bond financing arrangements  or master purchase agreements and assignment schedules or similar financing arrangements entered into by  any Loan Party or Core Canadian Subsidiary from time to time with an Energy Conservation Project  Financing Agent to finance the construction and completion of the Energy Conservation Projects.  “Energy Conservation Project Financing Agent” means the financial institution acting in the  capacity of agent or trustee for itself and/or other lenders or bondholders in connection with any Energy  Conservation Project Financing.  “Energy Savings Performance Contract” means a contract providing for the construction or  installation of energy savings facilities or equipment, energy generating, energy storage, resiliency or other  infrastructure to be paid for in whole or in part based upon energy savings expected to be achieved from  such facilities or equipment.  “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil,  surface and subsurface strata, and natural resources such as wetland, flora and fauna.  “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws (including  common law), regulations, standards, ordinances, rules, judgments, interpretations, orders, decrees,  permits, agreements or governmental restrictions relating to pollution or the protection of the Environment  or human health (to the extent related to exposure to hazardous materials), including those relating to the  manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous  Materials, air emissions and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract,  tort, implied or express warranty, strict liability, criminal or civil statute or common law of any Loan Party,  directly or indirectly relating to (a) 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 or (e) any contract, agreement  or other consensual arrangement pursuant to which liability is assumed or imposed 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 Equity Rights with respect to such Person, and all of the  other ownership or profit interests in such Person (including partnership, member or trust interests therein),  





 






  17  whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are  outstanding on any date of determination.  “Equity Rights” means, with respect to any Person, any subscriptions, options, warrants,  commitments, preemptive rights or agreements of any kind (including any stockholders’ or voting trust  agreements) for the issuance or sale of, or securities convertible into, any additional shares of capital stock  of any class, or partnership or other ownership interests of any type in, such Person.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules  and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with the Borrower within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m)  and (o) of the Code for purposes of provisions relating to Section 412 of the Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal  of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or  a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a  complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the  treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the  institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which  constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to  administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a  plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or  Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other  than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any  ERISA Affiliate or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements  under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the  Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.  “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.  “Euro” and “€” mean the single currency of the Participating Member States.  “Event of Default” has the meaning specified in Section 8.01.  “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 by such Guarantor of a  Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the  application or official interpretation 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 10.11 and any other “keepwell”, support or other agreement for the benefit of such  Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the  time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect  to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one  Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable  





 






  18  to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first  sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the case  of any Lender, its 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 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that,  pursuant to Sections 3.01(b) or (d), 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 3.01(f)  and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.  “Existing Debt” means (1) Indebtedness of the Loan Parties existing as of the Closing Date which  is being repaid in full with the proceeds of the Loans made by the Lenders at the Closing Date and (2)  Indebtedness of the Loan Parties existing as of the Closing Date which is permitted to remain outstanding  after the Closing Date under Section 7.01 and is listed on Schedule 7.01 hereto.  “Existing Letters of Credit” means those certain letters of credit set forth on Schedule 1.01(c).  “Facility” means the Term A Facility, the Delayed Draw Term A Facility or the Revolving Facility,  as the context may require.  “Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than  contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than  Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative  Agent and the L/C Issuer shall have been made).  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards  Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any  amended or successor version that is substantively comparable and not materially more onerous to comply  with) and any current or future regulations or official interpretations thereof and any agreements entered  into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or  successor version described above)  and any intergovernmental agreement (and related fiscal or regulatory  legislation, or related official rules or practices) implementing the foregoing.  “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve  Bank of New York based on such day’s federal funds transactions by depository institutions (as determined  in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to  time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the  federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.   





 






  19  “Fee Letter” means the letter agreement, dated December 23, 2021, among the Borrower, the  Administrative Agent and the Arranger.  “Financing Lease Obligations” of any Person means the obligations of such Person to pay rent or  other amounts under any lease of (or other arrangement conveying the right to use) real or personal property,  or a combination thereof, which obligations are required to be classified and accounted for as financing  leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the  capitalized amount thereof determined in accordance with GAAP.   “Foreign Lender” means, 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. For purposes of this definition, the United  States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.  “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other  than the United States, a State thereof or the District of Columbia.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender,  (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C  Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has  been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof,  and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline  Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been  reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funding Indemnity Letter” means a funding indemnity letter, substantially in the form of Exhibit  N.  “GAAP” means generally accepted accounting principles in the United States set forth from time  to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board (or agencies with similar functions of comparable stature and authority within the accounting  profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable  to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.  “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, without  limitation, any supra-national bodies such as the European Union or the European Central Bank).  “Guarantee” means, as to any Person, means a guarantee, an endorsement, a contingent agreement  to purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become  contingently liable under or with respect to, the Indebtedness, other obligations, net worth, working capital  or earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the Equity  Interests of any Person, or an agreement to purchase, sell or lease (as lessee or lessor) property, products,  





 






  20  materials, supplies or services primarily for the purpose of enabling a debtor to make payment of such  debtor’s obligations or an agreement to assure a creditor against loss, and including, without limitation,  causing a bank or other financial institution to issue a letter of credit or other similar instrument for the  benefit of another Person, but excluding endorsements for collection or deposit in the ordinary course of  business.  The terms “Guarantee” and “Guaranteed” used as a verb shall have a correlative meaning.  The  amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of  the primary obligations in respect of which such Guarantee is made or, if not stated or determinable, the  maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform  thereunder).  “Guaranteed Obligations” has the meaning set forth in Section 10.01.  “Guarantors” means, collectively, (a) the Subsidiaries of the Borrower as are or may from time to  time become parties to this Agreement pursuant to Section 6.10, and (b) with respect to Additional Secured  Obligations owing by any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified  Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.  “Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor  of the Secured Parties, together with each other guaranty delivered pursuant to Section 6.10.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or  compounds of any nature in any form regulated pursuant to any Environmental Law.  “Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, at the time it  enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender,  in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s  Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is  no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through  the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided  further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of  determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative  Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice  to the Administrative Agent prior to such date of determination.  “Hedging Agreement” means any interest rate protection agreement, foreign currency exchange  agreement, commodity price protection agreement or other interest or currency exchange rate or commodity  price hedging arrangement.  “Inactive Subsidiaries” means each of the Subsidiaries of the Borrower designated by the Borrower  as an inactive subsidiary on Schedule 5.15 attached hereto as of the Closing Date and from time to time  after the Closing Date.  “Indebtedness” means, for any Person, without duplication, (a) obligations created, issued or  incurred by such Person for borrowed money (whether by loan, advance, the issuance and sale of debt  securities or the sale of Property to another Person subject to an understanding or agreement, contingent or  otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred  purchase or acquisition price of Property or services, other than trade accounts payable (other than for  borrowed money) arising, and accrued expenses and deferred taxes incurred and paid, in the ordinary course  





 






  21  of business; (c) Financing Lease Obligations of such Person; (d) obligations of such Person in respect of  Hedging Agreements; and (e) obligations of such Person in respect of letters of credit or similar instruments  issued or accepted by banks and other financial institutions for the account of such Person.  The  Indebtedness of any Person shall include, without duplication, the Indebtedness of any other entity  (including any partnership in which such Person is a general partner) to the extent such Person is liable  therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to  the extent the terms of such Indebtedness provide that such Person is not liable therefor.  “Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect  to any payment made by or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in clause (a), Other Taxes.  “Indemnitee” has the meaning specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07(a).  “Intellectual Property” has the meaning set forth in the Security Agreement.  “Intercompany Debt” has the meaning specified in Section 11.16.  “Interest Payment Date” means, (a) as to any Term SOFR Loan, the last day of each Interest Period  applicable to such Loan and the Maturity Date; (b) as to any Base Rate Loan (including a Swingline Loan),  the last Business Day of each March, June, September and December and the Maturity Date, (c) as to any  Alternative Currency Daily Rate Loan, the last Business Day of each March, June, September and  December and the Maturity Date and (d) as to any Alternative Currency Term Rate Loan, the last day of  each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest  Period for a Term SOFR Loan or an Alternative Currency Term Rate Loan exceeds three months, the  respective dates that fall every three months after the beginning of such Interest Period shall be Interest  Payment Dates.  “Interest Period” means as to each Term SOFR Loan and Alternative Currency Term Rate Loan,  the period commencing on the date such Term SOFR Loan or Alternative Currency Term Rate Loan is  disbursed or converted to or continued as a Term SOFR Loan or Alternative Currency Term Rate Loan and  ending on the date one, three or six months thereafter (in each case, subject to availability for the interest  rate applicable to the relevant currency), as selected by the applicable Borrower in its Committed Loan  Notice; provided that:  (a) any Interest Period that would otherwise end on a day that is not a Business Day  shall be extended to the next succeeding Business Day unless, in the case of a Term SOFR Loan or  Alternative Currency Term Rate Loan, such Business Day falls in another calendar month, in which  case such Interest Period shall end on the next preceding Business Day;  (b) any Interest Period pertaining to a Term SOFR Loan or Alternative Currency Term  Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is  no numerically corresponding day in the calendar month at the end of such Interest Period) shall  end on the last Business Day of the calendar month at the end of such Interest Period; and  (c) no Interest Period shall extend beyond the Maturity Date.  “Investment” means, for any Person: (a) the acquisition (whether for cash, Property, services or  securities or otherwise) of capital stock, bonds, notes, debentures, partnership, limited liability company or  





 






  22  other ownership interests or other securities of any other Person or any agreement to make any such  acquisition (including, without limitation, any “short sale” or any sale of any securities at a time when such  securities are not owned by the Person entering into such short sale); (b) the making of any deposit with, or  advance, loan or other extension of credit to, any other Person (including the purchase of Property from  another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property  to such Person, but excluding any such advance, loan or extension of credit representing the purchase price  of inventory or supplies sold by such Person in the ordinary course of business provided that in no event  shall the term of any such inventory or supply advance, loan or extension of credit exceed 270 days); or (c)  the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other  liability of any other Person and (without duplication) any amount committed to be advanced, loaned or  extended to such Person.  Notwithstanding the foregoing, Capital Expenditures shall not be deemed  “Investments” for purposes hereof.  “IP Collateral” means, collectively, the Collateral relating to intellectual property rights of the  Loan Parties hereunder or under any other Loan Document.  “IRS” means the United States Internal Revenue Service.  “ISP” means the International Standby Practices, International Chamber of Commerce Publication  No. 590 (or such later version thereof as may be in effect at the applicable time).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement or instrument entered into by the L/C Issuer and the Borrower (or any  Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.  “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit F executed  and delivered in accordance with the provisions of Section 6.10.  “Judgment Currency” has the meaning specified in Section 11.23.  “Landlord Waiver” means a landlord or warehouse waiver substantially in the form of Exhibit O.  “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties,  rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,  including the interpretation or administration thereof by any Governmental Authority charged with the  enforcement, interpretation or administration thereof, and all applicable administrative orders, directed  duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority,  in each case whether or not having the force of law.  “L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding  of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage. All L/C  Advances shall be denominated in Dollars.  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit  which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing. All L/C  Borrowings shall be denominated in Dollars.  “L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to  issue Letters of Credit hereunder. The initial amount of the L/C Issuer’s Letter of Credit Commitment is set  forth on Schedule 2.03. The Letter of Credit Commitment of the L/C Issuer may be modified from time to  time by agreement between the L/C Issuer and the Borrower, and notified to the Administrative Agent.  





 






  23  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Disbursement” means the amount of any payment by the L/C Issuer to a beneficiary pursuant  to a drawing on a Letter of Credit.  “L/C Issuer” means Bank of America or any other Lender designated by the Administrative Agent  in its sole discretion and with the consent of such other Lender in its sole discretion, in each case, in its  capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.   Each reference herein to the “L/C Issuer” in connection with a Letter of Credit or other matter shall be  deemed to be a reference to the relevant L/C Issuer with respect thereto.  “L/C Obligations” means, at any time, the sum of (a) the aggregate undrawn amount of all  outstanding Letters of Credit at such time, including any automatic or scheduled increases provided for by  the terms of such Letters of Credit, determined without regard to whether any conditions to drawing could  be met at that time, plus (b) the aggregate amount of all Unreimbursed Amounts, including all L/C  Borrowings.  The L/C Obligations of any Lender at any time shall be its Applicable Percentage of the total  L/C Obligations at such time.  For purposes of computing the amount available to be drawn under any  Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.   For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its  terms but any amount may still be drawn thereunder by reason of the operation of Article 29(a) of the UCP  or Rule 3.13 or Rule 3.14 of the ISP or similar terms of the Letter of Credit itself, or if compliant documents  have been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and  “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrowers and each  Lender shall remain in full force and effect until the L/C Issuer and the Lenders shall have no further  obligations to make any payments or disbursements under any circumstances with respect to any Letter of  Credit.  “Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns  and, unless the context requires otherwise, includes the Swingline Lender.  “Lender Party” and “Lender Recipient Party” means collectively, the Lenders, the Swingline  Lender and the L/C Issuer.  “Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office  or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other  office or offices as such Person may from time to time notify the Borrower and the Administrative Agent,  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or  such Affiliate.  Unless the context otherwise requires, each reference to a Lender shall include its applicable  Lending Office.  “Letter of Credit” means any standby letter of credit issued hereunder and shall include the Existing  Letters of Credit.   “Letter of Credit Application” means an application and agreement for the issuance or amendment  of a Letter of Credit in the form from time to time in use by the L/C Issuer.  “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date  then in effect for the Revolving Facility (or, if such day is not a Business Day, the next preceding Business  Day).  





 






  24  “Letter of Credit Fee” has the meaning specified in Section 2.03(l).  “Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser  of (a) $40,000,000 and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in  addition to, the Revolving Facility.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any  conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title  to real property and any financing lease having substantially the same economic effect as any of the  foregoing, and in the case of securities, any purchase option, call or similar right of a third party with respect  to such securities).  “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Term Loan, a Revolving Loan or a Swingline Loan.  “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the  Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each Joinder Agreement, (h) any  agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, and  (i) all other certificates, agreements, documents and instruments executed and delivered, in each case, by  or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge  Agreement or any Secured Cash Management Agreement) and any amendments, modifications or  supplements thereto or to any other Loan Document or waivers hereof or to any other Loan Document;  provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this Agreement, the  Guaranty and the Collateral Documents.  “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the  other, or (c) a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans, pursuant to  Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved  by the Administrative Agent (including any form on an electronic platform or electronic transmission  system as shall be approved by the Administrative Agent), appropriately completed and signed by a  Responsible Officer of the Borrower.  “Loan Parties” means, collectively, the Borrower and each Guarantor.  “Master Agreement” has the meaning set forth in the definition of “Swap Contract.”  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the operations, business, properties, liabilities (actual or contingent) or financial condition of the  Borrower or the Loan Parties taken as a whole; (b) a material impairment of the rights and remedies of the  Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to  perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect  upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document  to which it is a party.  “Material Agreement” has the meaning set forth in Section 5.20(c).  “Material Core Canadian Subsidiary” means any Core Canadian Subsidiary having assets with a  total book value of greater than or equal to 10% of the total book value of all assets of the Core Ameresco  Companies on a consolidated basis.  





 






  25  “Material Indebtedness” means Indebtedness (other than the Loans or Letters of Credit), including,  without limitation, obligations in respect of one or more Hedging Agreements, in an aggregate principal  amount exceeding $10,000,000.  For purposes of determining Material Indebtedness, the “principal  amount” of the obligations of any Person in respect of a Hedging Agreement at any time shall be the  maximum aggregate amount (giving effect to any netting agreements) that such Person would be required  to pay if such Hedging Agreement were terminated at such time.  “Material Leasehold Property” means any leased Real Property Asset that is leased for a term of  more than 3 years for more than $3,000,000 per year or is reasonably determined by the Administrative  Agent to be of material importance to the operations of the Loan Parties (taken as a whole), other than  operating leases for office space.  “Material Owned Property” means any owned or acquired Real Property Asset that has a fair  market value in excess of $5,000,000 or is reasonably determined by the Administrative Agent to be of  material importance to the operations of the Loan Parties (taken as a whole), and which is listed on  Schedule 1.01(d) hereto from time to time.  “Material Rental Obligations” means obligations of the Loan Parties to pay rent under any one or  more operating leases with respect to any real or personal property that is material to the business of the  Loan Parties (taken as a whole).  “Maturity Date” means (a) with respect to the Revolving Facility, March 4, 2025, (b) with respect  to the Term A Facility, March 4, 2025 and (c) with respect to the Delayed Draw Term A Facility,  September 4, 2023; provided, however, that, in each case, if such date is not a Business Day, the Maturity  Date shall be the next preceding Business Day.  “Mentoring Joint Venture” means a Person formed by a Loan Party, or in which a Loan Party  acquires an Equity Interest, and in which a Loan Party serves as a mentor to a small, or disadvantaged  business in the United States Small Business Administration’s Mentor-Protege Program.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances, an amount equal to 102% of the Fronting Exposure of the L/C Issuer  with respect to Letters of Credit issued and outstanding at such time, (b)  with respect to Cash Collateral  consisting of cash or deposit account balances provided in accordance with the provisions of  Section 2.14(a), an amount equal to 102% of the Outstanding Amount of all L/C Obligations, and (c)  otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Mortgage” means a security instrument (whether designated as a deed of trust or a mortgage,  leasehold mortgage, assignment of leases and rents or by any similar title) executed and delivered by any  Loan Party in such form as may be approved by the Administrative Agent in its sole and reasonable  discretion, in each case with such changes thereto as may be recommended by the Administrative Agent’s  local counsel based on local laws or customary local practices, and at the Administrative Agent’s option,  in the case of an Additional Mortgaged Property, an amendment to an existing Mortgage, in form  satisfactory to the Administrative Agent, adding such Additional Mortgaged Property to the Real Property  Assets encumbered by such existing Mortgage, in either cases as such security instrument or amendment  may be amended, supplemented or otherwise modified from time to time.  





 






  26  “Multiemployer Plan” means any employee benefit plan of the type described in  Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make  contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan  is described in Section 4064 of ERISA.  “Net Cash Payments” means,  (a) with respect to any Casualty Event, the aggregate amount of cash proceeds of  insurance, condemnation awards and other compensation received by the Loan Parties in respect  of such Casualty Event net of (i) reasonable expenses incurred by the Loan Parties in connection  therewith and (ii) contractually required repayments of Indebtedness to the extent secured by a Lien  on such property and (iii) any income and transfer taxes payable by the Loan Parties in respect of  such Casualty Event;  (b) with respect to any Disposition, the aggregate amount of all cash payments  received by the Loan Parties directly or indirectly in connection with such Disposition, whether at  the time of such Disposition or after such Disposition under deferred payment arrangements or  Investments entered into or received in connection with such Disposition, net of (i) the amount of  any legal, title, transfer and recording tax expenses, commissions and other fees and expenses  payable by the Loan Parties in connection therewith, (ii) any Federal, state and local income or  other Taxes estimated to be payable by the Loan Parties as a result thereof, (iii) any repayments by  the Loan Parties of Indebtedness to the extent that such Indebtedness is secured by a Lien on the  property that is the subject of such Disposition and the transferee of (or holder of a Lien on) such  property requires that such Indebtedness be repaid as a condition to the purchase of such property,  (iv) any repayments by the Loan Parties to minority stockholders if and to the extent permitted  hereby, and (v) a reasonable reserve for retained liabilities; and  (c) with respect to any incurrence of Indebtedness, the aggregate amount of all cash  proceeds received by the Loan Parties therefrom less all legal, underwriting, registration,  marketing, filing and similar fees and expenses incurred in connection therewith.  “Non-Cash Charges” means (a) any impairment charge or asset write-off or write-down related to  intangible assets (including goodwill), long-lived assets, and Investments in debt and equity securities  pursuant to GAAP (it being understood and agreed that any impairment charge or asset write-off or write- down of any accounts receivable realized in connection with any Energy Savings Performance Contract for  an Energy Conservation Project shall not be added back to EBITDA), (b) all losses from Investments  recorded using the equity method, (c) the non-cash impact of acquisition method accounting, (d) non-cash  losses attributable to the mark to market movement in the valuation of (i) hedging obligations (to the extent  the cash impact resulting from such loss has not been realized) or other derivative instruments pursuant to  Financial Accounting Standards Accounting Standards Codification No. 815—Derivatives and Hedging,  and(ii) foreign currency translations, (e) non-cash losses from Dispositions for such period and (f) other  non-cash charges, expenses or charges, including expenses and costs that result from stock based awards,  partnership interest based awards and similar incentive based awards or arrangements.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected  Lenders in a Facility, in accordance with the terms of Section 11.01 and (b) has been approved by the  Required Lenders.  





 






  27  “Non-Core Company” means (i) a direct or indirect domestic Subsidiary or Foreign Subsidiary of  the Borrower, or (ii) a domestic or foreign joint venture to which a Loan Party, a Core Foreign Subsidiary  or Non-Core Company is a party, which, in either case, is (x) not itself a Loan Party, and (y) is identified  as a Non-Core Company on Schedule 5.15.  “Non-Core Project” means any energy or other infrastructure project.   “Non-Core Project Financing” means a credit facility or Financing Lease Obligation entered into  by one or more Non-Core Companies to finance the acquisition, construction or implementation of one or  more Non-Core Projects and any Hedging Agreement related thereto.  “Non-Core Project Guaranty” means in connection with any Non-Core  Project, (a) any Guarantee  (other than a Construction Completion and Cost Overrun Guaranty) by any Loan Party or a Core Foreign  Subsidiary of the obligations of the Non-Core Company in connection with such Non-Core Project; (b) any  indemnification by any Loan Party or a Core Foreign Subsidiary of (i) the Non-Core Company’s customer,  (ii) the owner of property used for such Non-Core Project, (iii) the third party purchaser of gas or energy  and related products (including tax and environmental credits, heating, cooling, renewable natural gas,  energy, energy as a service, and/or battery storage, wastewater or other Non-Core Project offtake) produced  from such Non-Core Project; and (c) any indemnification by any Loan Party in connection with the tax  equity financing (including sale leaseback financing) of such Non-Core Project; provided, however, that no  Non-Core Project Guaranty shall guarantee the Indebtedness of any Person (or in the case of any sale  leaseback financing of such Non-Core Project, any basic rent).   “Non-Core Project Guaranty Liability” means, in connection with any Non-Core Project  Guaranty, any liability required to be accrued on the consolidated balance sheet of the Core Ameresco  Companies in accordance with GAAP.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Extension Notice Date” has the meaning specified in Section 2.03(b).  “Note” means a Revolving Note, a Swingline Loan Note or a Term Note, as the context may  require.  “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall  be substantially in the form of Exhibit R or such other form as may be approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be approved  by the Administrative Agent), appropriately completed and signed by a Responsible Officer.  “Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of,  any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit  and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing,  including the fees, charges and disbursements of counsel, in each case to the extent payable under the Loan  Documents and whether direct or indirect (including those acquired by assumption), absolute or contingent,  due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue  after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding  under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether  such interest, expenses and fees are allowed claims in such proceeding; provided that, without limiting the  foregoing, the Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to  such Guarantor.  





 






  28  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Officer’s Certificate” means a certificate substantially the form of Exhibit J or any other form  approved by the Administrative Agent.  “Organization Documents” means, (a) with respect to any corporation, the charter or certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect  to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement or limited liability company agreement (or equivalent  or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,  joint venture, trust or other form of business entity, the partnership, joint venture or other applicable  agreement of formation or organization (or equivalent or comparable documents with respect to any non- U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect  thereto filed in connection with its formation or organization with the applicable Governmental Authority  in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to  any non-U.S. jurisdiction).  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan  or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline  Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof  after giving effect to any Borrowings and prepayments or repayments of Term Loans, Revolving Loans and  Swingline Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations  on any date, the Dollar Equivalent Amount of the aggregate outstanding amount of such L/C Obligations  on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes  in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements  by the Borrower of Unreimbursed Amounts.  “Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the  greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the  L/C Issuer, or the Swingline Lender, as the case may be, in accordance with banking industry rules on  interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, an  overnight rate determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance  with banking industry rules on interbank compensation.  “Participant” has the meaning specified in Section 11.06(d).  “Participant Register” has the meaning specified in Section 11.06(d).  





 






  29  “Participating Member State” means any member state of the European Union that adopts or has  adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to  Economic and Monetary Union.  “Patents” means all patents issued or assigned to and all patent applications made by the Loan  Parties and, to the extent that the grant of a security interest does not cause a breach or termination thereof,  all exclusive and nonexclusive licenses to the Loan Parties from third parties or rights to use patents owned  by such third parties, including, without limitation, the patents, patent applications and licenses listed on  Schedule 5.08 hereto, along with any and all (a) inventions and improvements described and claimed  therein, (b) reissues, divisions, continuations, extensions and continuations-in-part thereof, (c) income,  royalties, damages, claims and payments now and hereafter due and/or payable under and with respect  thereto, including, without limitation, damages and payments for past or future infringements thereof, (d)  rights to sue for past, present and future infringements thereof, and (e) any other rights corresponding  thereto throughout the world.  “Patriot Act” has the meaning specified in Section 11.20.  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding  standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code  and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan  but excluding a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA  Affiliate or with respect to which the Borrower or any ERISA Affiliate has any liability and is either covered  by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.  “Permitted Acquisition” has the meaning set forth in Section 7.04(d).  “Permitted Investments” means:  (a) direct obligations of, or obligations the principal of and interest on which are  unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent  such obligations are backed by the full faith and credit of the United States of America), in each  case maturing within one year from the date of acquisition thereof;  (b) investments in commercial paper maturing within 270 days from the date of  acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from  Standard and Poor’s Ratings Service or from Moody’s Investors Service, Inc.;  (c) investments in certificates of deposit, banker’s acceptances and time deposits  maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed  with, and money market deposit accounts issued or offered by, any domestic office of any  commercial bank organized under the laws of the United States of America or any State thereof  which has a combined capital and surplus and undivided profits of not less than $250,000,000;  (d) fully collateralized repurchase agreements with a term of not more than 30 days  for securities described in clause (a) above and entered into with a financial institution satisfying  the criteria described in clause (d) above;  





 






  30  (e) advances, loans and extensions of credit to any director, officer or employee of the  Loan Parties, if the aggregate outstanding amount of all such advances, loans and extensions of  credit (excluding travel advances in the ordinary course of business) does not at any time exceed  $750,000; and  (f) investments in money market mutual funds that are rated AAA by S&P.  “Permitted Liens” has the meaning specified in Section 7.02.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any Subsidiary or any such Plan to which  the Borrower or any Subsidiary is required to contribute on behalf of any of its employees or with respect  to which the Borrower has any liability.  “Platform” has the meaning specified in Section 6.01.  “Pledged Equity” has the meaning specified in the Security Agreement.  “Pro Forma Basis” and “Pro Forma Effect” means, for any Disposition of all or substantially all  of a division or a line of business, for any Acquisition or for any Junior Restricted Payment, whether actual  or proposed, for purposes of determining compliance with the financial covenants set forth in Section 7.10,  and with respect to a Junior Restricted Payment pursuant to Section 7.06(d), each such transaction or  proposed transaction shall be deemed to have occurred on and as of the first day of the relevant period, and  the following pro forma adjustments shall be made:  (a) in the case of an actual or proposed Disposition, all income statement items  (whether positive or negative) attributable to the line of business or the Person subject to such  Disposition shall be excluded from the results of the Core Ameresco Companies for such period;   (b) in the case of an actual or proposed Acquisition, income statement items (whether  positive or negative) attributable to the property, line of business or the Person subject to such  Acquisition shall be included in the results of the Core Ameresco Companies for such period;   (c) interest accrued during the relevant period on, and the principal of, any  Indebtedness repaid or to be repaid or refinanced in such transaction shall be excluded from the  results of the Core Ameresco Companies for such period; and  (d) any Indebtedness actually or proposed to be incurred or assumed in such  transaction shall be deemed to have been incurred as of the first day of the applicable period, and  interest thereon shall be deemed to have accrued from such day on such Indebtedness at the  applicable rates provided therefor (and in the case of interest that does or would accrue at a formula  or floating rate, at the rate in effect at the time of determination) and shall be included in the results  of the Core Ameresco Companies for such period.  “Pro Forma Compliance” means, with respect to any transaction, that such transaction does not  cause, create or result in a Default after giving Pro Forma Effect, based upon the results of operations for  the most recently completed applicable period to (a) such transaction and (b) all other transactions which  





 






  31  are contemplated or required to be given Pro Forma Effect hereunder that have occurred on or after the first  day of the relevant period.  “Property” means any interest of any kind in property or assets, whether real, personal or mixed,  and whether tangible or intangible.  “Proprietary Rights” has the meaning assigned to such term in Section 5.08(b).  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as  any such exemption may be amended from time to time.  “PTO” means the United States Patent and Trademark Office or any successor or substitute office  in which filings are necessary or, in the opinion of the Administrative Agent, desirable in order to create or  perfect Liens on any IP Collateral.  “Public Lender” has the meaning specified in Section 6.01.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning specified in Section 11.22.  “Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding  $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Rate Determination Date” means two (2) Business Days prior to the commencement of such  Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such  interbank market, as determined by the Administrative Agent; provided that, to the extent such market  practice is not administratively feasible for the Administrative Agent, then “Rate Determination Date”  means such other day as otherwise reasonably determined by the Administrative Agent).  “Real Property Asset” means, at any time of determination, any and all real property owned or  leased by the Loan Parties.  “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.  “Register” has the meaning specified in Section 11.06(c).  “Registered Proprietary Rights” has the meaning assigned to such term in Section 5.08(c).  “Regulation U” means Regulation U of the FRB, as in effect from time to time and all official  rulings and interpretations thereunder or thereof.  “Reimbursement Obligation” has the meaning assigned to such term in Section 2.03(f).  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service  providers and representatives of such Person and of such Person’s Affiliates.  





 






  32  “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping,  pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any  building, structure or facility.  “Relevant Governmental Body” means (a) with respect to Loans denominated in Dollars, the  Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed  or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, (b) with respect  to Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by  the Bank of England or, in each case, any successor thereto, (c) with respect to Loans denominated in Euros,  the European Central Bank, or a committee officially endorsed or convened by the European Central Bank  or, in each case, any successor thereto, and (d) with respect to Loans denominated in any other Agreed  Currency, (i) the central bank for the currency in which such Loan is denominated or any central bank or  other supervisor which is responsible for supervising either (x) such Successor Rate or (y) the administrator  of such Successor Rate or (ii) any working group or committee officially endorsed or convened by (w) the  central bank for the currency in which such Successor Rate is denominated, (x) any central bank or other  supervisor that is responsible for supervising either (A) such Successor Rate or (B) the administrator of  such Successor Rate, (y) a group of those central banks or other supervisors or (z) the Financial Stability  Board or any part thereof.  “Relevant Rate” means with respect to any Credit Extension denominated in (a) Dollars, Term  SOFR, (b) Sterling, SONIA, (c) Euros, EURIBOR, and (d) Canadian Dollars, the CDOR Rate, as applicable  “Removal Effective Date” has the meaning specified in Section 9.06(b).  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30) day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation  of Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of  Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.  “Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments,  Lenders having Total Credit Exposures with respect to such Class representing more than 50% of the Total  Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with  respect to such Class shall be disregarded in determining Required Class Lenders at any time.  “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more  than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender  shall be disregarded in determining Required Lenders at any time; provided that, the amount of any  participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to  fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the  Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination;  provided further that, this definition is subject to Section 3.03.  “Required Revolving Lenders” means, at any time, Revolving Lenders having Total Revolving  Exposures representing more than 50% of the Total Revolving Exposures of all Revolving Lenders. The  Total Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required  Revolving Lenders at any time; provided that, the amount of any participation in any Swingline Loan and  Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to  and funded by another Lender shall be deemed to be held by the Revolving Lender that is the Swingline  Lender or the L/C Issuer, as the case may be, in making such determination.  





 






  33  “Required Term Lenders” means, at any time, (a) with respect to the Term A Facility, Term  Lenders having Total Term Credit Exposures representing more than 50% of the Total Term Credit  Exposures of all Term Lenders with respect to the Term A Facility, and (b) with respect to the Delayed  Draw Term A Facility, Term Lenders having Total Term Credit Exposures representing more than 50% of  the Total Term Credit Exposures of all Term Lenders with respect to the Delayed Draw Term A Facility.  The Total Term Credit Exposure of any Defaulting Lender shall be disregarded in determining Required  Term Lenders at any time.  “Rescindable Amount” has the meaning as defined in Section 2.12(b)(ii).  “Resignation Effective Date” has the meaning set forth in Section 9.06(a).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means the chief financial officer, principal accounting officer, treasurer,  assistant treasurer or controller of a Loan Party, solely for purposes of the delivery of incumbency  certificates pursuant to Section 4.01(b), the secretary or any assistant secretary of a Loan Party and, solely  for purposes of notices given pursuant to Article II, any other officer or employee of the Borrower so  designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or  employee of the Borrower designated in or pursuant to an agreement between the applicable Loan Party  and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer  of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,  partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be  conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the  Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent  requested by the Administrative Agent, appropriate authorization documentation, in form and substance  satisfactory to the Administrative Agent.  “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on  account of any shares of any class of Equity Interest in, any Loan Party or any Subsidiary now or hereafter  outstanding, except a dividend payable solely in shares of Equity Interests, (ii) any redemption, retirement,  sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of  any class of Equity Interest in, any Loan Party or any Subsidiary now or hereafter outstanding by such Loan  Party or Subsidiary, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants,  options or other rights to acquire shares of any class of Equity Interest in, any Loan Party or any Subsidiary,  (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption purchase,  retirement, defeasance (including economic or legal defeasance), sinking fund or similar payment with  respect to, any Subordinated Indebtedness, and (v) any payment made to any Affiliates of any Loan Party  or any Subsidiary in respect of management, consulting or other similar services provided to any Loan Party  or any Subsidiary.  “Restrictive Agreements” has the meaning assigned to such term in Section 5.15(b).  “Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a  Borrowing of an Alternative Currency Loan, (ii) each date of a continuation of an Alternative Currency  Term Rate Loan pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall  determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the  following: (i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in an  Alternative Currency, (ii) each date of any payment by the L/C Issuer under any Letter of Credit  denominated in an Alternative Currency, (iii) in the case of all Existing Letters of Credit denominated in  





 






  34  Alternative Currencies, the Closing Date, and (iv) such additional dates as the Administrative Agent or the  L/C Issuer shall determine or the Required Lenders shall require.  “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the  same Type and, in the case of Term SOFR Loans or Alternative Currency Loans, having the same Interest  Period made by each of the Revolving Lenders pursuant to Section 2.01(b).  “Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make  Revolving Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C  Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any  one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b)  under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption  pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from  time to time in accordance with this Agreement. The Revolving Commitment of all of the Revolving  Lenders on the Closing Date shall be $200,000,000.  “Revolving 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 L/C Obligations and Swingline  Loans at such time.  “Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’  Revolving Commitments at such time.  “Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any  Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have  terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or  Swingline Loans at such time.  “Revolving Loan” has the meaning specified in Section 2.01(b).  “Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender  evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender,  substantially in the form of Exhibit C.  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.  “Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately  available funds, and (b with respect to disbursements and payments in an Alternative Currency, same day  or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to  be customary in the place of disbursement or payment for the settlement of international banking  transactions in the relevant Alternative Currency.  “Sanction(s)” means any sanction administered or enforced by the United States Government  (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her  Majesty’s Treasury (“HMT”) or other relevant sanctions authority.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  





 






  35  “Secured Cash Management Agreement” means any Cash Management Agreement between the  any Loan Party and any Cash Management Bank.  “Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity  Swap Contract required by or not prohibited under Article VI or VII between any Loan Party and any Hedge  Bank.  “Secured Obligations” means all Obligations and all Additional Secured Obligations.  “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the  Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by  the Administrative Agent from time to time pursuant to Section 9.05.  “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit H.  “Security Agreement” means the security and pledge agreement, dated as of the Closing Date,  executed in favor of the Administrative Agent by each of the Loan Parties, substantially in the form of  Exhibit E.  “SoCal Contract” means that certain Turnkey Engineering, Procurement, Construction and  Maintenance Agreement dated as of October 21, 2021, as the same may be amended from time to time, and  the related purchase orders entered into thereunder, between the Borrower and Southern California Edison,  as listed on Schedule 5.20.  “SOFR” means the Secured Overnight Financing Rate as administered by the SOFR Administrator.  “SOFR Adjustment” with respect to Daily Simple SOFR means 0.15000% (15.000 basis points);  and with respect to Term SOFR means 0.10000% (10.000 basis points) for an Interest Period of one- month’s duration, 0.15000% (15.000 basis points) for an Interest Period of three-month’s duration, and  0.25000% (25.000 basis points) for an Interest Period of six-months’ duration.  “SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of  SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or  other Person acting as the SOFR Administrator at such time.  “Solvency Certificate” means a solvency certificate in substantially in the form of Exhibit I.  “SONIA” means, with respect to any applicable determination date, the Sterling Overnight Index  Average Reference Rate published on fifth Business Day preceding such date 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); provided that if such day is not a Business Day, then  SONIA means such rate published on the Business Day immediately prior thereto.  “SONIA Adjustment” means, with respect to SONIA, 0.1193%.  “Southern California Edison” means Southern California Edison Company, a California  corporation.  “Specified Loan Party” means any Loan Party that is not then an “eligible contract participant”  under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).  





 






  36  “Specified Shareholders” means any one or more of George Sakellaris and his immediate family  members and heirs and any trusts for the benefit of the foregoing.  “Sterling” and “£” mean the lawful currency of the United Kingdom.  “Subordinated Debt Documents” means all instruments, agreements and other documents  executed and delivered by the Loan Parties in connection with Subordinated Indebtedness.  “Subordinated Indebtedness” means, any Indebtedness of the Core Ameresco Companies incurred  after the Closing Date with the consent of the Administrative Agent that by its terms (or by the terms of the  instrument under which it is outstanding and to which appropriate reference is made in the instrument  evidencing such Subordinated Indebtedness) (a) is subordinated in right of payment to the prior payment  of the Obligations and (b) contains other terms, including without limitation, standstill, interest rate,  maturity and amortization, and insolvency-related provisions, in all respects reasonably satisfactory to the  Administrative Agent.  “Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited  liability company, partnership, association or other entity the accounts of which would be consolidated with  those of the parent in the parent’s consolidated financial statements if such financial statements were  prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability  company, partnership, association or other entity (a) of which securities or other ownership interests  representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50%  of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such  date, otherwise Controlled (as described in the first sentence of the definition of “Control”), by the parent  and/or one or more subsidiaries of the parent.  References herein to “Subsidiaries” shall, unless the context  requires otherwise, be deemed to be references to Subsidiaries of the Borrower.  “Successor Rate” has the meaning specified in Section 3.03(b).  “Supported QFC” has the meaning specified in Section 11.22.  “Swap Contract” 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, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  “Swap Obligations” 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 Termination Value” means, in respect of any one or more Swap Contracts, after taking into  account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any  





 






  37  date on or after the date such Swap Contracts 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 Contracts, as determined based  upon one or more mid-market or other readily available quotations provided by any recognized dealer in  such Swap Contracts (which may include a Lender or any Affiliate of a Lender).  “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.  “Swingline Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s  name on Schedule 2.01 hereof or (b) if such Lender has entered into an Assignment and Assumption or has  otherwise assumed a Swingline Commitment after the Closing Date, the amount set forth for such Lender  as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section  11.06(c).  “Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or any  successor swingline lender hereunder.  “Swingline Loan” has the meaning specified in Section 2.04(a).  “Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b),  which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be approved  by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the  Borrower.  “Swingline Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving  Facility. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.  “TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be  operative, such other payment system, if any, determined by the Administrative Agent to be a suitable  replacement) is open for the settlement of payments in Euro.  “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer  payment system which utilizes a single shared platform and which was launched on November 19, 2007.  “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 A Facility” means, as to each Term Lender, its obligation to make Term A Loans to the  Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption  “Term A Commitment” or opposite such caption in the Assignment and Assumption pursuant to which  such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time  in accordance with this Agreement. The aggregate of the Term Commitments under the Term A Facility of  all of the Term Lenders on the Closing Date shall be $75,000,000.  “Term A Loan” has the meaning set forth in Section 2.01(a).  





 






  38  “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type  and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Term Lenders  pursuant to Section 2.01(a).  “Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the  Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption  “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such  Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in  accordance with this Agreement. The Term Commitment of all of the Term Lenders on the Closing Date  shall be $75,000,000 with respect to Term A Loans and $220,000,000 with respect to Delayed Draw Term  A Loans.  “Term Facility” means the Delayed Draw Term A Facility or the Term A Facility, or both, as the  context may require.  “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term  Commitment at such time, (b) at any time during the Availability Period in respect of the Delayed Draw  Term A Loans, any Lender that has a Term Commitment for Delayed Draw Term A Loans or that holds  Delayed Draw Term A Loans at such time and (c) at any time after the Closing Date, any Lender that holds  Term Loans at such time.  “Term Loan” means an advance made by any Term Lender under the Term A Facility or the  Delayed Draw Term A Facility.  “Term Note” means a promissory note made by the Borrower in favor of a Term Lender evidencing  Term Loans made by such Term Lender, substantially in the form of Exhibit D-1 for Term A Loans and  substantially in the form of Exhibit D-2 for Delayed Draw Term A Loans.  “Term SOFR” means:  (a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum  equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the  commencement of such Interest Period with a term equivalent to such Interest Period; provided that  if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means  the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately  prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and  (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate  per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;  provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b)  of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of  this Agreement.  “Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition  of Term SOFR.  “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or  any successor administrator satisfactory to the Administrative Agent) and published on the applicable  





 






  39  Reuters screen page (or such other commercially available source providing such quotations as may be  designated by the Administrative Agent from time to time).  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving  Exposure and Outstanding Amount of all Term Loans of such Lender at such time.  “Total Funded Debt” means (a) the outstanding principal amount of all Indebtedness of the Core  Ameresco Companies determined on a consolidated basis (without duplication) in respect of borrowed  money, plus the face amount of letters of credit for which a Core Ameresco Company is an obligor to the  extent such letters of credit are not secured by cash deposits, including (i) all Indebtedness described in  clauses (a), (b), (c) and (e) of the definition of Indebtedness set forth herein, including all guarantees of any  of such Indebtedness, and (ii) all Non-Core Project Guaranty Liabilities, but excluding any Indebtedness  incurred by the Loan Parties in connection with any Energy Conservation Project Financing other than as  set forth in clause (b) below, plus (b) any “Federal ESPC Liabilities” (as set forth on the Borrower’s most  recent consolidated balance sheet) related to an Energy Savings Performance Contract for an Energy  Conservation Project, where such Core Ameresco Company is in default beyond any applicable grace or  notice periods.  “Total Revolving Exposure” means, as to any Revolving Lender at any time, the unused  Commitments and Revolving Exposure of such Revolving Lender at such time.  “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans,  Swingline Loans and L/C Obligations.  “Total Term Credit Exposure” means, as to any Term Lender at any time, the sum of the unused  Commitments with respect to the Delayed Draw Term A Loans and the Outstanding Amount of all Term  Loans of such Term Lender at such time.  “Total Voting Power” means, with respect to any Person, the total number of votes which holders  of securities having the ordinary power to vote, in the absence of contingencies, are entitled to cast in the  election of directors of such Person.  “Trademarks” means all trademarks (including service marks), federal and state trademark  registrations and applications made by the Loan Parties, common law trademarks and trade names owned  by or assigned to the Loan Parties, all registrations and applications for the foregoing and all exclusive and  nonexclusive licenses from third parties of the right to use trademarks of such third parties, including,  without limitation, the registrations, applications, unregistered trademarks, service marks and licenses listed  on Schedule 5.08 hereto, along with any and all (a) renewals thereof,(b) income, royalties, damages and  payments now and hereafter due and/or payable with respect thereto, including, without limitation,  damages, claims and payments for past or future infringements thereof, (c) rights to sue for past, present  and future infringements thereof, and (d) foreign trademarks, trademark registrations, and trade name  applications for any thereof and any other rights corresponding thereto throughout the world.  “Type” means, with respect to a Loan, its character as a Base Rate Loan or a Term SOFR Loan.  “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that,  if perfection or the effect of perfection or non-perfection or the priority of any security interest in any  Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State  of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other  jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non- perfection or priority.  





 






  40  “UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber  of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(f).  “U.S. Government Securities Business Day” means any Business Day, except any Business Day  on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange  or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under  the federal laws of the United States or the laws of the State of New York, as applicable.  “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regimes” has the meaning specified in Section 11.22.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).  “Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors  (or persons performing similar functions) of such Person, even though the right to so vote has been  suspended by the happening of such contingency.  “Wholly Owned Subsidiary” means, with respect to any Person at any date, any corporation,  limited liability company, partnership, association or other entity of which securities or other ownership  interests representing 100% of the equity or ordinary voting power (other than directors’ qualifying shares)  or, in the case of a partnership, 100% of the general partnership interests are, as of such date, directly or  indirectly owned, controlled or held by such Person or one or more Wholly Owned Subsidiaries of such  Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.  “Withholding Agent” means the Borrower and the Administrative Agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the  Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised  





 






  41  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other Loan  Document, unless otherwise specified herein or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural forms  of the terms defined. Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms. The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”  shall be construed to have the same meaning and effect as the word “shall.” Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including the Loan Documents and any Organization Document) shall be construed as  referring to such agreement, instrument or other document as from time to time amended, amended  and restated, modified, extended, restated, replaced or supplemented from time to time (subject to  any restrictions on such amendments, supplements or modifications set forth herein or in any other  Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of  similar import when used in any Loan Document, shall be construed to refer to such Loan  Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan  Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed  to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the  Loan 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 reference to any law, rule or regulation shall, unless  otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated,  replaced 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) In the computation of periods of time from a specified date to a later specified date,  the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any other  Loan Document.  (d) Any reference herein to a merger, transfer, consolidation, amalgamation,  assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division of  or by a limited liability company, or an allocation of assets to a series of a limited liability company  (or the unwinding of such a Division or allocation), as if it were a merger, transfer, consolidation,  amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with  a separate Person. Any Division of a limited liability company shall constitute a separate Person  hereunder (and each Division of any limited liability company that is a Subsidiary, joint venture or  any other like term shall also constitute such a Person or entity).  1.03 Accounting Terms.  (a) Generally. All accounting terms not specifically or completely defined herein shall  be construed in conformity with, and all financial data (including financial ratios and other financial  





 






  42  calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity  with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner  consistent with that used in preparing the Audited Financial Statements, except as otherwise  specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining  compliance with any covenant (including the computation of any financial covenant) contained  herein, (i) 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, (ii) all liability amounts shall be determined  excluding any liability relating to any operating lease, all asset amounts shall be determined  excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be  determined excluding any amortization of a right-of-use asset relating to any operating lease, and  all interest amounts shall be determined excluding any deemed interest  comprising a portion of  fixed rent payable under any operating lease, in each case to the extent that such liability, asset,  amortization or interest pertains to an operating lease under which the covenantor or a member of  its consolidated group is the lessee and would not have been accounted for as such under GAAP as  in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein  shall be construed, and all computations of amounts and ratios referred to herein shall be made,  without giving effect to any election under FASB ASC Topic 825 “Financial Instruments” (or any  other financial accounting standard having a similar result or effect) to value any Indebtedness of  the Borrower or any Subsidiary at “fair value”, as defined therein. For purposes of determining the  amount of any outstanding Indebtedness, no effect shall be given to any election by the Borrower  to measure an item of Indebtedness using fair value (as permitted by Financial Accounting  Standards Board Accounting Standards Codification 825–10–25 (formerly known as FASB 159)  or any similar accounting standard).  (b) Changes in GAAP. If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided that, until so amended, (i) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the  Administrative Agent and the Lenders financial statements and other documents required under  this Agreement or as reasonably requested hereunder setting forth a reconciliation between  calculations of such ratio or requirement made before and after giving effect to such change in  GAAP.   (c) Pro Forma Treatment. Each Disposition of all or substantially all of a line of  business, and each Acquisition, by the Borrower and its Subsidiaries that is consummated during  any fiscal period shall, for purposes of determining compliance with the financial covenants set  forth in Section 7.11 and for purposes of determining the Applicable Rate, be given Pro Forma  Effect as of the first day of such fiscal period.  1.04 Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to  this Agreement shall be calculated by dividing the appropriate component by the other component, carrying  the result to one place more than the number of places by which such ratio is expressed herein and rounding  the result up or down to the nearest number (with a rounding-up if there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be  references to Eastern time (daylight or standard, as applicable).  





 






  43  1.06 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of  Credit at any time shall be deemed to be  the stated amount of such Letter of Credit in effect at such time;  provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer  Document related thereto, provides for one or more automatic increases in the stated amount thereof, the  amount of such Letter of Credit shall be deemed to be  the maximum stated amount of such Letter of Credit  after giving effect to all such increases, whether or not such maximum stated amount is in effect at such  time.  1.07 Interest Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor  shall the Administrative Agent have any liability with respect to the administration, submission or any other  matter related to the rates in the definition of “Term SOFR”, “Alternative Currency Daily Rate”,  “Alternative Currency Term Rate” or with respect to any rate (including, for the avoidance of doubt, the  selection  of such rate and any related spread or other adjustment) that is an alternative or replacement for  or successor to any such rate (including, without limitation, any Successor Rate) or the effect of any of the  foregoing, or of any Conforming Changes.  The Administrative Agent and its affiliates or other related  entities may engage in transactions or other activities that affect any reference rate referred to herein, or  any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any  component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a  manner adverse to the Borrower.  The Administrative Agent may select information sources or services in  its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or  replacement rate (including, without limitation, any Successor Rate) (or any component of any of the  foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower,  any Lender or any other person or entity for damages of any kind, including direct or indirect, special,  punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or  otherwise and whether at law or in equity), for any error or other action or omission related to or affecting  the selection, determination, or calculation of any rate (or component thereof) provided by any such  information source or service.  1.08 Exchange Rates; Currency Equivalents.  (a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the  Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in  Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date  and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except  for purposes of financial statements delivered by Loan Parties hereunder or calculating financial  covenants hereunder or except as otherwise provided herein, the applicable amount of any currency  (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount  as so determined by the Administrative Agent or the L/C Issuer, as applicable.  (b) Wherever in this Agreement in connection with a Borrowing, conversion,  continuation or prepayment of an Alternative Currency Loan or the issuance, amendment or  extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is  expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative  Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar  amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded  upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.  1.09 Additional Alternative Currencies.  (a) The Borrower may from time to time request that Alternative Currency Loans be  made and/or Letters of Credit be issued in a currency other than those specifically listed in the  





 






  44  definition of “Alternative Currency”; provided that such requested currency is an Eligible  Currency. In the case of any such request with respect to the making of Alternative Currency Loans,  such request shall be subject to the approval of the Administrative Agent and each Lender; and in  the case of any such request with respect to the issuance of Letters of Credit, such request shall be  subject to the approval of the Administrative Agent and the L/C Issuer.  (b) Any such request shall be made to the Administrative Agent not later than  11:00 a.m., twenty (20) Business Days prior to the date of the desired Credit Extension (or such  other time or date as may be agreed by the Administrative Agent and, in the case of any such request  pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such  request pertaining to Alternative Currency Loans, the Administrative Agent shall promptly notify  each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the  Administrative Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any  such request pertaining to Alternative Currency Loans) or the L/C Issuer (in the case of a request  pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten  (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the  making of Alternative Currency Loans or the issuance of Letters of Credit, as the case may be, in  such requested currency.  (c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such  request within the time period specified in the preceding sentence shall be deemed to be a refusal  by such Lender or the L/C Issuer, as the case may be, to permit Alternative Currency Loans to be  made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and  all the Lenders consent to making Alternative Currency Loans in such requested currency and the  Administrative Agent and such Lenders reasonably determine that an appropriate interest rate is  available to be used for such requested currency, the Administrative Agent shall so notify the  Borrower and (i) the Administrative Agent and such Lenders may amend the definition of  Alternative Currency Daily Rate or Alternative Currency Term Rate to the extent necessary to add  the applicable rate for such currency and any applicable adjustment for such rate and (ii) to the  extent the definition of Alternative Currency Daily Rate or Alternative Currency Term Rate, as  applicable, has been amended to reflect the appropriate rate for such currency, such currency shall  thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Borrowings  of Alternative Currency Loans. If the Administrative Agent and the L/C Issuer consent to the  issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify  the Borrower and (iii) the Administrative Agent and the L/C Issuer may amend the definition of  Alternative Currency Daily Rate or Alternative Currency Term Rate, as applicable, to the extent  necessary to add the applicable rate for such currency and any applicable adjustment for such rate  and (iv) to the extent the definition of Alternative Currency Daily Rate or Alternative Currency  Term Rate, as applicable, has been amended to reflect the appropriate rate for such currency, such  currency shall thereupon be deemed for all purposes to be an Alternative Currency, for purposes of  any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request  for an additional currency under this Section 1.09, the Administrative Agent shall promptly so  notify the Borrower.  1.10 Change of Currency.   (a) Each obligation of the Borrower to make a payment denominated in the national  currency unit of any member state of the European Union that adopts the Euro as its lawful currency  after the date hereof shall be redenominated into Euro at the time of such adoption. If, in relation  to the currency of any such member state, the basis of accrual of interest expressed in this  Agreement in respect of that currency shall be inconsistent with any convention or practice in the  





 






  45  interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis  shall be replaced by such convention or practice with effect from the date on which such member  state adopts the Euro as its lawful currency; provided that, if any Borrowing in the currency of such  member state is outstanding immediately prior to such date, such replacement shall take effect,  with respect to such Borrowing, at the end of the then current Interest Period.  (b) Each provision of this Agreement shall be subject to such reasonable changes of  construction as the Administrative Agent may from time to time specify to be appropriate to reflect  the adoption of the Euro by any member state of the European Union and any relevant market  conventions or practices relating to the Euro.  (c) Each provision of this Agreement also shall be subject to such reasonable changes  of construction as the Administrative Agent may from time to time specify to be appropriate to  reflect a change in currency of any other country and any relevant market conventions or practices  relating to the change in currency.  ARTICLE II    COMMITMENTS AND CREDIT EXTENSIONS  2.01 Loans.  (a) Term Borrowing. Subject to the terms and conditions set forth herein, (i) each  Term Lender severally agrees to make a single loan (each such loan, a “Term A Loan”) to the  Borrower, in Dollars, on the Closing Date in an amount not to exceed such Term Lender’s  Applicable Percentage of the Term A Facility; and (ii) each Term Lender severally agrees to make  up to three (3) loans (each such loan, a “Delayed Draw Term A Loan”) to the Borrower, in Dollars,  from time to time on any Business Day during the Availability Period for the Delay Draw Term A  Facility, in an aggregate amount not to exceed such Term Lender’s Applicable Percentage of the  Delayed Draw Term A Facility. Each Term Borrowing shall consist of Term Loans made  simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of  the Term A Facility or the Delayed Draw Term A Facility, as applicable. Term Borrowings repaid  or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Term SOFR Loans, as  further provided herein; provided, however, any Term Borrowing made on the Closing Date or any  of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless  the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the  date of such Term Borrowing.  (b) Revolving Borrowings. Subject to the terms and conditions set forth herein, each  Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the  Borrower, in Dollars or in one or more Alternative Currencies, from time to time, on any Business  Day during the Availability Period for the Revolving Facility, in an aggregate amount not to exceed  at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however,  that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not  exceed the Revolving Facility, (ii) the Revolving Exposure of any Lender shall not exceed such  Revolving Lender’s Revolving Commitment, and (iii) the aggregate Outstanding Amount of all  Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit.  Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other  terms and conditions hereof, the Borrower may borrow Revolving Loans, prepay under Section  2.05, and reborrow under this Section 2.01(b). Revolving Loans may be Base Rate Loans, Term  SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans,  





 






  46  as further provided herein; provided, however, any Revolving Borrowings made on the Closing  Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate  Loans unless the Borrower delivers a Funding Indemnity Letter not less than three (3) Business  Days prior to the date of such Revolving Borrowing.  2.02 Borrowings, Conversions and Continuations of Loans.  (a) Each Borrowing, each conversion of Loans from one Type to the other, and each  continuation of Term SOFR Loans or an Alternative Currency Term Rate Loan shall be made upon  the Borrower’s irrevocable notice to the Administrative Agent, which may be given by  (A) telephone or (B) a Loan Notice; provided that any telephonic notice must be confirmed  immediately by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice  must be received by the Administrative Agent not later than 11:00 a.m. (i) two Business Days prior  to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans or  of any conversion of Term SOFR Loans to Base Rate Loans, (ii)) four Business Days (or five  Business Days in the case of Special Notice Currency) before the date of the proposed Borrowing  if such Borrowing is requested in an Alternative Currency, and (iii) on the requested date of any  Borrowing of Base Rate Loans; provided, however, that if the Borrower wishes to request Term  SOFR Loans or Alternative Currency Term Rate Loans having an Interest Period other than one,  three or six months in duration as provided in the definition of “Interest Period,” the applicable  notice must be received by the Administrative Agent not later than 11:00 a.m. five Business Days  (or six Business Days in the case of a Special Notice Currency) prior to the requested date of such  Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt  notice to the Appropriate Lenders of such request and determine whether the requested Interest  Period is acceptable to all of them.  Not later than 11:00 a.m., three Business Days before the  requested date of such Borrowing, conversion or continuation, the Administrative Agent shall  notify the Borrower (which notice may be by telephone) whether or not the requested Interest  Period has been consented to by all the Lenders and the Administrative Agent.  Each Borrowing  of, conversion to or continuation of Term SOFR Loans or Alternative Currency Loans shall be in  a principal amount of the Dollar Equivalent of $1,000,000 or a whole multiple of the Dollar  Equivalent of $500,000 in excess thereof.  Except as provided in Sections 2.03(c) and 2.04(b), each  Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a  whole multiple of $100,000 in excess thereof.  Each Loan Notice shall specify (i) whether the  Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a  continuation of Term SOFR Loans or Alternative Currency Loans, (ii) the requested date of the  Borrowing,  conversion or continuation, as the case may be (which shall be a Business Day), (iii)  the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to  be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of  the Interest Period with respect thereto.  If the Borrower fails to specify a currency in a Loan Notice  requesting a Borrowing, then the Loans so requested shall be made in Dollars.  If the Borrower  fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice  requesting a conversion or continuation, then the applicable Loans shall be made as, or converted  to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of  the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans  or Alternative Currency Loans.  If the Borrower requests a Borrowing of, conversion to, or  continuation of Term SOFR Loans or Alternative Currency Loans in any such Loan Notice, but  fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one  month. Except as provided pursuant to Section 2.12(a) and 3.03, no Loan may be converted into or  continued as a Loan denominated in a different currency, but instead must be repaid in the original  currency of such Loan and reborrowed in the other currency.  





 






  47  (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly  notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no  timely notice of a conversion or continuation is provided by the Borrower, the Administrative  Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans  described in the preceding subsection.  In the case of a Borrowing, each Lender shall make the  amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative  Agent’s Office for the applicable currency not later than 1:00 p.m. in the case of Loans denominated  in Dollars, and not later than the Applicable Time in the case of an Loan denominated in an  Alternative Currency, in each case, on the Business Day specified in the applicable Loan Notice.   Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is  the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so  received available to the Borrower in like funds as received by the Administrative Agent either by  (i) crediting the account of the Borrower on the books of Bank of America with the amount of such  funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to  (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that  if, on the date the Loan Notice with respect to such Borrowing is given by the Borrower, there are  L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the  payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower  as provided above.  (c) Except as otherwise provided herein, a Term SOFR Loan or an Alternative  Currency Loan may be continued or converted only on the last day of an Interest Period for such  Term SOFR Loan or Alternative Currency Loan.  During the existence of a Default, no Loans may  be requested as, converted to or continued as Term SOFR Loans or Alternative Currency Loans  without the consent of the Required Lenders.  (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of  the interest rate applicable to any Interest Period for Term SOFR Loans or Alternative Currency  Loans upon determination of such interest rate.  (e) After giving effect to all Borrowings, all conversions of Loans from one Type to  the other, and all continuations of Loans as the same Type, there shall not be more than seven  Interest Periods in effect with respect to Loans.  (f) Notwithstanding anything to the contrary in this Agreement, any Lender may  exchange, continue or rollover all of the portion of its Loans in connection with any refinancing,  extension, loan modification or similar transaction permitted by the terms of this Agreement,  pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent,  and such Lender.  (g) With respect to SOFR or Term SOFR, the Administrative Agent will have the right  to make Conforming Changes from time to time and, notwithstanding anything to the contrary  herein or in any other Loan Document, any amendments implementing such Conforming Changes  will become effective without any further action or consent of any other party to this Agreement or  any other Loan Document; provided that, with respect to any such amendment effected, the  Administrative Agent shall post each such amendment implementing such Conforming Changes to  the Borrower and the Lenders reasonably promptly after such amendment becomes effective.  





 






  48  2.03 Letters of Credit.  (a) The Letter of Credit Commitment. Subject to the terms and conditions set forth  herein, in addition to the Loans provided for in Section 2.01, the Borrower may request that the  L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03,  issue, at any time and from time to time during the Availability Period, Letters of Credit  denominated in Dollars or in one or more Alternative Currencies for its own account or the account  of any of its Subsidiaries in such form as is acceptable to the L/C Issuer in its reasonable  determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving  Commitments.  (b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.   (i) To request the issuance of a Letter of Credit (or the amendment of the  terms and conditions, extension of the terms and conditions, extension of the expiration  date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the  Borrower shall deliver (or transmit by electronic communication, if arrangements for doing  so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent  not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the  Administrative Agent and the L/C Issuer may agree in a particular instance in their sole  discretion) prior to the proposed issuance date or date of amendment, as the case may be a  notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be  amended, extended, reinstated or renewed, and specifying the date of issuance,  amendment, extension, reinstatement or renewal (which shall be a Business Day), the date  on which such Letter of Credit is to expire (which shall comply with clause (d) of this  Section 2.03), the amount of such Letter of Credit, the name and address of the beneficiary  thereof, the purpose and nature of the requested Letter of Credit and such other information  as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If  requested by the L/C Issuer, the Borrower also shall submit a letter of credit application  and reimbursement agreement on the L/C Issuer’s standard form in connection with any  request for a Letter of Credit. In the event of any inconsistency between the terms and  conditions of this Agreement and the terms and conditions of any form of letter of credit  application and reimbursement agreement or other agreement submitted by the Borrower  to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the  terms and conditions of this Agreement shall control.  (ii) If the Borrower so requests in any applicable Letter of Credit Application  (or the amendment of an outstanding Letter of Credit), the L/C Issuer may, in its sole  discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,  an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of  Credit shall permit the L/C Issuer to prevent any such extension at least once in each  twelve-month period (commencing with the date of issuance of such Letter of Credit) by  giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension  Notice Date”) in each such twelve-month period to be agreed upon by the Borrower and  the  L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the  L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer  for any such extension. Once an Auto-Extension Letter of Credit has been issued, the  Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer  to permit the extension of such Letter of Credit at any time to an expiration date not later  than the date permitted pursuant to Section 2.03(d); provided, that the L/C Issuer shall not  (A) permit any such extension if (1) the L/C Issuer has determined that it would not be  





 






  49  permitted, or would have no obligation, at such time to issue such Letter of Credit in its  extended form under the terms hereof (except that the expiration date may be extended to  a date that is no more than one (1) year from the then-current expiration date) or (2) it has  received notice (which may be in writing or by telephone (if promptly confirmed in  writing)) on or before the day that is seven (7) Business Days before the Non-Extension  Notice Date from the Administrative Agent that the Required Revolving Lenders have  elected not to permit such extension or (B) be obligated to permit such extension if it has  received notice (which may be in writing or by telephone (if promptly confirmed in  writing)) on or before the day that is seven (7) Business Days before the Non-Extension  Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that  one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and  in each such case directing the L/C Issuer not to permit such extension.  (c) Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be  issued, amended, extended, reinstated or renewed only if (and upon issuance, amendment,  extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to  represent and warrant that), after giving effect to such issuance, amendment, extension,  reinstatement or renewal (w) the aggregate amount of the outstanding Letters of Credit issued by  the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not  exceed the L/C Sublimit, (y) the Revolving Exposure of any Lender shall not exceed its Revolving  Commitment and (z) the Total Revolving Exposure shall not exceed the total Revolving  Commitments.  (i) The L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing  the Letter of Credit, or any Law applicable to the L/C Issuer or any request or  directive (whether or not having the force of law) from any Governmental  Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the  L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of  Credit in particular or shall impose upon the L/C Issuer with respect to the Letter  of Credit any restriction, reserve or capital requirement (for which the L/C Issuer  is not otherwise compensated hereunder) not in effect on the Closing Date, or shall  impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not  applicable on the Closing Date and which the L/C Issuer in good faith deems  material to it;  (B) the issuance of such Letter of Credit would violate one or more  policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;  (D) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, the Letter of Credit is to be denominated in a currency other than  Dollars or an Alternative Currency;  (E) any Revolving Lender is at that time a Defaulting Lender, unless  the L/C Issuer has entered into arrangements, including the delivery of Cash  





 






  50  Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower  or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure  (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender  arising from either the Letter of Credit then proposed to be issued or that Letter of  Credit and all other L/C Obligations as to which the L/C Issuer has actual or  potential Fronting Exposure, as it may elect in its sole discretion; or  (F) the Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (ii) The L/C Issuer shall be under no obligation to amend any Letter of Credit  if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in  its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does  not accept the proposed amendment to the Letter of Credit.  (d) Expiration Date. Each Letter of Credit shall have a stated expiration date no later  than the earlier of (ix) the date twelve (12) months after the date of the issuance of such Letter of  Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by  amendment, twelve months after the then-current expiration date of such Letter of Credit) and  (x) the date that is five (5) Business Days prior to the Maturity Date.  (e) Participations.  (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit  increasing the amount or extending the expiration date thereof), and without any further  action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each  Revolving Lender, and each Revolving Lender hereby acquires from the L/C Issuer, a  participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the  aggregate amount available to be drawn under such Letter of Credit. Each Revolving  Lender acknowledges and agrees that its obligation to acquire participations pursuant to  this clause (e) in respect of Letters of Credit is absolute, unconditional and irrevocable and  shall not be affected by any circumstance whatsoever, including any amendment,  extension, reinstatement or renewal of any Letter of Credit or the occurrence and  continuance of a Default or reduction or termination of the Revolving Commitments.  (ii) In consideration and in furtherance of the foregoing, each Revolving  Lender hereby absolutely, unconditionally and irrevocably agrees to pay to the  Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage  of each L/C Disbursement made by the L/C Issuer not later than 1:00 p.m. on the Business  Day specified in the notice provided by the Administrative Agent to the Revolving Lenders  pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by the Borrower or  at any time after any reimbursement payment is required to be refunded to the Borrower  for any reason, including after the Maturity Date. Such payment shall be made without any  offset, abatement, withholding or reduction whatsoever. Each such payment shall be made  in the same manner as provided in Section 2.02 with respect to Loans made by such Lender  (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the  Revolving Lenders pursuant to this Section 2.03), and the Administrative Agent shall  promptly pay to the L/C Issuer the amounts so received by it from the Lenders. Promptly  following receipt by the Administrative Agent of any payment from the Borrower pursuant  to Section 2.03(f), the Administrative Agent shall distribute such payment to the L/C Issuer  or, to the extent that the Revolving Lenders have made payments pursuant to this clause  





 






  51  (e) to reimburse the L/C Issuer, then to such Lenders and the L/C Issuer as their interests  may appear. Any payment made by a Lender pursuant to this clause (e) to reimburse the  L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not relieve the  Borrower of its obligation to reimburse such L/C Disbursement.  (iii) Each Revolving Lender further acknowledges and agrees that its  participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s  Applicable Percentage of the aggregate amount available to be drawn under such Letter of  Credit at each time such Lender’s Commitment is amended pursuant to the operation of  Sections 2.16, as a result of an assignment in accordance with Section 11.06, or otherwise  pursuant to this Agreement.  (iv) If any Revolving Lender fails to make available to the Administrative  Agent for the account of the L/C Issuer any amount required to be paid by such Lender  pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other  provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  is immediately available to the L/C Issuer at a rate per annum equal to the greater of the  applicable Overnight Rate and a rate determined by the L/C Issuer in accordance with  banking industry rules on interbank compensation, plus any administrative, processing or  similar fees customarily charged by the L/C Issuer in connection with the foregoing. If  such Lender pays such amount (with interest and fees as aforesaid), the amount so paid  shall constitute such Lender’s Revolving Loan included in the relevant Revolving  Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Revolving Lender (through the  Administrative Agent) with respect to any amounts owing under this clause (e)(iv) shall be  conclusive absent manifest error.  (f) Reimbursement. If the L/C Issuer shall make any L/C Disbursement in respect of  a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect of such L/C Disbursement  by paying to the Administrative Agent an amount equal to such L/C Disbursement.  In the case of  a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the L/C  Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in  such notice that it will require reimbursement in Dollars, or (B) in the absence of any such  requirement for reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly  following receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in  Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit  denominated in an Alternative Currency, the L/C Issuer shall notify the Borrower of the Dollar  Equivalent of the amount of the drawing promptly following the determination thereof.  Not later  than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be  reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under  a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”),  the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal  to the amount of such drawing and the applicable currency (each such obligation of the Borrower,  a “Reimbursement Obligation”).  In the event that (C) a drawing denominated in an Alternative  Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(f) and  (D) the Dollar amount paid by the Borrower, whether on or after the Honor Date, shall not be  adequate on the date of that payment to purchase in accordance with normal banking procedures a  sum denominated in the Alternative Currency equal to the drawing, the Borrower agrees, as a  separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its  





 






  52  inability on that date to purchase the Alternative Currency in the full amount of the drawing.  If the  Borrower fails to timely reimburse the L/C Issuer on the Honor Date, the Administrative Agent  shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed  drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter  of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount  of such Revolving Lender’s Applicable Percentage thereof.  Promptly upon receipt of such notice,  each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the  Unreimbursed Amount pursuant to Section 2.03(e)(ii), subject to the amount of the unutilized  portion of the aggregate Revolving Commitments. Any notice given by the L/C Issuer or the  Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if immediately  confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the  conclusiveness or binding effect of such notice.  (g) Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements  as provided in clause (f) of this Section 2.03 shall be absolute, unconditional and irrevocable, and  shall be performed strictly in accordance with the terms of this Agreement under any and all  circumstances whatsoever and irrespective of:  (i) any lack of validity or enforceability of this Agreement, any other Loan  Document or any Letter of Credit, or any term or provision herein or therein;  (ii) the existence of any claim, counterclaim, setoff, defense or other right that  the Borrower or any Subsidiary may have at any time against any beneficiary or any  transferee of such Letter of Credit (or any Person for whom any such beneficiary or any  such transferee may be acting), the L/C Issuer or any other Person, whether in connection  with this Agreement, the transactions contemplated hereby or by such Letter of Credit or  any agreement or instrument relating thereto, or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement in such draft or other document being untrue or inaccurate in any respect; or  any loss or delay in the transmission or otherwise of any document required in order to  make a drawing under such Letter of Credit;  (iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s  protection and not the protection of the Borrower or any waiver by the L/C Issuer which  does not in fact materially prejudice the Borrower;  (v) honor of a demand for payment presented electronically even if such Letter  of Credit required that demand be in the form of a draft;  (vi) any payment made by the L/C Issuer in respect of an otherwise complying  item presented after the date specified as the expiration date of, or the date by which  documents must be received under such Letter of Credit if presentation after such date is  authorized by the UCC, the ISP or the UCP, as applicable;  (vii) any payment by the L/C Issuer under a Letter of Credit against  presentation of a draft or other document that does not comply strictly with the terms of  such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit  to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for  the benefit of creditors, liquidator, receiver or other representative of or successor to any  





 






  53  beneficiary or any transferee of such Letter of Credit, including any arising in connection  with any proceeding under any Debtor Relief Law;  (viii) any adverse change in the relevant exchange rates or in the availability of  the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant  currency markets generally; or  (ix) any other event or circumstance whatsoever, whether or not similar to any  of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal  or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations  hereunder.  (h) Examination. The Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance  with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C  Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C  Issuer and its correspondents unless such notice is given as aforesaid.  (i) Liability. None of the Administrative Agent, the Lenders, the L/C Issuer, or any of  their Related Parties shall have any liability or responsibility by reason of or in connection with the  issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make any  payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence),  or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or  other communication under or relating to any Letter of Credit (including any document required to  make a drawing thereunder), any error in interpretation of technical terms, any error in translation  or any consequence arising from causes beyond the control of the L/C Issuer; provided that the  foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent  of any direct damages (as opposed to consequential damages, claims in respect of which are hereby  waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that  are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other  documents presented under a Letter of Credit comply with the terms thereof. The parties hereto  expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C  Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed  to have exercised care in each such determination, and that:  (i) the L/C Issuer may replace a purportedly lost, stolen, or destroyed original  Letter of Credit or missing amendment thereto with a certified true copy marked as such  or waive a requirement for its presentation;  (ii) the L/C Issuer may accept documents that appear on their face to be in  substantial compliance with the terms of a Letter of Credit without responsibility for further  investigation, regardless of any notice or information to the contrary, and may make  payment upon presentation of documents that appear on their face to be in substantial  compliance with the terms of such Letter of Credit and without regard to any non- documentary condition in such Letter of Credit;  (iii) the L/C Issuer shall have the right, in its sole discretion, to decline to accept  such documents and to make such payment if such documents are not in strict compliance  with the terms of such Letter of Credit; and  





 






  54  (iv) this sentence shall establish the standard of care to be exercised by the L/C  Issuer when determining whether drafts and other documents presented under a Letter of  Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent  permitted by Applicable Law, any standard of care inconsistent with the foregoing).  Without limiting the foregoing, none of the Administrative Agent, the Lenders, the L/C  Issuer, or any of their Related Parties shall have any liability or responsibility by reason of  (A) any presentation that includes forged or fraudulent documents or that is otherwise  affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person,  (B) the L/C Issuer declining to take-up documents and make payment, (C) against  documents that are fraudulent, forged, or for other reasons by which that it is entitled not  to honor, (D) following a Borrower’s waiver of discrepancies with respect to such  documents or request for honor of such documents or (E) the L/C Issuer retaining proceeds  of a Letter of Credit based on an apparently applicable attachment order, blocking  regulation, or third-party claim notified to the L/C Issuer.  (j) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer  and the Borrower when a Letter of Credit is issued by it (including any such agreement applicable  to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,  and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the  foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights  and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer  required or permitted under any law, order, or practice that is required or permitted to be applied to  any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the  L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in  the decisions, opinions, practice statements, or official commentary of the ICC Banking  Commission, the Bankers Association for Finance and Trade – International Financial Services  Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or  not any Letter of Credit chooses such law or practice.  (k) Benefits. The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have  all of the benefits and immunities (i) provided to the Administrative Agent in Article IX with  respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of  Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters  of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C  Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect  to the L/C Issuer.  (l) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender in accordance with its Applicable Revolving Percentage a Letter  of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate  times the daily amount available to be drawn under such Letter of Credit. For purposes of  computing the daily amount available to be drawn under any Letter of Credit, the amount of such  Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be  (i) payable in arrears on the first Business Day following the end of each March, June, September  and December, commencing with the first such date to occur after the issuance of such Letter of  Credit  and (ii) accrued through and including the last day of each calendar quarter in arrears. If  there is any change in the Applicable Rate during any quarter, the daily amount available to be  drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate  separately for each period during such quarter that such Applicable Rate was in effect.  





 






  55  Notwithstanding anything to the contrary contained herein, upon the request of the Required  Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the  Default Rate.  (m) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The  Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each  Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the  Borrower and the L/C Issuer, 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 no later than  the tenth Business Day after the end of each March, June, September and December in the most  recently- ended quarterly period (or portion thereof, in the case of the first payment), commencing  with the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date  and thereafter on demand. For purposes of computing the daily amount available to be drawn under  any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with  Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in  Dollars the customary issuance, presentation, amendment and other processing fees, and other  standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in  effect. Such customary fees and standard costs and charges are due and payable on demand and are  nonrefundable.  (n) Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the  time allowed by Applicable Laws or the specific terms of the Letter of Credit following its receipt  thereof, examine all documents purporting to represent a demand for payment under such Letter of  Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and  the Borrower in writing of such demand for payment if the L/C Issuer has made or will make an  L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall  not relieve the Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect  to any such L/C Disbursement.  (o) Interim Interest. If the L/C Issuer for any standby Letter of Credit shall make any  L/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the  date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day  from and including the date such L/C Disbursement is made to but excluding the date that the  Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to Base Rate  Loans; provided that if the Borrower fails to reimburse such L/C Disbursement when due pursuant  to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest accrued pursuant to this  clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the date  of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer  shall be for account of such Lender to the extent of such payment.  (p) Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by  written agreement between the Borrower, the Administrative Agent, the replaced L/C Issuer and  the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such  replacement of the L/C Issuer. At the time any such replacement shall become effective, the  Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to  Section 2.03(l). From and after the effective date of any such replacement, (i) the successor L/C  Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect  to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer”  shall be deemed to include such successor or any previous L/C Issuer, or such successor and all  previous L/C Issuer, as the context shall require. After the replacement of the L/C Issuer hereunder,  the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and  





 






  56  obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it  prior to such replacement, but shall not be required to issue additional Letters of Credit.  (q) Cash Collateralization.  (i) If any Event of Default shall occur and be continuing, on the Business Day  that the Borrower receives notice from the Administrative Agent or the Required  Revolving Lenders demanding the deposit of Cash Collateral pursuant to this clause (q),  the Borrower shall immediately deposit into an account established and maintained on the  books and records of the Administrative Agent (the “Collateral Account”) an amount in  cash equal to the Minimum Collateral Amount as of such date plus any accrued and unpaid  interest thereon, provided that the obligation to deposit such Cash Collateral shall become  effective immediately, and such deposit shall become immediately due and payable,  without demand or other notice of any kind, upon the occurrence of any Event of Default  with respect to the Borrower described in clause (g) or clause (h) of Section 8.01. Such  deposit shall be held by the Administrative Agent as collateral for the payment and  performance of the obligations of the Borrower under this Agreement. In addition, and  without limiting the foregoing or clause (d) of this Section 2.03, if any L/C Obligations  remain outstanding after the expiration date specified in said clause (d), the Borrower shall  immediately deposit into the Collateral Account an amount in cash equal to the Minimum  Collateral Amount as of such date plus any accrued and unpaid interest thereon.  (ii) The Administrative Agent shall have exclusive dominion and control,  including the exclusive right of withdrawal, over the Collateral Account. Other than any  interest earned on the investment of such deposits, which investments shall be made at the  option and sole discretion of the Administrative Agent and at the Borrower’s risk and  expense, such deposits shall not bear interest. Interest or profits, if any, on such investments  shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be  applied by the Administrative Agent to reimburse the L/C Issuer for L/C Disbursements  for which it has not been reimbursed, together with related fees, costs, and customary  processing charges, and, to the extent not so applied, shall be held for the satisfaction of  the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if  the maturity of the Loans has been accelerated, be applied to satisfy other obligations of  the Borrower under this Agreement. If the Borrower is required to provide an amount of  Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount  (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3)  Business Days after all Events of Default have been cured or waived.  (r) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the L/C Issuer  hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been  issues solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses  that might otherwise be available to it as a guarantor or surety of any or all of the obligations of  such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the  issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower,  and that the Borrower’s business derives substantial benefits from the businesses of such  Subsidiaries.  





 






  57  (s) Confirmation of Existing Letters of Credit Issued Under Prior Credit Agreement.   All Existing Letters of Credit (including those issued under the Prior Credit Agreement)  outstanding on the Closing Date shall be deemed to be Letters of Credit issued hereunder.  (t) 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.  2.04 Swingline Loans.   (a) The Swingline. Subject to the terms and conditions set forth herein, the Swingline  Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in  its sole discretion make loans to the Borrower (each such loan, a “Swingline Loan”). Each such  Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower,  in Dollars, from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided,  however, that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings  shall not exceed the Revolving Facility at such time, (B) the Revolving Exposure of any Revolving  Lender at such time shall not exceed such Lender’s Revolving Commitment and (C) the aggregate  amount of all Swingline Loans outstanding shall not exceed the Swingline Commitment of the  Swingline Lender, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance  any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation  to make any Swingline Loan if it shall determine (which determination shall be conclusive and  binding absent manifest error) that it has, or by such Credit Extension may have, Fronting  Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the  Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this  Section 2.04. Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the  Applicable Rate. Immediately upon the making of a Swingline Loan, each Revolving Lender shall  be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline  Lender a risk participation in such Swingline Loan in an amount equal to the product of such  Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.  (b) Borrowing Procedures. Each Swingline Borrowing shall be made upon the  Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may  be given by: (ii) telephone or (iii) a Swingline Loan Notice; provided that any telephonic notice  must be confirmed immediately by delivery to the Swingline Lender and the Administrative Agent  of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the Swingline  Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and  shall specify (A) the amount to be borrowed, which shall be in an aggregate amount at least equal  to $100,000 or any greater multiple of $100,000, and (B) the requested date of the Borrowing  (which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline  Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in  writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not,  the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the  contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from  the Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on  the date of the proposed Swingline Borrowing (1) directing the Swingline Lender not to make such  Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of  Section 2.04(a), or (2) that one or more of the applicable conditions specified in Article IV is not  then satisfied, then, subject to the terms and conditions hereof, the  Swingline Lender will, not later  than 3:00 p.m. on the borrowing date specified in such Swingline Loan Notice, make the amount  





 






  58  of its Swingline Loan available to the Borrower at its office by crediting the account of the  Borrower on the books of the Swingline Lender in Same Day Funds.  (c) Refinancing of Swingline Loans.  (i) The Swingline Lender at any time in its sole and absolute discretion may  request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline  Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in  an amount equal to such Lender’s Applicable Revolving Percentage of the amount of  Swingline Loans then outstanding. Such request shall be made in writing (which written  request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with  the requirements of Section 2.02, without regard to the minimum and multiples specified  therein for the principal amount of Base Rate Loans, but subject to the unutilized portion  of the Revolving Facility and the conditions set forth in Section 4.02. The Swingline  Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after  delivering such notice to the Administrative Agent. Each Revolving Lender shall make an  amount equal to its Applicable Revolving Percentage of the amount specified in such Loan  Notice available to the Administrative Agent in immediately available funds (and the  Administrative Agent may apply Cash Collateral available with respect to the applicable  Swingline Loan) for the account of the Swingline Lender at the Administrative Agent’s  Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon,  subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall  be deemed to have made a Base Rate Loan to the Borrower in such amount. The  Administrative Agent shall remit the funds so received to the Swingline Lender.  (ii) Notwithstanding anything to the contrary in the foregoing, if for any  reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in  accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the  conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the  Swingline Lender as set forth herein shall be deemed to be a request by the Swingline  Lender that each of the Revolving Lenders fund its risk participation in the relevant  Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the  account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment  in respect of such participation.  (iii) If any Revolving Lender fails to make available to the Administrative  Agent for the account of the Swingline Lender any amount required to be paid by such  Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in  Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  is immediately available to the Swingline Lender at a rate per annum equal to the applicable  Overnight Rate from time to time in effect, plus any administrative, processing or similar  fees customarily charged by the Swingline Lender in connection with the foregoing. If such  Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall  constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or  funded participation in the relevant Swingline Loan, as the case may be. A certificate of  the Swingline Lender submitted to any Lender (through the Administrative Agent) with  respect to any amounts owing under this clause (c)(iii) shall be conclusive absent manifest  error.  





 






  59  (iv) Each Revolving Lender’s obligation to make Revolving Loans or to  purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance,  including (A) any setoff, counterclaim, recoupment, defense or other right which such  Lender may have against the Swingline Lender, the Borrower or any other Person for any  reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other  occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to  this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery  by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or  otherwise impair the obligation of the Borrower to repay Swingline Loans, together with  interest as provided herein.  (d) Repayment of Participations.  (i) At any time after any Revolving Lender has purchased and funded a risk  participation in a Swingline Loan, if the Swingline Lender receives any payment on  account of such Swingline Loan, the Swingline Lender will distribute to such Revolving  Lender its Applicable Revolving Percentage thereof in the same funds as those received by  the Swingline Lender.  (ii) If any payment received by the Swingline Lender in respect of principal  or interest on any Swingline Loan is required to be returned by the Swingline Lender under  any of the circumstances described in Section 11.05 (including pursuant to any settlement  entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to  the Swingline Lender its Applicable Revolving Percentage thereof on demand of the  Administrative Agent, plus interest thereon from the date of such demand to the date such  amount is returned, at a rate per annum equal to the applicable Overnight Rate. The  Administrative Agent will make such demand upon the request of the Swingline Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the  Obligations and the termination of this Agreement.  (e) Interest for Account of Swingline Lender. The Swingline Lender shall be  responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving  Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such  Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect  of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.  (f) Payments Directly to Swingline Lender. The Borrower shall make all payments of  principal and interest in respect of the Swingline Loans directly to the Swingline Lender.  2.05 Prepayments.  (a) Optional.  (i) The Borrower may, upon notice to the Administrative Agent pursuant to  delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from  time to time voluntarily prepay Term Loans and Revolving Loans in whole or in part  without premium or penalty; provided that, unless otherwise agreed by the Administrative  Agent, (i) such notice must be received by the Administrative Agent not later than 11:00  a.m. (A) three (3) Business Days prior to any date of prepayment of Term SOFR Loans  





 






  60  denominated in Dollars, (B) four (4) Business Days prior to any date of prepayment for  Alternative Currency Loans (five Business Days in the case of prepayment of Loans  denominated in Special Notice Currencies) and (C) on the date of prepayment of Base Rate  Loans; (ii) any prepayment of Term SOFR Loans or Alternative Currency Loans shall be  in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and  (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a  whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal  amount thereof then outstanding.  Each such notice shall specify the date, the currency and  amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR  Loans or Alternative Currency Loans are to be prepaid, the Interest Period(s) of such  Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each  such notice, and of the amount of such Lender’s Applicable Percentage of such  prepayment.  If such notice is given by the Borrower, the Borrower shall make such  prepayment and the payment amount specified in such notice shall be due and payable on  the date specified therein.  Any prepayment of any Term SOFR Loan or Alternative  Currency Term Rate Loan shall be accompanied by all accrued interest on the amount  prepaid, together with any additional amounts required pursuant to Section 3.05.  Each  prepayment of the outstanding Term A Loans pursuant to this Section 2.05(a) shall be  applied to the principal repayment installments thereof in inverse order of maturity.   Subject to Section 2.15, each such prepayment shall be applied to the Loans of the Lenders  in accordance with their respective Applicable Percentages in respect of each of the  Relevant Facilities.  (ii) The Borrower may, upon notice to the Swingline Lender pursuant to  delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the  Administrative Agent), at any time or from time to time, voluntarily prepay Swingline  Loans in whole or in part without premium or penalty; provided that, unless otherwise  agreed by the Swingline Lender, (A) such notice must be received by the  Swingline Lender  and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and  (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole  multiple of $100,000 in excess hereof (or, if less, the entire principal thereof then  outstanding). Each such notice shall specify the date and amount of such prepayment. If  such notice is given by the Borrower, the Borrower shall make such prepayment and the  payment amount specified in such notice shall be due and payable on the date specified  therein. Any prepayment of principal shall be accompanied by all accrued interest on the  amount prepaid, together with any additional amounts required pursuant to Section 3.05.  (b) Mandatory Prepayments.  The Borrower shall be obligated to, and shall, make  prepayments of the Loans hereunder as follows:  (i) Incurrence of Debt.  Without limiting the obligation of the Borrower to  obtain the consent of the Required Lenders to any incurrence of Indebtedness not otherwise  permitted hereunder, the Borrower agrees, on the closing of any incurrence of Indebtedness  by any Loan Party (other than Indebtedness permitted pursuant to Section 7.01) to prepay  the Loans hereunder (and provide Cash Collateral for L/C Obligations, if applicable, as  specified in Section 2.05(c) and Section 2.14), upon the date of such incurrence of  Indebtedness, in an aggregate amount equal to 100% of the amount of the Net Cash  Payments from such incurrence of Indebtedness received by any Loan Party, such  prepayment to be effected in each case in the manner and to the extent specified in  Section 2.05(c) below.  





 






  61  (ii) Sale of Assets.  Without limiting the obligation of the Borrower to obtain  the consent of the Required Lenders to any Disposition not otherwise permitted hereunder,  the Borrower agrees, on or prior to the occurrence of any Disposition by any Loan Party,  the Net Cash Proceeds from which would exceed $5,000,000 individually or $10,000,000  in the aggregate after the Closing Date (as used in this section, the “Max NCPs”) to deliver  to the Administrative Agent a statement certified by a Responsible Officer of the Borrower,  in form and detail reasonably satisfactory to the Administrative Agent, of the estimated  amount of the Net Cash Payments of such Disposition that will (on the date of such  Disposition) be received by any Loan Party in cash, indicating on such certificate, whether  the Borrower intends to reinvest such Net Cash Payments (to the extent Net Cash Payments  from Dispositions do not exceed the Max NCPs) or will be prepaying the Loans, as  hereinafter provided, and the Borrower will be obligated to either (A) cause the applicable  Loan Party to reinvest such Net Cash Payments (to the extent Net Cash Payments from  Dispositions do not exceed the Max NCPs) within 180 days after receipt (or, if within such  180 day period the Borrower or any Loan Party enters into contracts related to the  reinvestment of such Net Cash Payments, such longer period not to exceed 365 days after  the original date of receipt of such Net Cash Payments as is contemplated by such  contracts) into replacement assets or the repair of existing assets or other assets useful to  the business of the Borrower or (B) to the extent such Net Cash Payments exceed the Max  NCPs, prepay the Loans hereunder (and provide Cash Collateral for L/C Obligations, if  applicable, as specified in Section 2.05(c) and Section 2.14 in an amount equal to 102% of  such L/C Obligations), as follows:  (x) upon the date of such Disposition, or on the date (the  “Reinvestment Date”) which is 180 days after such date (or such longer period not  to exceed 365 days as contemplated by contracts related to the reinvestment of  such Net Cash Payments) if the Borrower had indicated on the certificate delivered  as hereinabove required that it intended to reinvest the Net Cash Payments of such  Disposition, in an aggregate amount equal to 100% of the amount of such Net Cash  Payments, to the extent received by any Loan Party in cash on the date of such  Disposition or, if applicable, the Reinvestment Date to the extent of any Net Cash  Payments not so reinvested; and  (y) thereafter, quarterly, on the date of the delivery by the Borrower  to the Administrative Agent pursuant to Section 6.01 of the financial statements  for any quarterly fiscal period or fiscal year, to the extent any Loan Party shall  receive Net Cash Payments during the quarterly fiscal period ending on the date of  such financial statements in cash under deferred payment arrangements or  Investments entered into or received in connection with any Disposition, an  amount equal to (A) 100% of the aggregate amount of such Net Cash Payments  minus (B) any transaction expenses associated with Dispositions and not  previously deducted in the determination of Net Cash Payments plus (or minus, as  the case may be) (C) any other adjustment received or paid by any Loan Party  pursuant to the respective agreements giving rise to Dispositions and not  previously taken into account in the determination of the Net Cash Payments.  Prepayments of Loans (and Cash Collateral for L/C Obligations) shall be effected in each case in the manner  and to the extent specified in paragraph (c) of this Section 2.05; provided that if at the time of any such  Disposition a Default shall have occurred and be continuing, the Loan Parties shall not have the right to  reinvest any Net Cash Payments and shall instead prepay the Loans by 100% of the amount of Net Cash  Payments received from such Disposition.  





 






  62  (iii) Proceeds of Casualty Events.  Upon the date 180 days following the receipt  by any Loan Party (or, if within such 180 day period any Loan Party enters into contracts  related to the reinvestment of such Net Cash Payments, such longer period not to exceed  365 days after the original date of receipt of such Net Cash Payments as is contemplated  by such contracts) of the proceeds of insurance, condemnation award or other  compensation in respect of any Casualty Event affecting any property of any Loan Party  (or upon such earlier date as such Loan Party, as the case may be, shall have determined  not to repair or replace the property affected by such Casualty Event), except to the extent  Net Cash Payments from Casualty Events do not exceed $2,500,000 in the aggregate after  the Closing Date, the Borrower shall prepay the Loans (and provide Cash Collateral for  L/C Obligations as specified in Section 2.14), in an aggregate amount, if any, equal to  100% of the Net Cash Payments from such Casualty Event not theretofore applied or  committed to be applied to the repair or replacement of such property (it being understood  that if Net Cash Payments committed to be applied are not in fact applied within 180 days  after receipt thereof (or such longer period not to exceed 365 days as contemplated by  contracts related to the reinvestment of such Net Cash Payments), then such Net Cash  Payments shall be applied to the prepayment of Loans and cover for L/C Obligations as  provided in this clause (iii) at the expiration of such 180 day or 365 day period, as  applicable), such prepayment to be effected in each case in the manner and to the extent  specified in paragraph (c) of this Section 2.05; provided that if an Event of Default has  occurred and is continuing, no Net Cash Payments from any Casualty Event may be applied  to the repair or replacement of any property and such Net Cash Payments shall be applied  instead to prepay the Loans by 100% of the amount of Net Cash Payments received from  such Casualty Event.  (iv) Revolving Outstandings. If for any reason the Total Revolving  Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall  immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings (together  with all accrued but unpaid interest thereon) and/or Cash Collateralize the L/C Obligations  in an aggregate amount equal to such excess; provided, however, that the Borrower shall  not be required to Cash Collateralize the L/C Obligations pursuant to this Section  2.05(b)(iv) unless, after the prepayment of the Revolving Loans and Swingline Loans, the  Total Revolving Outstandings exceed the Revolving Facility at such time.  (v) Alternative Currencies.  If the Administrative Agent notifies the Borrower  at any time that the Revolving Credit Exposure of all Revolving Loans and L/C Obligations  denominated in Alternative Currencies at such time exceeds the Dollar Equivalent of the  Alternative Currency Sublimit then in effect, then, within two (2) Business Days after  receipt of such notice, the Borrower shall prepay Revolving Loans and/or Cash  Collateralize Letters of Credit in an aggregate amount sufficient to reduce such Revolving  Credit Exposure as of such date of payment to an amount not to exceed 100% of the  Alternative Currency Sublimit then in effect.  (c) Application.  (i) In the event of any mandatory prepayment of Loans pursuant to  subsection (b) of this Section 2.05, the proceeds shall be applied as follows:  (A) first, if such prepayment pursuant to clauses (i) through (iii) of  Section 2.05(b) is made at a time when any part of the Delayed Draw Term A Loan  remains outstanding, such prepayment shall be applied to the repayment of the  





 






  63  Delayed Draw Term A Loan to be shared and applied ratably among the Term  Lenders in proportion to the Outstanding Amount of their Delayed Draw Term A  Loans;  (B) second, if such prepayment pursuant to clauses (i) through (iii) of  Section 2.05 is made at a time when any part of the Term A Loan remains  outstanding, such prepayment shall be applied to the repayment of the Term A  Loan to be shared and applied ratably among the Term Lenders in proportion to  the Outstanding Amount of their Term A Loans, in inverse order of maturity;  (C) third, to the extent that a repayment of Swingline Loans shall at  such time be required pursuant to Section 2.05(a) or 2.05(b)(iv), to the repayment  of Swingline Loans, but only to such extent (with no reduction in the  Commitments);  (D) fourth, to the extent that total Revolving Credit Exposure shall at  such time exceed the total Revolving Commitments or the Revolving Credit  Exposure of all Revolving Loans and L/C Obligations denominated in Alternative  Currencies at such time exceeds the Dollar Equivalent of the Alternative Currency  Sublimit at such time, such prepayment shall be applied to the repayment of  Revolving Loans to be shared and applied ratably among the Revolving Lenders  in proportion to their respective Revolving Commitments (with no reduction in the  Commitments); and  (E) fifth, the amount of any mandatory prepayment shall be applied to  repay Revolving Loans, and, thereafter, to provide Cash Collateral for L/C  Obligations as specified in Section 2.14 in an amount equal to 102% of such L/C  Obligations (with no reduction in the Commitments).  (ii) Within the parameters of the applications set forth above, prepayments  pursuant to this Section 2.05(c) shall be applied first to Base Rate Loans and then to Term  SOFR Loans and Alternative Currency Loans in direct order of Interest Period maturities.   All prepayments under this Section 2.05(c) shall be subject to Section 3.05, but otherwise  without premium or penalty, and shall be accompanied by interest on the principal amount  prepaid through the date of prepayment.  2.06 Termination or Reduction of Commitments.  (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate  the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to  time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline  Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later  than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such  partial reduction of the Revolving Facility shall be in an aggregate amount of $5,000,000 or any  whole multiple of $1,000,000 in excess thereof, (iii) any such partial reduction of the Swingline  Sublimit shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000 in excess  thereof, and (iv) the Borrower shall not terminate or reduce (A) the Revolving Facility if, after  giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving  Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving  effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder  would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if, after giving effect  





 






  64  thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans  would exceed the Letter of Credit Sublimit. In addition, during the Availability Period in respect  of the Delayed Draw Term A Facility, the Borrower may, upon notice to the Administrative Agent  as set forth above, from time to time terminate (in whole or in part) the unused portion of the  aggregate Term Commitments under the Delayed Draw Term A Facility.  (b) Mandatory.  (i) The aggregate Term Commitments for the Term A Facility shall be  automatically and permanently reduced to zero on the date of the Term Borrowing (after  giving effect to any Term Borrowing made on such day), and the aggregate Term  Commitments for the Delayed Draw Term A Facility shall be automatically and  permanently reduced to zero on the last day of the Availability Period for the Delayed Draw  Term A Facility (after giving effect to any Term Borrowing made on such day).  (ii) If after giving effect to any reduction or termination of Revolving  Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swingline  Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the  Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of  such excess.  (c) Application of Commitment Reductions; Payment of Fees.  (i) The Administrative Agent will promptly notify the Lenders of any  termination or reduction of the Letter of Credit Sublimit, Swingline Sublimit or the  Revolving Commitment under this Section 2.06. Upon any reduction of the Revolving  Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by  such Lender’s Applicable Revolving Percentage of the amount of such reduction. All fees  in respect of the Revolving Facility accrued until the effective date of any termination of  the Revolving Facility shall be paid on the effective date of such termination.  (ii) The Administrative Agent will promptly notify the Lenders of any  termination or reduction of the unused portion of the aggregate Term Commitment under  Delayed Draw Term A Facility under this Section 2.06. Upon any reduction of the unused  portion of the aggregate Term Commitments under the Delayed Draw Term A Facility, the  Term Commitment of each Term Lender under the Delayed Draw Term A Facility shall  be reduced by such Lender’s ratable portion of the amount of such reduction. All fees in  respect of the Term Facility accrued until the effective date of any termination of the Term  Facility shall be paid on the effective date of such termination.  2.07 Repayment of Loans.  (a) Term Loans. The Borrower shall repay to the Term Lenders the aggregate principal  amount of all Term A Loans outstanding in quarterly principal installments on the last Business  Day of each quarter commencing March 31, 2024, in the amount of $1,250,000, and shall pay the  aggregate principal amount of all Delayed Draw Term A Loans in full on September 4, 2023 (which  amounts shall be reduced as a result of the application of prepayments in accordance with the order  of priority set forth in Section 2.05), unless accelerated sooner pursuant to Section 8.02; provided,  however, that (i) the final principal repayment installment of the Term A Loans shall be repaid on  the Maturity Date for the Term A Facility and in any event shall be in an amount equal to the  aggregate principal amount of all Term A Loans outstanding on such date, (ii) if any principal  





 






  65  repayment installment to be made by the Borrower (other than principal repayment installments on  Term SOFR Loans) shall come due on a day other than a Business Day, such principal repayment  installment shall be due on the next succeeding Business Day, and such extension of time shall be  reflected in computing interest or fees, as the case may be and (iii) if any principal repayment  installment to be made by the Borrower on a Term SOFR Loan shall come due on a day other than  a Business Day, such principal repayment installment shall be extended to the next succeeding  Business Day unless the result of such extension would be to extend such principal repayment  installment into another calendar month, in which event such principal repayment installment shall  be due on the immediately preceding Business Day.  (b) Revolving Loans. The Borrower shall repay to the Revolving Lenders on the  Maturity Date for the Revolving Facility the aggregate principal amount of all Revolving Loans  outstanding on such date.  (c) Swingline Loans. The Borrower shall repay each Swingline Loan on the earlier to  occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date for  the Revolving Facility.  2.08 Interest and Default Rate.  (a) Interest. Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan  under a Facility shall bear interest on the outstanding principal amount thereof for each Interest  Period from the applicable Borrowing date at a rate per annum equal to the Term SOFR for such  Interest Period plus the Applicable Rate for such Facility; (ii) each Base Rate Loan shall bear  interest on the outstanding principal amount thereof from the applicable borrowing date at a rate  per annum equal to the Base Rate plus the Applicable Rate; (iii) each Alternative Currency Daily  Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable  borrowing date at a rate per annum equal to the Alternative Currency Daily Rate plus the Applicable  Rate; (iv) each Alternative Currency Term Rate Loan shall bear interest on the outstanding  principal amount thereof for each Interest Period at a rate per annum equal to the Alternative  Currency Term Rate for such Interest Period plus the Applicable Rate; and (v) each Swingline Loan  shall bear interest on the outstanding principal amount thereof from the applicable borrowing date  at a rate per annum equal to the Base Rate plus the Applicable Rate. To the extent that any  calculation of interest or any fee required to be paid under this Agreement shall be based on (or  result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of  this Agreement.  (b) Default Rate.  (i) If any amount of principal of any Loan is not paid when due (without  regard to any applicable grace periods), 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.  (ii) If any amount (other than principal of any Loan) payable by the Borrower  under any Loan Document is not paid when due (without regard to any applicable grace  periods), whether at stated maturity, by acceleration or otherwise, then upon 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.  





 






  66  (iii) Upon the request of the Required Lenders, while any Event of Default  exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrower shall pay  interest on the principal amount of all outstanding Obligations (including Letter of Credit  Fees) hereunder at a fluctuating interest rate per annum at all times equal to the Default  Rate to the fullest extent permitted by Applicable Laws.  (iv) Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  (c) Interest Payments. Interest on each Loan shall be due and payable in arrears on  each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.  2.09 Fees.  In addition to certain fees described in clauses (l), (m), (o) and (p) of Section 2.03:  (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a  commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving  Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the  Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the  avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or  considered usage of the Revolving Facility for purposes of determining the commitment fee. In  addition, the Borrower shall pay to the Administrative Agent for the account of each Term Lender  in accordance with its Applicable Percentage of the Delayed Draw Term A Facility, a commitment  fee equal to the Applicable Rate times the actual daily amount by which the aggregate of the Term  Commitments under the Delayed Draw Term A Facility exceed the Outstanding Amount of  Delayed Draw Term A Loans, subject to adjustment as provided in Section 2.15. The commitment  fee shall accrue at all times during the relevant Availability Period, including at any time during  which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly  in arrears on the last Business Day of each March, June, September and December, commencing  with the first such date to occur after the Closing Date, and, in the case of the commitment fee with  respect to the Revolving Facility, on the last day of the Availability Period for the Revolving  Facility or, in the case of the commitment fee with respect to the Delayed Draw Term A Facility,  on the last day of the Availability Period for the Delayed Draw Term A Facility. The commitment  fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during  any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate  separately for each period during such quarter that such Applicable Rate was in effect.  (b) Other Fees.  (i) The Borrower shall pay to the Administrative Agent and the Arranger for  its own account fees in the amounts and at the times specified in the Fee Letter. Such fees  shall be fully earned when paid and shall not be refundable for any reason whatsoever.  (ii) The Borrower shall pay to the Lenders such fees as shall have been  separately agreed upon in writing in the amounts and at the times so specified. Such fees  shall be fully earned when paid and shall not be refundable for any reason whatsoever.  





 






  67  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) Computation of Interest and Fees. All computations of interest for Base Rate Loans  (including Base Rate Loans determined by reference to the Term SOFR) shall be made on the basis  of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations  of fees and interest shall be made on the basis of a three hundred sixty (360) day year and actual  days elapsed (which results in more fees or interest, as applicable, being paid than if computed on  the basis of a 365 day year), or in the case of interest in respect of Revolving Loans denominated  in Alternative Currencies as to which market practice differs from the foregoing, in accordance  with such market practice. Interest shall accrue on each Loan for the day on which the Loan is  made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such  portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,  subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative  Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent  manifest error.  (b) Financial Statement Adjustments or Restatements. If, as a result of any restatement  of or other adjustment to the financial statements of the Borrower and its Subsidiaries or for any  other reason, the Borrower or the Lenders determine that (i) the Core Leverage Ratio as calculated  by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Core  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 applicable Lenders or the L/C Issuer, as the case may be, 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 of the United States, automatically and  without further action by the Administrative Agent, any Lender or the L/C Issuer), 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 clause (b) shall not limit the rights  of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any provision  of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article  VIII. The Borrower’s obligations under this clause (b) shall survive the termination of the  Aggregate Commitments and the repayment of all other Obligations hereunder.  2.11 Evidence of Debt.  (a) Maintenance of Accounts. The Credit Extensions made by each Lender shall be  evidenced by one or more accounts or records maintained by such Lender in the ordinary course of  business. The Administrative Agent shall maintain the Register in accordance with Section  11.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest  error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest  and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or  otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to  the Obligations. In the event of any conflict between the accounts and records maintained by any  Lender and the Register, the Register shall control in the absence of manifest error. Upon the  request of any Lender made through the Administrative Agent, the Borrower shall execute and  deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such  Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its  Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and  payments with respect thereto.  





 






  68  (b) Maintenance of Records. In addition to the accounts and records referred to in  Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its  usual practice accounts or records evidencing the purchases and sales by such Lender of  participations in Letters of Credit and Swingline Loans. In the event of any conflict between the  accounts and records maintained by the Administrative Agent and the accounts and records of any  Lender in respect of such matters, the accounts and records of the Administrative Agent shall  control in the absence of manifest error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General. All payments to be made by the Borrower shall be made free and clear of  and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as  otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the  Administrative Agent, for the account of the respective Lenders to which such payment is owed, at  the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. (or  the Applicable Time specified by the Administrative Agent with respect to Loans denominated in  an Alternative Currency) on the date specified herein. If, for any reason, the Borrower is prohibited  by any Law from making any required payment hereunder in an Alternative Currency, the Borrower  shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment  amount. The Administrative Agent will promptly distribute to each Lender its Applicable  Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such  payment in like funds as received by wire transfer to such Lender’s Lending Office. Except as  otherwise expressly provided herein, all payments by the Borrower hereunder with respect to  principal and interest on Loans denominated in an Alternative Currency shall be made to the  Administrative Agent, for the account of the respective Lenders to which such payment is owed, at  the Administrative Agent’s office in such Alternative Currency and in Same Day Funds not later  than the Applicable Time specified by the Administrative Agent on the dates specified herein.  Without limiting the generality of the foregoing, the Administrative Agent may require that any  payments due under this Agreement be made in the United States.  If, for any reason, the Borrower  is prohibited by any Law from making any required payment hereunder in an Alternative Currency,  such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative  Currency payment amount.  All payments received by the Administrative Agent after (i) 2:00 p.m.,  in the case of payments in Dollars, or (ii) the Applicable Time specified by the Administrative  Agent, in the case of payments in an Alternative Currency, shall, in each case, be deemed received  on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any  payment to be made by the Borrower shall come due on a day other than a Business Day, payment  shall be made on the next following Business Day, and such extension of time shall be reflected in  computing interest or fees, as the case may be. On each date when the payment of any principal,  interest or fees are due hereunder or under any Loan Document, the Borrower agrees to maintain  on deposit in an ordinary checking account maintained by the Borrower with Administrative Agent  (as such account shall be designated by the Borrower in a written notice to Agent from time to time,  the “Borrower Account”) an amount sufficient to pay such principal, interest or fees in full on such  date. The Borrower hereby authorizes the Administrative Agent to deduct automatically all  principal, interest or fees when due hereunder or under any Note from the Borrower Account, and  if and to the extent any payment of principal, interest or fees under this Agreement or any Loan  Document is not made when due to deduct any such amount from any or all of the accounts of the  Borrower maintained at the Administrative Agent. The Administrative Agent agrees to provide  written notice to the Borrower of any automatic deduction made pursuant to this Section showing  in reasonable detail the amounts of such deduction. Lenders agree to reimburse the Borrower based  





 






  69  on their Applicable Percentage for any amounts deducted from such accounts in excess of amount  due hereunder and under any other Loan Documents.  (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Borrowing of Term SOFR Loans or Alternative Currency Loans (or, in the case of any Borrowing  of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not  make available to the Administrative Agent such Lender’s share of such Borrowing, the  Administrative Agent may assume that such Lender has made such share available on such date in  accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender  has made such share available in accordance with and at the time required by Section 2.02) and  may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to  the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to  the Administrative Agent forthwith on demand such corresponding amount in Same Day 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 Overnight Rate, plus any administrative, processing  or similar fees customarily charged by the Administrative Agent in connection with the foregoing,  and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base  Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent  for the same or an overlapping period, the Administrative Agent shall promptly remit to the  Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its  share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall  constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be  without prejudice to any claim the Borrower may have against a Lender that shall have failed to  make such payment to the Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless  the Administrative Agent shall have received notice from the Borrower prior to the date on  which any payment is due to the Administrative Agent for the account of the Lenders or  the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative  Agent may assume that the Borrower has made such payment on such date in accordance  herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders  or the L/C Issuer, as the case may be, the amount due. With respect to any payment that  the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder  as to which the Administrative Agent determines (which determination shall be conclusive  absent manifest error) that any of the following applies (such payment referred to as the  “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the  Administrative Agent has made a payment in excess of the amount so paid by the Borrower  (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise  erroneously made such payment; then each of the Appropriate Lenders or the L/C Issuer,  as the case may be, severally agrees to repay to the Administrative Agent forthwith on  demand the Rescindable Amount so distributed to such Lender or the L/C Issuer, in Same  Day 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  Overnight Rate.  A notice of the Administrative Agent to any Lender or the Borrower with respect to any  amount owing under this clause (b) shall be conclusive, absent manifest error.  





 






  70  (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions of this Article II, and such funds are not made available to the Borrower by the  Administrative Agent because the conditions to the applicable Credit Extension set forth in Article  IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall  return such funds (in like funds as received from such Lender) to such Lender, without interest.  (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make  Term Loans and Revolving Loans, to fund participations in Letters of Credit and Swingline Loans  and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any  Lender to make any Loan, to fund any such participation or to make any payment under Section  11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding  obligation to do so on such date, and no Lender shall be responsible for the failure of any other  Lender to so make its Loan, to purchase its participation or to make its payment under  Section 11.04(c).  (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.  (f) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each  Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each  payment of fees under Section 2.09 and clauses (l), (m), (o) and (p) of Section 2.03 shall be made  for account of the Appropriate Lenders, and each termination or reduction of the amount of the  Commitments shall be applied to the respective Commitments of the Lenders, pro rata according  to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata  among the Lenders according to the amounts of their respective Commitments (in the case of the  making of Revolving Loans or Delayed Draw Term A Loans) or their respective Loans that are to  be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each  payment or prepayment of principal of Loans by the Borrower shall be made for account of the  Appropriate Lenders pro rata in accordance with the respective unpaid principal amounts of the  Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made for  account of the Appropriate Lenders pro rata in accordance with the amounts of interest on such  Loans then due and payable to the respective Appropriate Lenders.  2.13 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff  or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities  due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of  its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such  Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and  payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account  of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other  Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any  of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan  Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such  Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of  the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and  under the other Loan Documents at such time) of payments on account of the Obligations in respect of the  Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents  at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above,  the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and  





 






  71  (B) purchase (for cash at face value) participations in the Loans and sub-participations in L/C Obligations  and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the  benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount  of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and  payable) to the Lenders, as the case may be, provided that:  (i) if any such participations or sub-participations are purchased and all or  any portion of the payment giving rise thereto is recovered, such participations or sub- participations shall be rescinded and the purchase price restored to the extent of such  recovery, without interest; and  (ii) the provisions of this Section 2.13 shall not be construed to apply to  (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with  the express terms of this Agreement (including the application of funds arising from the  existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in  Section 2.14, or (C) any payment obtained by a Lender as consideration for the assignment  of or sale of a participation in any of its Loans or sub-participations in L/C Obligations or  Swingline Loans to any assignee or participant, other than an assignment to any Loan Party  or any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply).  Each Loan Party 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 Loan Party rights of setoff and counterclaim with respect to such participation as fully  as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  2.14 Cash Collateral.   (a) Obligation to Cash Collateralize. At any time there shall exist a Defaulting Lender,  within one Business Day following the written request of the Administrative Agent or the L/C  Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C  Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect  to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount  not less than the Minimum Collateral Amount. Additionally, if the Administrative Agent notifies  the Borrower at any time that the Outstanding Amount of all L/C Obligations at such time exceeds  102% of the Letter of Credit Sublimit then in effect, then within two (2) Business Days after receipt  of such notice, the Borrower shall provide Cash Collateral for the Outstanding Amount of the L/C  Obligations in an amount not less than the amount by which the Outstanding Amount of all L/C  Obligations exceeds the Letter of Credit Sublimit.  (b) Grant of Security Interest. The Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the  Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,  and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all  balances therein, and all other property so provided as Collateral pursuant hereto, and in all  proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be  applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash  Collateral is subject to any right or claim of any Person other than the Administrative Agent or the  L/C Issuer as herein provided or that the total amount of such Cash Collateral is less than the  Minimum Collateral Amount, 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 (determined in the case of Cash Collateral provided pursuant  





 






  72  to Section 2.15(a)(v), after giving effect to Section 2.15(a)(v) and any Cash Collateral provided by  the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject  to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of  America. The Borrower shall pay on demand therefor from time to time all customary account  opening, activity and other administrative fees and charges in connection with the maintenance and  disbursement of Cash Collateral.  (c) Application. Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or  8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C  Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by  a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other  obligations for which the Cash Collateral was so provided, prior to any other application of such  property as may be provided for herein.  (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as  appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination  by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,  however, (A) any such release shall be without prejudice to, and any disbursement or other transfer  of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan  Documents and the other applicable provisions of the Loan Documents, and (B) the Person  providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released  but instead held to support future anticipated Fronting Exposure or other obligations.  2.15 Defaulting Lenders.   (a) Adjustments. Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by Applicable Law:  (i) Waivers and 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 the definition of “Required Lenders” and Section 11.01.  (ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or  other amounts received by the Administrative Agent for the account of such Defaulting  Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise)  or received by the Administrative Agent from a Defaulting Lender pursuant to Section  11.08 shall be applied at such time or times as may be determined by the Administrative  Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender  to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any  amounts owing by such Defaulting Lender to the L/C Issuer or the Swingline Lender  hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to  such Defaulting Lender in accordance with Section 2.14; 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 such Defaulting Lender has failed to fund its portion thereof as required  by this Agreement, as determined by the Administrative Agent; fifth, if so determined by  the Administrative Agent and the Borrower, to be held in a deposit account and released  





 






  73  pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding  obligations with respect to Loans under this Agreement and (B) Cash Collateralize the L/C  Issuer’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 2.14;  sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline  Lender as a result of any judgment of a court of competent jurisdiction obtained by any  Lender, the L/C Issuer or the Swingline Lender against such Defaulting Lender as a result  of such 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 such Defaulting Lender as a result of such Defaulting Lender’s breach of  its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise  as may be required under the Loan Documents in connection with any Lien conferred  thereunder or directed by a court of competent jurisdiction; provided that if (x) such  payment is a payment of the principal amount of any Loans or L/C Borrowings in respect  of which such Defaulting Lender has not fully funded its appropriate share, and (y) such  Loans were made or the related Letters of Credit were issued at a time when the conditions  set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to  pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata  basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to,  such Defaulting Lender until such time as all Loans and funded and unfunded participations  in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance  with the Commitments hereunder without giving effect to Section 2.15(a)(v). 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 2.15(a)(ii) shall be deemed paid to and redirected by such  Defaulting Lender, and each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) Fees. No Defaulting Lender shall be entitled to receive any fee  payable under Section 2.09(a) 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) Letter of Credit Fees. Each Defaulting Lender shall be entitled to  receive Letter of Credit Fees for any period during which that Lender is a  Defaulting Lender only to the extent allocable to its Applicable Revolving  Percentage of the stated amount of Letters of Credit for which it has provided Cash  Collateral pursuant to Section 2.14.  (C) Defaulting Lender Fees. With respect to any Letter of Credit Fee  not required to be paid to any Defaulting Lender pursuant to clause (B) above, the  Borrower shall (1) 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 L/C Obligations that has been reallocated to such Non- Defaulting Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer the  amount of any such fee otherwise payable to such Defaulting Lender to the extent  allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and  (3) not be required to pay the remaining amount of any such fee.  





 






  74  (iv) Reallocation of Applicable Revolving Percentages to Reduce Fronting  Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and  Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance  with their respective Applicable Revolving Percentages (calculated without regard to such  Defaulting Lender’s Commitment) but only to the extent that such reallocation does not  cause the aggregate Revolving Exposure of any Non-Defaulting Lender 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 (a)(v) above cannot, or can only partially, be effected, the Borrower  shall, without prejudice to any right or remedy available to it hereunder or under Applicable  Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s  Fronting Exposure and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure  in accordance with the procedures set forth in Section 2.14.  (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline  Lender and the L/C Issuer 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 their  Revolving Commitments (without giving effect to Section 2.15(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 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 Revolving Lender is a  Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans  unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline  Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any  letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.  2.16 Increase in Revolving Facility.  (a) Request for Increase. Provided there exists no Default, upon notice to the  Administrative Agent (which shall promptly notify the Revolving Lenders), the Borrower may  from time to time, request an increase in the Revolving Facility by an amount (for all such requests)  not exceeding $100,000,000 (an “Incremental Facility”); provided that (i) any such request for an  Incremental Facility shall be in a minimum amount of $25,000,000, and (ii) the Borrower may  make a maximum of three (3) such requests. At the time of sending such notice, the Borrower (in  consultation with the Administrative Agent) shall specify the time period within which each  





 






  75  Revolving Lender is requested to respond (which shall in no event be less than ten (10) Business  Days from the date of delivery of such notice to the Revolving Lenders).  (b) Lender Elections to Increase. Each Revolving Lender shall notify the  Administrative Agent within such time period whether or not it agrees to increase its Revolving  Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable  Revolving Percentage of such requested increase. Any Revolving Lender not responding within  such time period shall be deemed to have declined to increase its Revolving Commitment.  (c) Notification by Administrative Agent; Additional Revolving Lenders. The  Administrative Agent shall notify the Borrower and each Revolving Lender of the Revolving  Lenders’ responses to each request made hereunder. To achieve the full amount of a requested  increase, and subject to the approval of the Administrative Agent, the L/C Issuer and the Swingline  Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite  additional Eligible Assignees to become Revolving Lenders pursuant to a joinder agreement (“New  Revolving Lenders”) in form and substance satisfactory to the Administrative Agent and its  counsel.  (d) Effective Date and Allocations. If the Revolving Facility is increased in  accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the  effective date (the “Revolving Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the Revolving Lenders and the  New Revolving Lenders of the final allocation of such increase and the Revolving Increase  Effective Date.  (e) Conditions to Effectiveness of Increase. As a condition precedent to such increase,  the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of  the Revolving Increase Effective Date (in sufficient copies for each Lender) signed by a  Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such  Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower, certifying  that, before and after giving effect to such increase, (A) the representations and warranties  contained in Article V and the other Loan Documents are true and correct in all material respects,  on and as of the Revolving Increase Effective Date, except to the extent that such representations  and warranties specifically refer to an earlier date, in which case they are true and correct as of such  earlier date, and except that for purposes of this Section 2.16, the representations and warranties  contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent  statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (B) both  before and after giving effect to the Incremental Facility, no Default exists. The Borrower shall  deliver or cause to be delivered any other customary documents (including, without limitation, legal  opinions) as reasonably requested by the Administrative Agent in connection with any Incremental  Facility. The Borrower shall borrow Revolving Loans and prepay any Revolving Loans outstanding  on the Revolving Increase Effective Date (and pay any additional amounts required pursuant to  Section 3.05) to the extent necessary to keep the outstanding Revolving Loans ratable with any  revised Applicable Revolving Percentages arising from any nonratable increase in the Revolving  Commitments under this Section 2.16.  (f) Conflicting Provisions. This Section 2.16 shall supersede any provisions in Section  2.13 or 11.01 to the contrary.  





 






  76  (g) Incremental Facility. Except as otherwise specifically set forth herein, all of the  other terms and conditions applicable to such Incremental Facility shall be identical to the terms  and conditions applicable to the Revolving Facility.  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.  (a) Defined Terms. For purposes of this Section 3.01, the term “Applicable Law”  includes FATCA and the term “Lender” includes any L/C Issuer.  (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 Loan Party under any Loan  Document shall be made without deduction or withholding for any Taxes, except as required by  Applicable Laws. If any Applicable Laws (as determined in the good faith discretion of an  applicable Withholding Agent) require the deduction or withholding of any Tax from any such  payment by the applicable Withholding Agent, then the applicable Withholding Agent shall be  entitled to make such deduction or withholding and shall timely pay the full amount deducted or  withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such  Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased  as necessary so that after any required withholding or the making of all required deductions  (including deductions applicable to additional sums payable under this Section 3.01) the applicable  Recipient receives an amount equal to the sum it would have received had no such withholding or  deduction been made.  (c) Payment of Other Taxes by the Loan Parties. The Loan 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 Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly and severally  indemnify each Recipient, and shall make payment in respect thereof within ten (10) days  after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or  with respect thereto, whether or not such Indemnified Taxes were correctly or legally  imposed or asserted by the relevant Governmental Authority. A certificate as to the amount  of such payment or liability delivered to the Borrower by a Lender (with a copy to the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a  Lender, shall be conclusive absent manifest error. Each of the Loan Parties shall also, and  does hereby, jointly and severally indemnify the Administrative Agent, and shall make  payment in respect thereof within ten (10) days after demand therefor, for any amount  which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as  required pursuant to Section 3.01(d)(ii) below.  (ii) Each Lender shall, and does hereby, severally indemnify and shall make  payment in respect thereof within ten (10) days after demand therefor, (A) the  





 






  77  Administrative Agent against any Indemnified Taxes attributable to such Lender (but only  to the extent that any Loan Party has not already indemnified the Administrative Agent for  such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),  (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes  attributable to such Lender’s failure to comply with the provisions of Section 11.06(d)  relating to the maintenance of a Participant Register and (C) the Administrative Agent and  the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in  each case, that are payable or paid by the Administrative Agent or a Loan Party in  connection with any Loan Document, and any reasonable expenses arising therefrom or  with respect thereto, whether or not such Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority. A certificate as to the amount of such  payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent  to set off and apply any and all amounts at any time owing to such Lender under any Loan  Document or otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this clause (d)(ii).  (e) Evidence of Payments. As soon as practicable after any payment of Taxes by any  Loan Party to a Governmental Authority, as provided in this Section 3.01, the Borrower 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 any 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 Loan Document shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably requested  by the Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by the Borrower or the Administrative Agent as will  permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative  Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably  requested by the Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements. Notwithstanding anything to the  contrary in the preceding two sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in Section 3.01(f)(ii)(A), (ii)(B)  and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such  completion, execution or submission would subject such Lender to any material  unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that 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 copies of IRS  





 






  78  Form W–9 certifying that such Lender is exempt from U.S. federal backup  withholding tax;  (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:  (1) in the case of a Foreign Lender claiming the benefits of  an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, executed copies of IRS  Form W–8BEN–E (or W–8BEN, as applicable) establishing an exemption  from, or reduction of, U.S. federal withholding Tax pursuant to the  “interest” article of such tax treaty and (y) with respect to any other  applicable payments under any Loan Document, IRS Form W–8BEN–E  (or W–8BEN, as applicable) 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;  (2) executed copies of IRS Form W–8ECI;  (3) in the case of a Foreign Lender claiming the benefits of  the exemption for portfolio interest under Section 881(c) of the Code, (x)  a certificate substantially in the form of Exhibit M–1 to the effect that such  Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)  of the Code, a “10 percent shareholder” of the Borrower within the  meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax  Compliance Certificate”) and (y) executed copies of IRS Form W– 8BEN–E (or W–8BEN, as applicable); or  (4) to the extent a Foreign Lender is not the beneficial owner,  executed copies of IRS Form W–8IMY, accompanied by IRS Form W– 8ECI, IRS Form W–8BEN–E (or W–8BEN, as applicable), a U.S. Tax  Compliance Certificate substantially in the form of Exhibit M–2 or Exhibit  M–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 M–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 copies (or originals, as required) of any other form prescribed by  Applicable Law as a basis for claiming exemption from or a reduction in U.S.  





 






  79  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 Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA  (including those contained in Section 1471(b) or 1472(b) of the Code, as  applicable), such Lender shall deliver to the Borrower and the Administrative  Agent at the time or times prescribed by law and at such time or times reasonably  requested by the Borrower or the Administrative Agent such documentation  prescribed by Applicable Law (including as prescribed by Section  1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably  requested by the Borrower or the Administrative Agent as may be necessary for  the Borrower and the Administrative Agent to comply with their obligations under  FATCA and to determine that such Lender has complied with such Lender’s  obligations under FATCA or to determine the amount to deduct and withhold from  such payment. Solely for the purposes of this clause (f)(ii)(D), “FATCA” shall  include any amendments made to FATCA after the date of this Agreement.  (iii) Each Lender agrees that if any form or certification it previously delivered  pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it  shall update such form or certification or promptly notify the Borrower and the  Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds. Unless required by Applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted  from funds paid for the account of such Lender. If any Recipient 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 by any Loan Party or with respect to which any Loan Party has paid additional amounts  pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but  only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party  under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest  (other than any interest paid by the relevant Governmental Authority with respect to such refund),  provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid  over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant  Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund  to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no  event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to  this clause (g) the payment of which would place the Recipient in a less favorable net after-Tax  position than such Recipient 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 clause (g) shall  not be construed to require any Recipient to make available its tax returns (or any other information  relating to its Taxes that it deems confidential) to any Loan Party or any other Person.  (h) Survival. Each party’s obligations under this Section 3.01 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  





 






  80  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all other Obligations.  3.02 Illegality.   If any Lender determines that any Law has made it unlawful, or that any  Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to  make, maintain or fund Loans whose interest is determined by reference to a Relevant Rate or any  Governmental Authority has imposed material restrictions on the authority of such Lender to engage in  reverse repurchase of U.S. Treasury securities transactions of the type included in the determination of  Term SOFR, or to determine or charge interest rates based upon a Relevant Rate or to purchase or sell, or  to take deposits of, any Alternative Currency in the applicable interbank market, then, upon notice thereof  by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to  make or maintain Alternative Currency Loans in the affected currency or currencies or, in the case of Loans  denominated in Dollars, to make or continue Term SOFR Loans or to convert Base Rate Loans to Term  SOFR Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or  maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR  component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary  to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR  component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the  Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such  notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),  prepay all Alternative Currency Loans, as applicable, in the affected currency or currencies or, if applicable  and such Loans are denominated in Dollars, convert all Term SOFR Loans of such Lender to Base Rate  Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality,  be determined by the Administrative Agent without reference to the Term SOFR component of the Base  Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain  such Term SOFR Loan to such day, or immediately, if such Lender may not lawfully continue to maintain  such Term SOFR Loan and (ii) if such notice asserts the illegality of such Lender determining or charging  interest rates based upon Term SOFR, the Administrative Agent shall during the period of such suspension  compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof  until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such  Lender to determine or charge interest rates based upon Term SOFR.  Upon any such prepayment or  conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together  with any additional amounts required pursuant to Section 3.05.  3.03 Inability to Determine Rates.  (a) If in connection with any request for a Term SOFR Loan or an Alternative  Currency Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any  of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall  be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the  applicable Agreed Currency has been determined in accordance with Section 3.03(b), and the  circumstances under clause (i) of Section 3.03(b) or the Scheduled Unavailability Date has occurred  with respect to the Relevant Rate (as applicable), or (B) adequate and reasonable means do not  otherwise exist for determining such Relevant Rate for the applicable Agreed Currency for any  determination date or requested Interest Period, as applicable, with respect to a proposed Term  SOFR Loan or Alternative Currency Loan or in connection with an existing or proposed Base Rate  Loan, or (ii) the Administrative Agent or the Required Lenders determine that for any reason that  the Relevant Rate with respect to a proposed Loan denominated in an Agreed Currency for any  requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to  such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower  and each Lender.  





 






  81  Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as  applicable, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended in each case to the  extent of the affected Term SOFR Loans or Alternative Currency Loans or Interest Periods or determination  dates, as applicable, and (y) in the event of a determination described in the preceding sentence with respect  to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining  the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a  determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the  Administrative Agent upon instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of,  or conversion to Term SOFR Loans, or Borrowing of, or continuation of Term SOFR Loans or Alternative  Currency Loans to the extent of the affected Term SOFR Loans, Alternative Currency Loans, Interest  Periods or determination dates, as applicable, or, failing that, will be deemed to have converted such request  into a request for a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the  amount specified therein and (ii) (A) any outstanding Term SOFR Loans shall be deemed to have been  converted to Base Rate Loans immediately and (B) any outstanding affected Alternative Currency Loans,  at the Borrower’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated  in Dollars in the Dollar Amount of the amount of such outstanding Alternative Currency Loan immediately,  in the case of an Alternative Currency Daily Rate Loan or at the end of the applicable Interest Period, in  the case of a Term SOFR Loan or Alternative Currency Term Rate Loan or (2) be prepaid in full  immediately, in the case of an Alternative Currency Daily Rate Loan, or at the end of the applicable Interest  Period, in the case of a Term SOFR Loan or Alternative Currency Term Rate Loan; provided that if no  election is made by the Borrower  (x) in the case of an Alternative Currency Daily Rate Loan, by the date  that is three Business Days after receipt by the Borrower of such notice or (y) in the case of a Term SOFR  Loan or Alternative Currency Term Rate Loan, by the last day of the current Interest Period for the  applicable Term SOFR Loan or Alternative Currency Term Rate Loan, the Borrower shall be deemed to  have elected clause (1) above.  (b) Replacement of Relevant Rate Successor Rate.  Notwithstanding anything to the  contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines  (which determination shall be conclusive absent manifest error), or the Borrower or Required  Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the  Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:  (i) adequate and reasonable means do not exist for ascertaining the Relevant  Rate for an Agreed Currency because none of the one month, three month or six month  Interest Periods of such Relevant Rate (including any forward-looking term rate thereof) is  available or published on a current basis and such circumstances are unlikely to be  temporary;  (ii) the Applicable Authority (or any successor administrator of the Term  SOFR Screen Rate) has made a public statement identifying a specific date after which one  month, three month and six month Interest Periods of the Relevant Rate for an Available  Currency (including any forward-looking term rate thereof) or the Term SOFR Screen Rate  shall or will no longer be representative or made available, or permitted to be used for  determining the interest rate of loans denominated in such Available Currency, or shall or  will otherwise cease, provided that, in each case, at the time of such statement, there is no  successor administrator that is satisfactory to the Administrative Agent that will continue  to provide such interest period(s) of the Relevant Rate for such Available Currency (the  latest date on which one month, three month and six month interest periods of the Relevant  Rate for such Available Currency (including any forward-looking term rate thereof) are no  





 






  82  longer representative or available permanently or indefinitely, the “Scheduled  Unavailability Date”); or  (iii) syndicated loans currently being executed and agented in the U.S., are  being executed or amended (as applicable) to incorporate or adopt a new benchmark  interest rate to replace the Relevant Rate for an Alternative Currency;  or if the events or circumstances of the type described in Section 3.03(b)(i), (ii) or (iii) have occurred with  respect to the Successor Rate then in effect, then, (x) with respect to Term SOFR, on a date and time  determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date  shall be at the end of an Interest Period or on the relevant Interest Payment Date, as applicable, for interest  calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date,  Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the  SOFR Adjustment for any payment period for interest calculated that can be determined by the  Administrative Agent, in each case, without any amendment to, or further action or consent of any other  party to, this Agreement or any other Loan Document (the “Term SOFR Successor Rate”), and (y) with  respect to any other Relevant Rate (or if Daily Simple SOFR is not available on or prior to the Term SOFR  Replacement Date), reasonably promptly after such determination by the Administrative Agent or receipt  by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may  amend this Agreement to replace the Relevant Rate for an Available Currency or any then current Successor  Rate for an Available Currency in accordance with this Section 3.03 with an alternate benchmark rate giving  due consideration to any evolving or then existing convention for similar credit facilities syndicated and  agented in the U.S. and denominated in such Available Currency for such alternative benchmarks, and, in  each case, including any mathematical or other adjustments to such benchmark giving due consideration to  any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and  denominated in such Available Currency for such benchmarks, which adjustment or method for calculating  such adjustment shall be published on an information service as selected by the Administrative Agent from  time to time in its reasonable discretion and may be periodically updated (and any such proposed rate,  including for the avoidance of doubt, any adjustment thereto, an “Other Relevant Rate Successor Rate”  and together with the Term SOFR Successor Rate, a “Successor Rate”), and any such amendment shall  become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted  such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising  the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders  object to such amendment.   If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will  be payable on a quarterly basis.  The Administrative Agent will promptly (in one or more notices) notify the Borrower and each  Lender of the implementation of any Successor Rate.  Any Successor Rate shall be applied in a manner consistent with market practice; provided that to  the extent such market practice is not administratively feasible for the Administrative Agent, such Successor  Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.  Notwithstanding anything else herein, if at any time any Successor Rate as so determined would  otherwise be less than zero%, the Successor Rate will be deemed to be zero% for the purposes of this  Agreement and the other Loan Documents.  In connection with the implementation of a Successor Rate, the Administrative Agent will have the  right to make Conforming Changes from time to time, in consultation with the Borrower, and,  





 






  83  notwithstanding anything to the contrary herein or in any other Loan Document, any amendments  implementing such Conforming Changes will become effective without any further action or consent of  any other party to this Agreement; provided that, with respect to any such amendment effected, the  Administrative Agent shall post each such amendment implementing such Conforming Changes to the  Borrower and the Lenders reasonably promptly after such amendment becomes effective.  For purposes of this Section 3.03, those Lenders that either have not made, or do not have an  obligation under this Agreement to make, the relevant Loans in the relevant Alternative Currency shall be  excluded from any determination of Required Lenders.  3.04 Increased Costs.  (a) Increased Costs Generally. If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of, deposits with  or for the account of, or credit extended or participated in by, any Lender or the L/C Issuer;  (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 the L/C Issuer or any applicable interbank market  any other condition, cost or expense affecting this Agreement or Term SOFR Loans or  Alternative Currency Loans made by such Lender or any Letter of Credit or participation  therein;  and the result of any of the foregoing shall be to increase the cost to such Lender of making,  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 or the L/C Issuer of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any  Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the  L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of  such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case  may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as  the case may be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change  in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such  Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements  has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s  capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a  consequence of this Agreement, the Commitments of such Lender or the Loans made by, or  participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit  issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s  or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the  L/C Issuer’s holding company with respect to capital adequacy), then from time to time the  Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or  





 






  84  amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s  holding company for any such reduction suffered.  (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting  forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding  company, as the case may be, as specified in clause (a) or (b) of this Section 3.04 and delivered to  the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the  L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10)  days after receipt thereof.  (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to  demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute  a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that  the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the  foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered  more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be,  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of  such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the  Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9)  month period referred to above shall be extended to include the period of retroactive effect thereof).  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the  Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and  hold such Lender harmless from any loss, cost or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any Loan other than a  Base Rate Loan  on a day other than the last day of the Interest Period for such Loan (whether  voluntary, mandatory, automatic, by reason of acceleration, or otherwise);  (b) any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the  date or in the amount notified by the Borrower;  (c) any failure by the Borrower to make payment of any Loan or drawing under any  Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled  due date or any payment thereof in a different currency; or  (d) any assignment of a Term SOFR Loan or an Alternative Currency Loan on a day  other than the last day of the Interest Period therefor as a result of a request by the Borrower  pursuant to Section 11.13;   including any loss of anticipated profits, any foreign exchange losses and any loss or expense  arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from  fees payable to terminate the deposits from which such funds were obtained or from the  performance of any foreign exchange contract. The Borrower shall also pay any customary  administrative fees charged by such Lender in connection with the foregoing.  For purposes of calculating amounts payable by the Borrower to the Lenders under this  Section 3.05, each Lender shall be deemed to have funded each Alternative Currency Term Rate  Loan made by it at the Alternative Currency Term Rate for such Loan by a matching deposit or  other borrowing in the offshore interbank eurodollar market for such currency for a comparable  





 






  85  amount and for a comparable period, whether or not such Alternative Currency Term Rate Loan  was in fact so funded.  3.06 Mitigation Obligations; Replacement of Lenders.   (a) Designation of a Different Lending Office. If any Lender requests compensation  under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts  to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the  L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then  at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable  efforts to designate a different Lending Office for funding or booking its Loans hereunder or to  assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the  judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or  reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or  eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would  not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense  and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or  the L/C Issuer in connection with any such designation or assignment.   (b) Replacement of Lenders. Each Lender may make any Credit Extension to the  Borrower through any Lending Office, provided that the exercise of this option shall not affect the  obligation of the Borrower to repay the Credit Extension in accordance with the terms of this  Agreement. If any Lender requests compensation under Section 3.04, or if the Borrower is required  to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority  for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined  or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower  may replace such Lender in accordance with Section 11.13.  3.07 Survival.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate  Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and  the Facility Termination Date.  ARTICLE IV    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  4.01 Conditions of Initial Credit Extension.  The obligation of the L/C Issuer and each Lender  to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions  precedent:  (a) Execution of Credit Agreement; Loan Documents. The Administrative Agent shall  have received (i) counterparts of this Agreement, executed by a Responsible Officer of each Loan  Party and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting a  Note, a Note executed by a Responsible Officer of the Borrower, (iii) counterparts of the Security  Agreement and each other Collateral Document, executed by a Responsible Officer of the  applicable Loan Parties and a duly authorized officer of each other Person party thereto, as  applicable and (iv) counterparts of any other Loan Document, executed by a Responsible Officer  of the applicable Loan Party and a duly authorized officer of each other Person party thereto.  





 






  86  (b) Officer’s Certificate; Evidence of Existence and Good Standing. The  Administrative Agent shall have received an Officer’s Certificate dated the Closing Date, certifying  as to the Organization Documents of each Loan Party (which, to the extent filed with a  Governmental Authority, shall be certified as of a recent date by such Governmental Authority),  the resolutions of the governing body of each Loan Party, and of the incumbency (including  specimen signatures) of the Responsible Officers of each Loan Party, and such documents and  certificates of existence and good standing as my be reasonably requested by the Administrative  Agent.  (c) Legal Opinions of Counsel. The Administrative Agent shall have received an  opinion or opinions (including, if requested by the Administrative Agent, local counsel opinions)  of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent  and the Lenders, in form and substance acceptable to the Administrative Agent.  (d) Financial Statements. The Administrative Agent and the Lenders shall have  received copies of the financial statements and projections referred to in Section 5.05, each in form  and substance satisfactory to each of them.  (e) Personal Property Collateral. The Administrative Agent shall have received, in  form and substance satisfactory to the Administrative Agent:  (i) (A) searches of UCC filings in the jurisdiction of incorporation or  formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is  located or where a filing would need to be made in order to perfect the Administrative  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,  judgment and bankruptcy searches;  (ii) searches of ownership of Intellectual Property in the appropriate  governmental offices and such patent/trademark/copyright filings as requested by the  Administrative Agent in order to perfect the Administrative Agent’s security interest in the  Intellectual Property;  (iii) completed UCC financing statements for each appropriate jurisdiction as  is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative  Agent’s security interest in the Collateral; and  (iv) stock or membership certificates, if any, evidencing the Pledged Equity  and undated stock or transfer powers duly executed in blank; in each case to the extent such  Pledged Equity is certificated.  (f) Liability, Casualty, Property, Terrorism and Business Interruption Insurance. The  Administrative Agent shall have received copies of insurance policies, declaration pages,  certificates, and endorsements of insurance or insurance binders evidencing liability, casualty,  property, terrorism and business interruption insurance meeting the requirements set forth herein  or in the Collateral Documents or as required by the Administrative Agent. The Loan Parties shall  have delivered to the Administrative Agent an Authorization to Share Insurance Information.  (g) Solvency Certificate. The Administrative Agent shall have received a Solvency  Certificate signed by a Responsible Officer of the Borrower as to the financial condition, solvency  





 






  87  and related matters of the Borrower and its Subsidiaries, after giving effect to the initial Borrowings  under the Loan Documents and the other transactions contemplated hereby.  (h) Financial Condition Certificate. The Administrative Agent shall have received a  certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing Date,  as to certain financial matters, substantially in the form of Exhibit P.  (i) Material Agreements. The Administrative Agent shall have received true and  complete copies, certified by an officer of the Borrower as true and complete, of all agreements  listed in Schedule 5.20 requested by the Administrative Agent, including the SoCal Contract.  (j) Loan Notice. The Administrative Agent shall have received a Loan Notice with  respect to the Loans to be made on the Closing Date.  (k) Existing Debt; Liens.  Evidence that all principal, interest, and other amounts  owing in respect of all Existing Debt of the Loan Parties (other than Indebtedness permitted to  remain outstanding in accordance with Section 7.01 hereof) will be repaid in full as of the Closing  Date, and that with respect to all Indebtedness permitted to remain outstanding in accordance with  Section 7.01 hereof, any defaults or events of default existing as of the Closing Date with respect  to such Indebtedness will be cured or waived immediately following the funding of the initial  Loans; and evidence that as of the Closing Date, the Property of the Loan Parties is not subject to  any Liens (other than Liens in favor of the Administrative Agent and Liens permitted to remain  outstanding in accordance with Section 7.02 hereof).  (l) Organizational Structure.  The corporate organizational structure, capitalization  and ownership of the Borrower and its Subsidiaries shall be as set forth on Schedule 5.15 annexed  hereto.  The Administrative Agent shall have had the opportunity to review, and shall be satisfied  with, the Loan Parties’ state and federal tax assumptions, and the ownership, capital, organization  and structure of the Loan Parties.  (m) Necessary Governmental Permits, Licenses and Authorizations and Consents; Etc.   The Loan Parties shall have obtained all other permits, licenses, authorizations and consents from  all other Governmental Authorities and all consents of other Persons with respect to Material  Indebtedness, Liens and Material Agreements listed on Schedule 5.16 (and so identified thereon)  annexed hereto, in each case that are necessary or advisable in connection with the transactions  contemplated by the Loan Documents, and each of the foregoing shall be in full force and effect,  in each case other than those the failure to obtain or maintain which, either individually or in the  aggregate, would not reasonably be expected to have a Material Adverse Effect.  No action, request  for stay, petition for review or rehearing, reconsideration or appeal with respect to any of the  foregoing shall be pending, and the time for any applicable Governmental Authority to take action  to set aside its consent on its own motion shall have expired.  (n) No Material Adverse Change.  Since December 30, 2021, there shall have occurred  no material adverse change (in the reasonable opinion of the Administrative Agent) in the  businesses, operations, properties (including tangible properties), or conditions (financial or  otherwise), assets, liabilities or income of the Loan Parties, taken as a whole.  (o) Anti-Money-Laundering; Beneficial Ownership. Upon the reasonable request of  any Lender, the Borrower shall have provided to such Lender, and such Lender shall be reasonably  satisfied with, the documentation and other information so requested in connection with applicable  “know your customer” and anti-money-laundering rules and regulations, including, without  





 






  88  limitation, the Patriot Act, and any Loan Party that qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation shall have delivered to each Lender that so requests, a Beneficial  Ownership Certification in relation to such Loan Party.  (p) Fees and Expenses. The Administrative Agent and the Lenders shall have received  all fees and expenses, if any, owing pursuant to the Fee Letter and Section 2.09.  (q) Due Diligence. The Lenders shall have completed a due diligence investigation of  the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders.  (r) Other Documents. All other documents provided for herein or which the  Administrative Agent or any other Lender may reasonably request.  (s) Additional Information. Such additional information and materials which the  Administrative Agent and/or any Lender shall reasonably request.  Without limiting the generality of the provisions of Section 9.03(c), for purposes of determining  compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement  shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other  matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender  unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing  Date specifying its objection thereto.  4.02 Conditions to all Credit Extensions.  The obligation of each Lender and the L/C Issuer  to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans  to the other Type, or a continuation of Term SOFR Loans or Alternative Currency Loans) is subject to the  following conditions precedent:  (a) Representations and Warranties. The representations and warranties of the  Borrower and each other Loan Party contained in Article II, Article V or any other Loan Document,  or which are contained in any other Loan Document delivered by any Loan Party to the  Administrative Agent or any Lender on or after the Closing Date, shall (i) with respect to  representations and warranties that contain a materiality qualification, be true and correct on and  as of the date of such Credit Extension and (ii) with respect to representations and warranties that  do not contain a materiality qualification, be true and correct in all material respects on and as of  the date of such Credit Extension, both before and after giving effect thereto and to the use of the  proceeds thereof (or, if any such representation or warranty is expressly stated to have been made  as of a specific date, such representation or warranty shall be or have been true and correct in all  material respects as of such specific date and provided that, to the extent any change in  circumstances expressly permitted by this Agreement causes any representation and warranty set  forth herein to no longer be true, such representation and warranty shall be deemed modified to  reflect such change in circumstances and except that for purposes of this Section 4.02, the  representations and warranties contained in Sections 5.05(a)(i)) and 5.05(a)(ii) shall be deemed to  refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.).  (b) Default. No Default shall exist, or would result from such proposed Credit  Extension or from the application of the proceeds thereof.  (c) Request for Credit Extension. The Administrative Agent and, if applicable, the   L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in  accordance with the requirements hereof.  





 






  89  (d) Alternative Currency. In the case of a Credit Extension to be denominated in an  Alternative Currency, such currency remains an Eligible Currency.  Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans  to the other Type or a continuation of Term SOFR Loans or Alternative Currency Loans) submitted by the  Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections  4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.  ARTICLE V    REPRESENTATIONS AND WARRANTIES  Each Loan Party represents and warrants to the Administrative Agent and the Lenders, as of the  date made or deemed made, that:  5.01 Existence, Qualification and Power.  Each Loan Party (a) is duly organized or formed,  validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation  or organization, (b) has all requisite power and authority and all requisite governmental licenses,  authorizations, consents and approvals to (i) own or lease its assets and carry on its business as presently  conducted and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a  party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each  jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such  qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do  so could not reasonably be expected to have a Material Adverse Effect. The copy of the Organization  Documents of each Loan Party provided to the Administrative Agent pursuant to the terms of this  Agreement is a true and correct copy of each such document, each of which is valid and in full force and  effect.  5.02 Authorization; No Contravention.  The execution, delivery and performance by each  Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized  by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms  of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention  of, or the creation of (or the requirement to create) any Lien under, or require any payment to be made  under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the  properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any  Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate  any Applicable Law.  5.03 Governmental Authorization; Other Consents.  No approval, consent, exemption,  authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other  Person is necessary or required in connection with (a) the execution, delivery or performance by, or  enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by any  Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or  maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof)  or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or  the remedies in respect of the Collateral pursuant to the Collateral Documents, other than (i) authorizations,  approvals, actions, notices and filings which have been duly obtained and (ii) filings to perfect the Liens  created by the Collateral Documents.  5.04 Binding Effect.   This Agreement has been, and each other Loan Document, when  delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  





 






  90  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid  and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in  accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or  other laws affecting creditors’ rights generally and subject to general principals of equity.  5.05 Financial Statements; No Material Adverse Effect.  (a) The Loan Parties have heretofore delivered to the Lenders the following financial  statements:  (i) the consolidated balance sheets and statements of operations,  shareholders’ equity and cash flows of the Borrower and all Subsidiaries of the Borrower,  as of and for the fiscal years ended December 31, 2020 and December 31, 2021, in each  case, audited and accompanied by an opinion of the Borrower’s independent public  accountants (the “Audited Financial Statements”);  (ii) the unaudited consolidated balance sheet and statements of operations,  shareholders’ equity and cash flows of the Borrower and all Subsidiaries of the Borrower  and all Subsidiaries of the Borrower, as of and for the fiscal year-to-date period ended  September 30, 2021, certified by a Responsible Officer that such financial statements fairly  present in all material respects the financial condition of the Borrower and all Subsidiaries  of the Borrower as at such date and the results of the operations of the Borrower and all  Subsidiaries of the Borrower for the period ended on such date and that all such financial  statements, including the related schedules and notes thereto have been prepared in all  material respects in accordance with GAAP applied consistently throughout the periods  involved, except as disclosed on Schedule 5.05; and  (iii) the projected consolidated balance sheets, statements of operations and  cash flows for the Borrower and all Subsidiaries of the Borrower on a quarterly basis for  fiscal year 2022.  Except as disclosed on Schedule 5.05, such financial statements (except for the projections) present fairly,  in all material respects, the respective consolidated financial position and results of operations and cash  flows of the respective entities as of such respective dates and for such periods in accordance with GAAP,  subject to year-end audit adjustments and the absence of footnotes in the case of such unaudited or pro  forma statements.  The projections were prepared by the Borrower in good faith and were based on  assumptions that the Borrower believed were reasonable when made, it being understood, that actual results  during the periods covered thereby may differ from the projected results.  (b) Except as disclosed on Schedule 5.05, since December 31, 2021, there has been no  material adverse change in the business, assets, operations or condition, financial or otherwise, of  the Loan Parties (taken as a whole) from that set forth in the December 31, 2021 financial  statements referred to in clause (ii) of paragraph (a) above.  (c) None of the Loan Parties has on the date hereof any contingent liabilities, liabilities  for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any  unfavorable commitments in each case that are material and would need to be disclosed on financial  statements in accordance with GAAP, except (i) as referred to or reflected or provided for in the  financial statements described in this Section 7.04, (ii) as provided for in Schedule 5.05 annexed  hereto, or (iii) as otherwise permitted pursuant to this Agreement.  





 






  91  5.06 Litigation and Environmental Matters.    (a) There are no actions, suits or proceedings by or before any arbitrator or  Governmental Authority pending against or, to the knowledge of the Loan Parties, threatened  against or affecting any Loan Party as to which there is a reasonable possibility of an adverse  determination and that, if adversely determined, could reasonably be expected, individually or in  the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters set forth in  part (a) of Schedule 5.06).  (b) Except for the Disclosed Matters set forth in Schedule 5.06 and except with respect  to any other matters that, individually or in the aggregate, could not reasonably be expected to result  in a Material Adverse Effect, the Loan Parties (i) have not failed to comply with any Environmental  Law or to obtain, maintain or comply with any permit, license or other approval required in  connection with the operation of the Loan Parties’ business to be in compliance with all applicable  Environmental Laws, (ii) have not become subject to any Environmental Liability; (iii) have not  received notice of any claim with respect to any Environmental Liability or any inquiry, allegation,  notice or other communication from any Governmental Authority which is currently outstanding  or pending concerning its compliance with any Environmental Law or (iv) do not know of any basis  for any Environmental Liability.  (c) Since the date of this Agreement, there has been no change in the status of the  Disclosed Matters that, individually or in the aggregate, has resulted in, or could reasonably be  expected to result in, a Material Adverse Effect.  5.07 Compliance with Laws and Agreements.  Except as set forth on Schedule 5.07, each  Loan Party is in compliance with all laws, regulations, policies and orders of any Governmental Authority  applicable to it or its property and all its Contractual Obligations, except where the failure to do so,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  5.08 Properties.  (a) Each Loan Party has good and marketable title to, or valid, subsisting and  enforceable leasehold interests in, all its Property material to its business.  All machinery and  equipment of the Loan Parties material to their business is in good operating condition and repair  (ordinary wear and tear excepted), and all necessary replacements of and repairs thereto have been  made so as to preserve and maintain the value and operating efficiency of such machinery and  equipment.  (b) Set forth on Schedule 5.08 hereto is a complete list of all Patents, Trademarks and  Copyrights.  Each Loan Party owns, or is licensed to use, all Patents, Trademarks and Copyrights  and other intellectual property material to its business (“Proprietary Rights”), and to the knowledge  of the Borrower, the use thereof by the Loan Parties does not infringe upon the rights of any other  Person, except for any such infringements that, individually or in the aggregate, could not  reasonably be expected to result in a Material Adverse Effect.  (c) Schedule 5.08 clearly identifies all Patents, Trademarks and Copyrights that have  been duly registered in, filed in or issued by the PTO or the United States Register of Copyrights  (collectively, the “Registered Proprietary Rights”).  The Registered Proprietary Rights have been  properly maintained and renewed in accordance with all applicable provisions of law and  administrative regulations in the United States, as applicable.  The Loan Parties have taken  commercially reasonable steps to protect the Registered Proprietary Rights material to their  





 






  92  businesses and to maintain the confidentiality of all Proprietary Rights that are not generally in the  public domain.  (d) As of the date hereof, Schedule 5.08 annexed hereto contains a true, accurate and  complete list of (i) all Real Property Assets, whether owned or leased, and (ii) all leases, subleases  or assignments of leases (together with all amendments, modifications, supplements, renewals or  extensions of any thereof) affecting each Material Leasehold Property, regardless of whether such  Loan Party is the landlord or tenant (whether directly or as an assignee or successor in interest)  under such lease, sublease or assignment.  Except as specified in Schedule 5.08, each agreement  listed in clause (c) of the immediately preceding sentence is in full force and effect and the  Borrower has no knowledge of any default that has occurred and is continuing thereunder, and each  such agreement constitutes the legal, valid and binding obligation of each applicable Loan Party,  enforceable against such Loan Party in accordance with its terms, except as enforcement may be  limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or  limiting creditors’ rights generally or by equitable principles.  5.09 Insurance.  The properties of the Borrower and its Subsidiaries are insured with financially  sound and reputable insurance companies not Affiliates of the Borrower, in such amounts (after giving  effect to any self-insurance compatible with the following standards), 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 Loan Party or the applicable Subsidiary operates. The general  liability, casualty, property, terrorism and business interruption insurance coverage of the Loan Parties as  in effect on the Closing Date, and as of the last date such Schedule was required to be updated in accordance  with Sections 6.02, 6.05 and 6.13, is outlined as to carrier, policy number, expiration date, type, amount  and deductibles on Schedule 5.09 and such insurance coverage complies with the requirements set forth in  this Agreement and the other Loan Documents.  5.10 Taxes.  Except as set forth on Schedule 5.10, each Loan Party has timely filed or caused  to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes  required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate  proceedings and for which such Loan Party has set aside on its books adequate reserves with respect thereto  in accordance with GAAP, which reserves shall be acceptable to Agent, or (b) to the extent that the failure  to do so could not reasonably be expected to result in a Material Adverse Effect.  5.11 ERISA Compliance.  (a) Except as would not reasonably be expected to result in a Material Adverse Effect,  (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA, the  Code and other federal or state laws; (ii) each Pension Plan that is intended to be a qualified plan  under Section 401(a) of the Code has received a favorable determination letter or is subject to a  favorable opinion letter from the IRS to the effect that the form of such Plan is qualified under  Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt  from federal income tax under Section 501(a) of the Code, or an application for such a letter is  currently being processed by the IRS; and (iii) to the best knowledge of the Loan Parties, nothing  has occurred that would prevent or cause the loss of such tax-qualified status.  (b) There are no pending or, to the best knowledge of the Loan Parties, threatened  claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that  could reasonably be expected to have a Material Adverse Effect. There has been no prohibited  transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted  or could reasonably be expected to result in a Material Adverse Effect.  





 






  93  (c) Except as would not reasonably be expected to result in a Material Adverse Effect,  (i) no ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact,  event or circumstance that could reasonably be expected to constitute or result in an ERISA Event  with respect to any Pension Plan or Multiemployer Plan; (ii) no Loan Party nor any ERISA Affiliate  has incurred any liability to the PBGC other than for the payment of premiums, and there are no  premium payments which have become due that are unpaid; (iii) neither the Borrower nor any  ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section  4212(c) of ERISA; and (iv) no Pension Plan has been terminated by the plan administrator thereof  nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be  expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any  Pension Plan  (d) As of the Closing Date, neither the Borrower nor any ERISA Affiliate maintains  or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or  terminated Pension Plan other than those listed on Schedule 5.11 hereto.  (e) As of the most recent valuation date for any Pension Plan, except where the same  could not have a Material Adverse Effect, the funding target attainment percentage (as defined in  Section 430(d)(2) of the Code) is 60% or higher, and no Loan Party nor any ERISA Affiliate knows  of any facts or circumstances that could reasonably be expected to cause the funding target  attainment percentage for any such plan to drop below 60% as of the most recent valuation date  except where the same could not have a Material Adverse Effect.  As of the most recent valuation  date for each Multiemployer Plan, the potential liability of the Borrower or any ERISA Affiliate  for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 or  Section 4205 of ERISA), when aggregated with such potential liability for a complete withdrawal  from all Multiemployer Plans, is less than $1,000,000.  (f) The Borrower represents and warrants as of the Closing Date, subject to the  accuracy of the Lender’s representations in Section 9.12, that the Borrower is not and will not be  using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more  Benefit Plans with respect to the Borrower’s entrance into, participation in, administration of and  performance of the Loans, the Letters of Credit, the Commitments or this Agreement.   5.12 Margin Regulations; Investment Company Act.  (a) Margin Regulations. Neither the Borrower nor any of its Subsidiaries is engaged  or will engage, principally or as one of its important activities, in the business of purchasing or  carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of  purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing  or drawing under each Letter of Credit, not more than twenty-five percent (25%) of the value of  the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated  basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction  contained in any agreement or instrument between the Borrower or any of its Subsidiaries and any  Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section  8.01(e) will be margin stock.  (b) Investment and Holding Company Status.  No Loan Party or any Person  Controlling the Borrower is (a) an “investment company” as defined in, or subject to regulation  under, the Investment Company Act of 1940, as amended, (b) a “holding company” as defined in,  or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended or (c)  





 






  94  a “bank holding company” as defined in, or subject to regulation under, the Bank Holding Company  Act of 1956, as amended.  5.13 Disclosure.  As of the Closing Date, the Loan Parties have disclosed to the Administrative  Agent all Material Agreements, instruments and corporate or other restrictions to which any Loan Party is  subject after the Closing Date, and all other matters known to the Loan Parties, that, individually or in the  aggregate, could reasonably be expected to result in a Material Adverse Effect.  The organizational structure  of the Loan Parties is as set forth on Schedule 5.15 annexed hereto.  The information, reports, financial  statements, exhibits and schedules furnished at or prior to the Closing Date in writing by or on behalf of the  Loan Parties to the Administrative Agent in connection with the negotiation, preparation or delivery of this  Agreement and the other Loan Documents or included herein or therein or delivered pursuant hereto or  thereto, at the Closing Date, when taken as a whole do not contain any untrue statement of material fact or  omit to state any material fact necessary to make the statements herein or therein, in light of the  circumstances under which they were made, not materially misleading.  All written information furnished  after the Closing Date by the Loan Parties to the Administrative Agent and/or the Lenders in connection  with this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby  will be true, complete and accurate in every material respect, or (in the case of pro-forma information and  projections) prepared in good faith based on assumptions believed by such Loan Party to be reasonable as  of the date when such information is stated or certified.  There is no fact known to the Loan Parties that  could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein, in the  other Loan Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other writing  furnished to the Agent for use in connection with the transactions contemplated hereby or thereby.  5.14 Capitalization.  As of the Closing Date, the capital structure and ownership of the  Subsidiaries are correctly described on Schedule 5.15.  As of the Closing Date, the authorized, issued and  outstanding capital stock of each Subsidiary of the Borrower consists of the capital stock described on  Schedule 5.15, all of which is duly and validly issued and outstanding, fully paid and nonassessable.  Except  as set forth on Schedule 5.15, as of the date hereof, (x) there are no outstanding Equity Rights with respect  to any Subsidiary of the Borrower and, (y) there are no outstanding obligations of the any Subsidiary of the  Borrower to repurchase, redeem, or otherwise acquire any shares of capital stock of or other interest in any  Subsidiary of the Borrower, nor are there any outstanding obligations of the any Subsidiary of the Borrower  to make payments to any Person, such as “phantom stock” payments, where the amount thereof is calculated  with reference to the fair market value or equity value of any Subsidiary of the Borrower.  5.15 Subsidiaries.    (a) Set forth on Schedule 5.15 is a complete and correct list of all Subsidiaries of the  Borrower as of the date hereof (or, from and after the delivery of the first Compliance Certificate  with a revised Schedule 5.15, as of the date of the most recently delivered Compliance Certificate),  together with, for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii)  each Person holding ownership interests in such Subsidiary, (iii) the nature of the ownership  interests held by each such Person and the percentage of ownership of such Subsidiary represented  by such ownership interests and (iv) a statement with respect to each Subsidiary as to whether such  Subsidiary is a Core Ameresco Company (and if so, if it is a Guarantor) or a Non-Core Company,  if it is a Foreign Subsidiary or an Inactive Subsidiary.  Except as disclosed in Schedule 5.15, (x)  each Loan Party and its respective Subsidiaries owns, free and clear of Liens (other than Liens  permitted hereunder), and has the unencumbered right to vote, all outstanding ownership interests  in each Person shown to be held by it in Schedule 5.15, (y) all of the issued and outstanding capital  stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable  and (z) there are no outstanding Equity Rights with respect to such Person.  





 






  95  (b) Except as set forth on Schedule 5.15, as of the date of this Agreement none of the  Loan Parties is subject to any indenture, agreement, instrument or other arrangement containing  any provision of the type described in Section 7.08 (“Restrictive Agreements”), other than any such  provision the effect of which has been unconditionally, irrevocably and permanently waived or  constitute Permitted Liens.  5.16 Compliance with Laws and Agreements.  Except as set forth on Schedule 5.16, each  Loan Party is in compliance with all laws, regulations, policies and orders of any Governmental Authority  applicable to it or its property and all of its Contractual Obligations, except where the failure to do so,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  5.17 Solvency.  As of the Effective Time and after giving effect to the initial Loans hereunder  and the other transactions contemplated hereby:  (a) the aggregate value of all properties of the Loan Parties at their present fair saleable  value on a consolidated, going concern basis (i.e., the amount that may be realized within a  reasonable time, considered to be six months to one year, either through collection or sale at the  regular market value, conceiving the latter as the amount that could be obtained for such properties  within such period by a capable and diligent businessman from an interested buyer who is willing  to purchase under ordinary selling conditions), exceeds the amount of all the consolidated debts  and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of the  Loan Parties;  (b) the Loan Parties will not, on a consolidated basis, have an unreasonably small  capital with which to conduct their business operations as heretofore conducted; and  (c) the Loan Parties will have, on a consolidated basis, sufficient cash flow to enable  them to pay their debts as they mature.  5.18 Casualty, Etc.  Neither the businesses nor the properties of any Loan Party or any of its  Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought,  storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not  covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a  Material Adverse Effect.    5.19 Sanctions Concerns and Anti-Corruption Laws.  (a) Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of  the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or  representative thereof, is an individual or entity that is, or is owned or controlled by one or more  individuals or entities that are (i) currently the subject or target of any Sanctions, (ii) included on  OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions  Targets, or any similar list enforced by any other relevant sanctions authority or (iii) located,  organized or resident in a Designated Jurisdiction. The Borrower and its Subsidiaries have  conducted their businesses in compliance in all material respects with all applicable Sanctions and  have instituted and maintained policies and procedures designed to promote and achieve  compliance with such Sanctions.  (b) Anti-Corruption Laws. The Loan Parties and their Subsidiaries have conducted  their business in compliance in all material respects with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in  





 






  96  other jurisdictions, and have instituted and maintained policies and procedures designed to promote  and achieve compliance with such laws.  5.20 Material Indebtedness, Liens and Agreements.  (a) Schedule 5.20 hereto contains a complete and correct list, as of the date of this  Agreement, of all Material Indebtedness or any extension of credit (or commitment for any  extension of credit) to, or guarantee by, any Loan Party the aggregate principal or face amount of  which equals or exceeds (or may equal or exceed) $10,000,000, and the aggregate principal or face  amount outstanding or that may become outstanding with respect thereto is correctly described on  Schedule 5.20.  (b) Schedule 5.20 hereto is a complete and correct list, as of the date of this  Agreement, of each Lien (other than the Liens in favor of the Administrative Agent and Lenders)  securing Indebtedness of any Person and covering any property of the Loan Parties, and the  aggregate Indebtedness secured (or which may be secured) by each such Lien and the Property  covered by each such Lien is correctly described in the appropriate part of Schedule 5.20.  (c) Schedule 5.20 hereto is a complete and correct list, as of the date of this  Agreement, of each Contractual Obligation to which any Loan Party is a party for which breach,  nonperformance, cancellation or failure to renew would have a Material Adverse Effect other than  purchase orders made in the ordinary course of business and subject to customary terms (each, a  “Material Agreement”).  (d) To the extent requested by the Administrative Agent, true and complete copies of  each agreement listed on the appropriate part of Schedule 5.20 have been delivered to the  Administrative Agent, together with all amendments, waivers and other modifications thereto.  All  such agreements, including the SoCal Contract, are valid, subsisting, in full force and effect, are  currently binding and will continue to be binding upon each Loan Party that is a party thereto and,  to the best knowledge of the Loan Parties, binding upon the other parties thereto in accordance with  their terms.  The Loan Parties are not in default under any such agreements, which default could  have a Material Adverse Effect.  5.21 Federal Reserve Regulations. No Loan Party is engaged principally or as one of its  important activities in the business of extending credit for the purpose of purchasing or carrying margin  stock (as defined in Regulation U of the FRB).  The making of the Loans hereunder, the use of the proceeds  thereof as contemplated hereby, and the security arrangements contemplated by the Loan Documents, will  not violate or be inconsistent with any of the provisions of Regulations T, U, or X of the FRB.  5.22 Force Majeure.  Since December 31, 2021, the business, properties and other assets of the  Loan Parties, taken as a whole, have not been affected in any way as the result of any fire or other casualty,  strike, lockout or other labor trouble, embargo, sabotage, confiscation, contamination, riot, civil  disturbance, activity of armed forces or act of God that would have a Material Adverse Effect.  5.23 Bank Accounts.  Schedule 5.23 lists all banks and other financial institutions at which any  Loan Party maintains deposits and/or other accounts as of the Closing Date, and such Schedule correctly  identifies the name and address of each depository, the name in which the account is held, a description of  the purpose of the account, and the complete account number.  5.24 Matters Relating to Inactive Subsidiaries.  No Inactive Subsidiary (i) owns or otherwise  holds any property or other assets or (ii) conducts any business.  





 






  97  5.25 EEA Financial Institutions.   No Loan Party is an EEA Financial Institution.  5.26 Covered Entities.  No Loan Party is a Covered Entity.  5.27 Beneficial Ownership Certification.  The information included in the Beneficial  Ownership Certification, if applicable, is true and correct in all respects.  5.28 Labor and Employment Matters.  (a) Except as set forth on Schedule 5.28 as of the Closing Date, and thereafter with  respect to which such would have a Material Adverse Effect, (A) no employee of the Loan Parties  is represented by a labor union, no labor union has been certified or recognized as a representative  of any such employee, and the Loan Parties do not have any obligation under any collective  bargaining agreement or other agreement with any labor union or any obligation to recognize or  deal with any labor union, and there are no such contracts or other agreements pertaining to or  which determine the terms or conditions of employment of any employee of the Loan Parties; (B)  no Loan Party has knowledge of any pending or threatened representation campaigns, elections or  proceedings; (C) the Loan Parties do not have knowledge of any strikes, slowdowns or work  stoppages of any kind, or threats thereof, and no such activities occurred during the 24-month  period preceding the date hereof; and (D) no Loan Party has engaged in, admitted committing or  been held to have committed any unfair labor practice.  (b) Except as set forth on Schedule 5.28, the Loan Parties have at all times complied  in all material respects, and are in material compliance with, all applicable laws, rules and  regulations respecting employment, wages, hours, compensation, benefits, and payment and  withholding of taxes in connection with employment.  (c) Except as set forth on Schedule 5.28, except as could not reasonably be expected  to have, individually or in the aggregate, a Material Adverse Effect, the Loan Parties have at all  times complied with, and are in compliance with, all applicable laws, rules and regulations  respecting occupational health and safety, whether now existing or subsequently amended or  enacted, including, without limitation, the Occupational Safety & Health Act of 1970, 29 U.S.C.  Section 651 et seq. and the state analogies thereto, all as amended or superseded from time to time,  and any common law doctrine relating to worker health and safety.  ARTICLE VI    AFFIRMATIVE COVENANTS  Until the Commitments have expired or been terminated and the principal of and interest on each  Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired  or terminated or Cash Collateralized and all L/C Disbursements shall have been reimbursed, each Loan  Party covenants and agrees with the Administrative Agent and the Lenders that:  6.01 Financial Statements and Other Information.  The Loan Parties will furnish to the  Administrative Agent and each Lender:  (a) as soon as available and in any event within 90 days after the end of each fiscal  year of the Loan Parties:  





 






  98  (i) consolidated statements of operations, shareholders’ equity and cash flows  of the Borrower and its Subsidiaries for such fiscal year and the related consolidated  balance sheets of the Borrower and its Subsidiaries as at the end of such fiscal year, setting  forth in each case in comparative form the corresponding consolidated figures for the  preceding fiscal year; provided that the consolidated statements of operations,  shareholders’ equity and cash flows of the Borrower and its Subsidiaries and the  consolidated balance sheets of the Borrower and its Subsidiaries for any such fiscal year  shall present separately the results of the Core Ameresco Companies (taken as a whole) for  such fiscal year, and  (ii) an opinion of independent certified public accountants of recognized  national standing (without a “going concern” or like qualification or exception and without  any qualification or exception as to the scope of such audit) stating that the consolidated  financial statements referred to in the preceding clause (i) (other than those described in  the proviso thereto) fairly present in all material respects the consolidated financial  condition and results of operations of the Loan Parties and their Subsidiaries as at the end  of, and for, such fiscal year in accordance with GAAP.  (b) as soon as available and in any event within 45 days after the end of each of the  first three fiscal quarters:  (i) consolidated and consolidating statements of operations, shareholders’  equity and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and for  the period from the beginning of the respective fiscal year to the end of such fiscal quarter,  and the related consolidated and consolidating balance sheets of the Borrower and its  Subsidiaries as at the end of such period, setting forth in each case in comparative form the  corresponding consolidated figures for the corresponding period in the preceding fiscal  year, and the corresponding figures for the forecasts most recently delivered to the  Administrative Agent for such period; provided that the consolidated statements of  operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries and  the consolidated balance sheets of the Borrower and its Subsidiaries for any such fiscal  period shall present separately the results of the Core Ameresco Companies (taken as a  whole) for such fiscal period, and  (ii) a certificate of a Responsible Officer, which certificate shall state that said  consolidated financial statements referred to in the preceding clause (i) fairly present in all  material respects the consolidated financial condition and results of operations of the  Borrower and its Subsidiaries and that said consolidating financial statements referred to  in the preceding clause (i) fairly present the respective individual unconsolidated financial  conditions and results of operations of the Borrower and each Subsidiary, in each case in  accordance with GAAP, consistently applied, as at the end of, and for, such period (subject  to normal year-end audit adjustments and the omission of footnotes);  (c) as soon as available and in any event within (i) 45 days after the end of each  of  the first three fiscal quarters a Compliance Certificate duly executed by a Responsible Officer with  respect to the quarterly financial statements delivered pursuant to Section 6.01(b) above, and (ii)  within 90 days after the end of each fiscal year, a Compliance Certificate duly executed by a  Responsible Officer with respect to the annual financial statements delivered pursuant to Section  6.01(a) above, together with, in the case of each of clauses (i) and (ii) of this subsection (c), such  supporting financial information with respect to the Core Ameresco Companies as shall be  reasonably acceptable to the Administrative Agent;  





 






  99  (d) as soon as available and in any event within 60 days after the end of each fiscal  year of the Loan Parties, statements of forecasted consolidated and consolidating income and cash  flows for the Loan Parties for each fiscal month in such fiscal year and a forecasted consolidated  and consolidating balance sheet of the Loan Parties as of the last day of each fiscal month in such  fiscal year, together with supporting assumptions which the Borrower believed were reasonable  when made, all prepared in good faith in reasonable detail and consistent with the Loan Parties’  past practices in preparing projections and otherwise reasonably satisfactory in scope to the  Administrative Agent;  (e) promptly upon receipt thereof, copies of all management letters and accountants’  letters received by the Loan Parties;  (f) 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 which the  Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities  Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent  pursuant hereto;  (g) promptly, and in any event within five Business Days after receipt thereof by any  Loan Party or any Subsidiary thereof, to the extent permitted by applicable Law, copies of each  notice or other correspondence received from the SEC (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 Loan Party or any Subsidiary  thereof  (h) promptly following any request therefor, information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  applicable “know your customer” and anti-money-laundering rules and regulations, including,  without limitation, the Patriot Act.; and  (i) promptly following any request therefor, such other information regarding the  operations, business affairs and financial condition of the Loan Parties, or compliance with the  terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.  Documents required to be delivered pursuant to Section 6.01(a), (b) or (g) (to the extent any such documents  are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered,  shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or  provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule  1.01(a); or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet  website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,  third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower  shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to  the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given  by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent  and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents and  provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents. The  Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the  documents referred to above, and in any event shall have no responsibility to monitor compliance by the  Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for  requesting delivery to it or maintaining its copies of such documents.  





 






  100  The Borrower hereby acknowledges that (a) the Administrative Agent or any Affiliate thereof may, but  shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information  provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the  Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission  system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who  do not wish to receive material non-public information with respect to the Borrower or its Affiliates or the  respective securities of any of the foregoing, and who may be engaged in investment and other market- related activities with respect to such Persons’ securities.  The Borrower hereby agrees that, to the extent  that and, so long as, the Borrower is the issuer of any outstanding debt or Equity Interests that are registered  or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all  Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously  marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on  the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have  authorized the Administrative Agent, any Affiliate thereof, the L/C Issuer and the Lenders to treat such  Borrower Materials as not containing any material non-public information (although it may be sensitive  and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and  state securities laws (provided, however, that to the extent such Borrower Materials constitute confidential  information (as described in Section 11.07), they shall be treated as set forth in Section 11.07); (y) all  Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform  that is designated “Public Side Information;” and (z) the Administrative Agent and any Affiliate thereof  shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for  posting on a portion of the Platform not designated “Public Side Information.  Notwithstanding the  foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”  6.02 Notices of Material Events.   The Loan Parties will furnish to the Administrative Agent prompt written notice of the following:  (a) the occurrence of any Default;  (b) the filing or commencement of any action, suit or proceeding by or before any  arbitrator or Governmental Authority against or affecting any Loan Party or Affiliate that could  reasonably be expected to result in a Material Adverse Effect;  (c) the occurrence of any ERISA Event related to the Plan of any Loan Party or  knowledge after due inquiry of any ERISA Event related to a Plan of any other ERISA Affiliate  that, alone or together with any other ERISA Events that have occurred, could reasonably be  expected to result in liability of the Loan Parties in an aggregate amount exceeding $5,000,000;  (d) the occurrence of any of the following events: (i) the receipt by the Borrower of a  notice of any Contractor Event of Default from Southern California Edison under the SoCal  Contract; (ii) the termination of the SoCal Contract (other than at its maturity in accordance with  its terms); or (iii) any payment default in excess of $5,000,000 by Southern California Edison under  the SoCal Contract that has not been cured within 10 Business Days; and   (e) any other development (including, without limitation, any default by a Loan Party  under or dispute under a task order or other government contract) that results in, or could reasonably  be expected to result in, a Material Adverse Effect.  





 






  101  Each notice delivered under this Section 6.02 shall be accompanied by a statement of a Responsible Officer  setting forth the details of the event or development requiring such notice and any action taken or proposed  to be taken with respect thereto.  6.03 Existence; Conduct of Business.  Each Loan Party shall do or cause to be done all things  necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses,  permits, privileges and franchises material to the conduct of its business, except to the extent such failure  could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not  prohibit any merger, consolidation, liquidation, dissolution or any discontinuance or sale of such business  permitted under Section 7.04.  6.04 Payment of Obligations. Each Loan Party shall pay its obligations, including Tax  liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become  delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by  appropriate proceedings, (b) such Loan Party has set aside on its books adequate reserves with respect  thereto in accordance with GAAP, which reserves shall be acceptable to Agent, and (c) the failure to make  payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.  6.05 Maintenance of Properties; Insurance.  Each Loan Party shall (a) keep and maintain all  property material to the conduct of its business in good working order and condition, ordinary wear and  tear excepted, and (b) maintain insurance, with financially sound and reputable insurance companies, as  may be required by law and such other insurance in such amounts and against such risks as are customarily  maintained by companies engaged in the same or similar businesses operating in the same or similar  locations, including, without limitation, business interruption insurance.  Without limiting the generality of  the foregoing, the Loan Parties will maintain or cause to be maintained replacement value casualty  insurance on the Collateral under such policies of insurance and flood insurance on all Additional  Mortgaged Property in compliance with applicable flood laws and regulations, in each case with such  insurance companies, in such amounts, with such deductibles, and covering such terms and risks as are  standard and customary, available on commercially reasonable terms and at all times satisfactory to the  Administrative Agent in its commercially reasonable judgment.  The Loan Parties shall cause the Agent to  be named as lenders’ loss payable, loss payee or mortgagee, as its interest may appear, and/or additional  insured with respect of any such insurance providing liability coverage or coverage in respect of any  Collateral, and cause, unless otherwise agreed to by the Administrative Agent, each provider of any such  insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments  furnished to the Administrative Agent that it will give the Administrative Agent thirty (30) days prior  written notice before any such policy or policies shall be altered or cancelled (or ten (10) days prior notice  in the case of cancellation due to the nonpayment of premiums).  Annually, upon expiration of current  insurance coverage, the Loan Parties shall provide, or cause to be provided, to the Administrative Agent,  such evidence of insurance as required by the Administrative Agent, including, but not limited to: (i)  certified copies of such insurance policies, (ii) evidence of such insurance policies (including, without  limitation and as applicable, ACORD Form 28 certificates (or similar form of insurance certificate), and  ACORD Form 25 certificates (or similar form of insurance certificate)), (iii) declaration pages for each  insurance policy and (iv) lender’s loss payable endorsement if the Administrative Agent for the benefit of  the Secured Parties is not on the declarations page for such policy.  As requested by the Administrative  Agent, the Loan Parties agree to deliver to the Administrative Agent an Authorization to Share Insurance  Information.  6.06 Books and Records; Inspection Rights.  Each Loan Party shall keep proper books of  record and account in which entries are made of all dealings and transactions in relation to its business and  activities which fairly record such transactions and activities.  Each Loan Party shall permit any  representatives designated by the Administrative Agent or any Lender to visit and inspect its properties, to  





 






  102  examine and make extracts from its books and records, and to discuss its affairs, finances and condition  with its officers and independent accountants as frequently as the Administrative Agent deems appropriate  provided that all such visits shall be on reasonable prior notice, at reasonable times during regular business  hours of such Loan Party and, unless an Event of Default shall have occurred and be continuing, shall not  occur more than once per year, and provided further that during the continuance of any Event of Default,  the Administrative Agent and any of the Lenders may visit at any reasonable time.  The Borrower shall  reimburse the Administrative Agent for all examination and inspections costs, internal costs at the  customary rate charged by the Administrative Agent plus all out-of-pocket expenses incurred in connection  with such inspections, provided that, unless an Event of Default shall have occurred and be continuing,  such costs and expenses shall not exceed $7,000 during any period of twelve (12) consecutive months from  and after the Closing Date.  The Loan Parties, in consultation with the Administrative Agent, will arrange  for a meeting to be held at least once every year (and during the continuance of an Event of Default, more  frequently, if requested by the Administrative Agent or the Required Lenders) with the Lenders and the  Administrative Agent hereunder at which the business and operations of the Loan Parties are discussed.  6.07 Fiscal Year.  To enable the ready and consistent determination of compliance with the  covenants set forth in Section 7.10 hereof, the Loan Parties shall maintain their current fiscal year and  current method of determining the last day of the first three fiscal quarters in each fiscal year.  6.08 Compliance with Laws. Each Loan Party shall comply with the requirements of all Laws  and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such  instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in  good faith by appropriate proceedings diligently conducted; or (ii) the failure to comply therewith could  not reasonably be expected to have a Material Adverse Effect.  6.09 Use of Proceeds.  The proceeds of the Loans will be used only for (i) the refinancing of  existing indebtedness, including Indebtedness under the Prior Credit Agreement, (ii) fees and expenses  incurred in connection with the transactions contemplated by this Agreement, (iii) financing work under  the SoCal Contract, and (iv) for general corporate and working capital purposes of the Loan Parties and  their Subsidiaries consistent with the limitations in this Agreement.  No part of the proceeds of any Loan  will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations  of the FRB, including Regulations T, U and X.  6.10 Certain Obligations Respecting Subsidiaries; Additional Guarantors.  (a) Except as otherwise permitted hereunder, each Loan Party will, and will cause each  of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that the  percentage of the issued and outstanding shares of capital stock of any class or character owned by  it in any Subsidiary on the date hereof is not at any time decreased, other than by reason of transfers  to another Loan Party.  (b) Without limiting the obligation of the Borrower to obtain the consent of the  Administrative Agent in connection with any formation or acquisition of Subsidiaries not otherwise  permitted hereunder, in the event that any Person becomes a Subsidiary after the Closing Date, the  Borrower shall promptly, and in any event, if it is to be a Core Ameresco Company, within 30 days  of its formation or acquisition, (i) notify the Administrative Agent of its desire that such new  Subsidiary be a Core Ameresco Company, and (ii) provide to the Administrative Agent the  information required by Section 5.15 with respect to such Person, and if required by the  Administrative Agent, any certificate(s) and stock powers with respect to the Pledged Equity of  such Person.  If the Borrower desires such Person to be a Core Ameresco Company, and such  Person is not a Foreign Subsidiary, the Borrower shall, within 30 days of its formation or  





 






  103  acquisition, cause such Person to (x) become a Guarantor hereunder by delivering to the  Administrative Agent a Joinder Agreement and such other joinder documents as the Administrative  Agent shall reasonably require (including any update to the Perfection Certificate) and (y) deliver  to the Administrative Agent (A) documents of the types referred to in Sections 4.01(b) and 4.01(e)  and (B) if requested by the Administrative Agent in its reasonable discretion, 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 clause (x)), all in form and substance reasonably  satisfactory to the Administrative Agent.  If such Person is to become a Non-Core Company, the  Loan Parties will provide the information required by Section 5.15 with respect to such Person  under Section 5.15, at the time of delivery of the next Compliance Certificate.  6.11 ERISA.   Except where a failure to comply with any of the following, individually or in  the aggregate, would not or could not reasonably be expected to result in a Material Adverse Effect, (i) the  Loan Parties will maintain, and cause each ERISA Affiliate to maintain, each Plan in compliance with all  applicable requirements of ERISA and of the Code and with all applicable rulings and regulations issued  under the provisions of ERISA and of the Code and (ii) the Loan Parties will not and, to the extent  authorized, will not permit any of the ERISA Affiliates to (a) engage in any transaction with respect to any  Plan which would subject any Loan Party to either a civil penalty assessed pursuant to Section 502(i) of  ERISA or a tax imposed by Section 4975 of the Code, (b) fail to make full payment when due of all amounts  which, under the provisions of any Plan, any Loan Party or any ERISA Affiliate is required to pay as  contributions thereto, whether or not waived or (c) fail to make any payments to any Multiemployer Plan  that any Loan Party or any of the ERISA Affiliates may be required to make under any agreement relating  to such Multiemployer Plan or any law pertaining thereto  6.12 Environmental Matters; Reporting.  The Loan Parties will observe and comply with,  and cause each Subsidiary to observe and comply with all Environmental Laws to the extent non- compliance could reasonably be expected to have a Material Adverse Effect.  The Loan Parties will give  the Administrative Agent prompt written notice of any violation as to any Environmental Law by any Loan  Party and of the commencement of any judicial or administrative proceeding relating to Environmental  Laws (a) in which an adverse result would have a material adverse effect on any operating permits, air  emission permits, water discharge permits, hazardous waste permits or other environmental permits held  by any Loan Party, or (b) which will, or is likely to, have a Material Adverse Effect on such Loan Party or  which will require a material expenditure by such Loan Party to cure any alleged problem or violation.  6.13 Matters Relating to Additional Real Property Collateral.   (a) From and after the Closing Date, in the event that any Loan Party acquires any  Real Property Asset that could be a Material Owned Property, the Loan Party shall promptly notify  the Administrative Agent of such acquisition, and in the event that the Administrative Agent  determines that such (or any other) Real Property Asset should become an Additional Mortgaged  Property, the Borrower shall deliver, to the Administrative Agent, within 45 days (or such extended  period of time as agreed to by the Administrative Agent) after its receipt of such determination  from the Administrative Agent, fully executed and notarized Mortgages (“Additional Mortgages”),  in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering  the interest of the applicable Loan Party in such Additional Mortgaged Property, together with  mortgagee title insurance policies or commitments therefor, and copies of all surveys, deeds, title  exception documents, flood hazard certificates and other documents as the Administrative Agent  may reasonably require with respect to such Additional Mortgaged Property, including an update  to Schedule 1.01(d).  





 






  104  (b) From and after the Closing Date, in the event that any Loan Party enters into any  lease with respect to any Real Property Asset that could be a Material Leasehold Property, the  Borrower shall deliver to the Administrative Agent copies of the lease, and all amendments thereto,  between the Loan Party and the landlord or tenant, together with, if the Administrative Agent  determines the same to be a Material Leasehold Property and so requests, a Landlord Waiver with  respect thereto and where required by the terms of any lease, the consent of the mortgagee, ground  lessor or other party.  (c) If requested by the Administrative Agent, the Loan Parties shall permit an  independent real estate appraiser satisfactory to the Administrative Agent, upon reasonable notice,  to visit and inspect any Additional Mortgaged Property for the purpose of preparing an appraisal  of such Additional Mortgaged Property satisfying the requirements of all applicable laws and  regulations (in each case to the extent required under such laws and regulations as determined by  the Administrative Agent in its sole discretion).  (d) Notwithstanding anything contained in this Agreement to the contrary, no  Mortgage shall be executed and delivered with respect to any real property unless and until each  Lender (i) has received, at least twenty Business Days prior to such execution and delivery, a  completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard  Determination, and, if such Additional Mortgaged Property is located in a special flood hazard area,  (1) a notice to (and confirmations of receipt by) the Borrower as to the existence of a special flood  hazard and, if applicable, the availability of flood hazard insurance under the National Flood  Insurance Program and (2) evidence of applicable flood insurance, if available, in each case in such  form, on such terms and in such amounts as required by the Flood Insurance Laws or as otherwise  required by the Lenders.  All such documentation shall be reasonably satisfactory to the  Administrative Agent.  (e) From and after the date on which any Additional Mortgages have been executed  and delivered, any increase, extension or renewal of the Facility shall be subject to flood insurance  due diligence and flood insurance compliance reasonably satisfactory to all Lenders.  6.14 Anti-Corruption Laws.   Each of the Loan Parties shall conduct its business in compliance  in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act  2010 and other similar anti-corruption legislation in other jurisdictions and maintain policies and procedures  designed to promote and achieve compliance with such laws.  6.15 Further Assurances.  Promptly upon request by the Administrative Agent, or any Lender  through the Administrative Agent, (a) correct any material defect or error that may be discovered in any  Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute,  acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts,  deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through  the Administrative Agent, may reasonably require from time to time in order to (i) carry out more  effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by Applicable Law,  subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now  or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the  validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be  created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more  effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the  Secured Parties under any Loan Document or under any other instrument executed in connection with any  Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of  its Subsidiaries to do so.  





 






  105  ARTICLE VII    NEGATIVE COVENANTS  Until the Commitments have expired or terminated and the principal of and interest on each Loan  and all fees payable hereunder have been paid in full and all Letters of Credit shall have expired or  terminated or Cash Collateralized and all L/C Disbursements shall have been reimbursed, each Loan Party  covenants and agrees with the Administrative Agent and the Lenders that:  7.01 Indebtedness.    (a) The Loan Parties will not, and will not permit any Core Foreign Subsidiary to,  create, incur, assume or permit to exist any Indebtedness, except:  (i) Indebtedness created hereunder;  (ii) Existing Indebtedness on the Closing Date which is set forth in  Schedule 7.01 and has been designated on such schedule as Indebtedness that will remain  outstanding following the funding of the initial Loans, and any extension, renewal,  refunding or replacement of any such Indebtedness that does not increase the principal  amount thereof (except in an amount equal to fees and premiums reserved in connection  therewith);  (iii) Intercompany Indebtedness among the Loan Parties;  (iv) other Indebtedness incurred after the Closing Date (determined on a  consolidated basis without duplication in accordance with GAAP) consisting of Financing  Lease Obligations (but subtracting therefrom, for avoidance of doubt, financing leases  attributable to Non-Core Companies) and/or secured by Liens permitted under  Section 7.02(h), in an aggregate principal amount at any time outstanding not in excess of  $15,000,000 less the aggregate outstanding principal amount of Indebtedness incurred  pursuant to Section 7.01(a)(viii);  (v) Subordinated Indebtedness;  (vi) Guarantees permitted under Section 7.03;  (vii) Indebtedness incurred by any Loan Party or Core Foreign Subsidiary  under an Energy Conservation Project Financing (including, without limitation,  Indebtedness incurred by the Loan Parties under an Energy Conservation Project Financing  existing as of the Closing Date and set forth on Schedule 7.01 attached hereto) in an  aggregate principal amount outstanding at any time not in excess of $650,000,000;  (viii) Other unsecured Indebtedness in an aggregate principal amount at any  time outstanding not in excess of $15,000,000 less the aggregate outstanding principal  amount of Indebtedness incurred pursuant to Section 7.01(a)(iv);  (ix) Indebtedness of the Core Canadian Subsidiaries to any Loan Party in an  aggregate principal amount not to exceed $35,000,000 outstanding at any time;  





 






  106  (x) Indebtedness of the Core Foreign Subsidiaries (other than any Core  Canadian Subsidiary) to any Loan Party in an aggregate principal amount not to exceed  $30,000,000 outstanding at any time;  (xi) Hedging Agreements with a Lender or an Affiliate of a Lender or  permitted by Section 7.05(b); and  (xii) Performance and surety bonds entered into by any Core Ameresco  Company in the ordinary course of business.  (b) The Loan Parties will not permit the Non-Core Companies to incur or remain  outstanding any indebtedness under GAAP other than (x) Non-Core Project Financings, (y)  intercompany Indebtedness reflecting investments permitted under Section 7.05(a)(vi) and (z) other  Indebtedness not to exceed $1,000,000 in the aggregate for all Non-Core Companies at all times  outstanding.  7.02 Liens.  The Loan Parties will not, and will not permit any Core Foreign Subsidiary to,  create, incur, assume or permit to exist any Lien on any Property or asset now owned or hereafter acquired  by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any  thereof, except (the following being called “Permitted Liens”):  (a) Liens created hereunder or under the other Loan Documents;  (b) any Lien on any property or asset of any Loan Party or Core Foreign Subsidiary  existing on the date hereof and set forth in Schedule 7.01 (excluding, however, following the  making of the initial Loans hereunder, the Liens in favor of any Person other than the  Administrative Agent securing Indebtedness not designated on said schedule as Indebtedness to  remain outstanding following the funding of the initial Loans), provided that (i) such Lien shall not  apply to any other property or asset of any Loan Party or Core Foreign Subsidiary and (ii) such  Lien shall secure only those obligations which it secures on the date hereof and extensions,  renewals and replacements thereof that do not increase the outstanding principal amount thereof;  (c) Liens imposed by any Governmental Authority for taxes, assessments or charges  not yet delinquent or (in the case of property taxes and assessments not exceeding $250,000 in the  aggregate more than 90 days overdue) which are being contested in good faith and by appropriate  proceedings if adequate reserves with respect thereto are maintained on the books of the applicable  Loan Party or Core Foreign Subsidiary in accordance with GAAP and which reserves shall be  acceptable to the Administrative Agent;  (d) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or  other like Liens, and vendors’ Liens imposed by statute or common law not securing the repayment  of Indebtedness, arising in the ordinary course of business which are not overdue for a period of  more than 90 days or which are being contested in good faith and by appropriate proceedings and  Liens securing judgments (including, without limitation, pre-judgment attachments) but only to the  extent for an amount and for a period not resulting in an Event of Default under Section 8.01(j)  hereof;  (e) pledges or deposits under worker’s compensation, unemployment insurance and  other social security legislation and pledges or deposits to secure the performance of bids, tenders,  trade contracts (other than for borrowed money), leases (other than financing leases), utility  





 






  107  purchase obligations, statutory obligations, surety and appeal bonds, performance bonds and other  obligations of a like nature incurred in the ordinary course of business;  (f) easements, rights-of-way, restrictions and other similar encumbrances incurred in  the ordinary course of business and encumbrances consisting of zoning restrictions, easements,  licenses, restrictions on the use of Property or minor imperfections in title thereto which, in the  aggregate, are not material in amount, and which do not, in the aggregate, materially detract from  the value of the Property of any Loan Party or Core Foreign Subsidiary or materially interfere with  the ordinary conduct of the business of any Loan Party or Core Foreign Subsidiary;  (g) Liens consisting of bankers’ liens and rights of setoff, in each case, arising by  operation of law, and Liens on documents presented in letter of credit drawings;  (h) Liens on fixed or capital assets, including real or personal property, acquired,  constructed or improved by any Loan Party or Core Foreign Subsidiary, provided that (A) such  Liens secure Indebtedness (including Financing Lease Obligations) permitted by  Section 7.01(a)(iv), (B) such Liens and the Indebtedness secured thereby are incurred prior to or  within 90 days after such acquisition or the completion of such construction or improvement or  were in effect at the time the applicable Loan Party or Core Foreign Subsidiary acquired the assets  or stock, (C) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing  or improving such fixed or capital assets, and (D) such security interests shall not apply to any other  property or assets of the Loan Parties or Core Foreign Subsidiaries;  (i) Liens on Equity Interests in a Non-Core Company held by any Loan Party or Core  Foreign Subsidiary; provided that such Liens do not encumber any other property or assets of any  such Loan Parties or Core Foreign Subsidiaries; and  (j) Liens on Energy Conservation Financing Collateral in connection with an Energy  Conservation Financing and Liens securing Indebtedness permitted under Section 7.01(a)(vii);  provided that, in each case, such Liens do not encumber any other property or assets of any of the  Loan Parties or Core Foreign Subsidiaries.  7.03 Contingent Liabilities.  The Loan Parties will not, and will not permit any Core Foreign  Subsidiary to, Guarantee the Indebtedness or other obligations of any Person, or Guarantee the payment of  dividends or other distributions upon the stock of, or the earnings of, any Person, except:  (a) endorsements of negotiable instruments for deposit or collection or similar  transactions in the ordinary course of business;  (b) Guarantees and letters of credit in effect on the date hereof which are disclosed in  Schedule 7.01, and any replacements thereof in amounts not exceeding such Guarantees;  (c) Guarantees of any Indebtedness permitted under Sections 7.01(a)(i), (a)(iii),  (a)(iv), (a)(v), and (a)(vii);  (d) Guarantees of any Indebtedness permitted under Section 7.01(a)(ii) (other than  Indebtedness of any Non-Core Company);  (e) obligations in respect of Letters of Credit;  





 






  108  (f) any Construction Completion and Cost Overrun Guaranty delivered by any Loan  Party or Core Foreign Subsidiary in connection with a Non-Core Project;  (g) Guarantees of obligations of Foreign Subsidiaries and Mentoring Joint Ventures  (including indemnities for surety and performance bonds) with respect to contracts entered into in  the ordinary course of business of such Foreign Subsidiary or Mentoring Joint Venture;  (h) any Non-Core Project Guaranty delivered by any Loan Party or any Core Foreign  Subsidiary in connection with a Non-Core Project, provided, however, that:  (i) one or more of the Core Ameresco Companies or Non-Core Companies  shall control the operation and maintenance of the Non-Core Project during the term of the  renewable energy purchase or infrastructure agreement with respect to such Non-Core  Project; and  (ii) in connection with the delivery of any Non-Core Project Guaranty, the  Borrower shall deliver to the Administrative Agent (A) contemporaneously with the  delivery of such Non-Core Project Guaranty, a certificate executed by the Chief Financial  Officer of the Borrower certifying (based upon such consultation with the Borrower’s  independent certified public accountants as the Borrower shall reasonably deem  appropriate) that, in accordance with GAAP, such Non-Core Project Guaranty will not  result in the accrual of a liability upon the consolidated balance sheet of the Core Ameresco  Companies for the fiscal period during which such Non-Core Project Guaranty is delivered;  (B) a copy of such Non-Core Project Guaranty and all other documents related thereto; and  (C) such other information or reports as the Administrative Agent may reasonably request  with respect to such Non-Core Project Guaranty;  (i) Guarantees by a Core Ameresco Company entered into in connection with a  Permitted Acquisition for the payment of any portion of the purchase price which is contingent on  the earnings of the target of such Permitted Acquisition;  (j) Guarantees by a Core Foreign Subsidiary for which the sole recourse is a Lien  permitted by Section 7.02(i); and  (k) Guarantees of Indebtedness of Mentoring Joint Ventures, provided that such  Indebtedness would have been permitted by Section 7.01(a)(vii) if it were Indebtedness of a Loan  Party.  7.04 Fundamental Changes; Asset Sales; Permitted Acquisitions.    (a) No Loan Party will enter into any transaction of merger or consolidation or  amalgamation or Division or liquidate, wind up or dissolve itself (or suffer any liquidation or  dissolution).  No Loan Party will acquire any business or property from, or Equity Interests in, or  be a party to any acquisition of, any Person except for purchases of property to be used in the  ordinary course of business, Permitted Acquisitions, Investments permitted under Section 7.05 and  Capital Expenditures.  No Loan Party will form or acquire any Subsidiary, other than a Non-Core  Company or a Subsidiary formed or acquired in connection with a Permitted Acquisition, without  the express prior written consent of the Administrative Agent, unless such Subsidiary becomes a  Core Ameresco Company pursuant to Section 6.10.  





 






  109  (b) No Loan Party will convey, sell, lease, transfer or otherwise dispose (including any  Disposition) of, in one transaction or a series of transactions, any part of its business or property,  whether now owned or hereafter acquired (including, without limitation, receivables and leasehold  interests).  (c) Notwithstanding the foregoing provisions of this Section 7.04:  (i) any Loan Party may be merged or combined with or into any other Loan  Party (provided that if such merger involves the Borrower, (x) the Borrower shall be the  surviving entity and (y) no Change of Control shall occur);  (ii) any Loan Party may sell, convey, lease, transfer or otherwise dispose of  any or all of its assets or property (upon voluntary liquidation or otherwise) to any other  Loan Party;  (iii) any Loan Party or Core Canadian Subsidiary may convey, sell, transfer or  otherwise dispose of a portion of the outstanding capital stock of any Core Canadian  Subsidiary, so long as no Change of Control shall result therefrom;  (iv) any Loan Party may sublease real property to the extent such sublease  would not interfere with the operation of the business of the Loan Parties;  (v) any Loan Party may sell, assign, transfer or otherwise dispose of obsolete  or worn out property or immaterial assets, whether now owned or hereafter acquired, in the  ordinary course of business, and any property no longer used or useful in the business of  the Loan Parties;  (vi) any Loan Party may sell, transfer or otherwise dispose of inventory or  other assets in the ordinary course of business, including the sale of electricity, gas, solar  and other renewable energy credits and other environmental attributes in the ordinary  course of business, and including the movement of allocations of renewable energy credits  amongst utilities;  (vii) any Loan Party may sell, transfer or otherwise dispose of equipment to the  extent that (i) such equipment is exchanged for credit against the purchase price of similar  replacement equipment, (ii) the proceeds of such disposition are reasonably promptly  applied to the purchase price of such replacement equipment, or (iii) such equipment was  acquired by, and transferred or sold in the ordinary course of business by such Loan Party,  to satisfy its obligations under any construction, operation or similar contract entered into  with any third party or Non-Core Company;  (viii) any Loan Party may sell, transfer or otherwise dispose of a receivable and  the related equipment of an Energy Conservation Project in the ordinary course of business  for fair value;  (ix) any Loan Party may sell, transfer, assign or otherwise dispose of a  receivable and related equipment in connection with an Energy Conservation Project  Financing);  (x) any Loan Party may sell receivables for collection;  





 






  110  (xi) any Loan Party may sell cash equivalents;  (xii) any Loan Party may sell, transfer assign or otherwise dispose of the assets  of any Non-Core Project or the Equity Interests of a Non-Core Company including the  transfer or assignment of the assets of a Non-Core Project to a Non-Core Company;  (xiii) any Loan Party may make other asset sales resulting in Net Cash Proceeds  not to exceed $5,000,000, individually, or $10,000,000 in the aggregate after the Closing  Date; and  (xiv) any Loan Party may acquire Equity Interests in, or form, a Mentoring Joint  Venture.  (d) in addition to the formation and acquisition of Non-Core Companies permitted  pursuant to subsection (a) of this Section 7.04 and subject to Sections 7.01, 7.02 and 7.05 and the  third sentence of Section 7.04(a), the Loan Parties may acquire all or substantially all of the  business and assets of any corporation, partnership, limited liability company, or other entity  located in and organized under the laws of the United States or any state thereof (“Permitted  Acquisitions”), subject to satisfaction of the following conditions:  (i) the business or assets so acquired shall be located in the United States and  in the same or a substantially similar line of business as that of the Loan Parties;  (ii) both immediately prior to and after giving effect to such Permitted  Acquisition on a Pro Forma Basis, incorporating such pro-forma assumptions as are  satisfactory to the Administrative Agent in its reasonable discretion, (A) the Loan Parties  shall be in compliance with the financial covenant set forth in Section 7.10(b) hereof, and  (B) the Core Leverage Ratio shall not exceed 3.00 to 1.00;  (iii) the assets so acquired shall be transferred free and clear of any Liens (other  than Liens permitted by Section 7.02) and no Indebtedness shall be incurred, guaranteed,  assumed or combined except to the extent otherwise permitted by Section 7.01;  (iv) to the extent requested by the Administrative Agent, the Administrative  Agent shall have received Lien searches reasonably satisfactory to the Administrative  Agent with respect to the assets being acquired, provided, that such Lien searches may be  delivered within fifteen days after the closing for an acquisition for which the aggregate  purchase price is less than $10,000,000;  (v) the Administrative Agent shall have received perfected Liens (subject only  to Liens permitted by Section 7.02) on substantially all of the assets being acquired in such  Permitted Acquisition, provided that such Liens shall not be required on any Property if  (A) such Liens are prohibited pursuant to any agreement binding on the Person owning  such Property and (B) the failure to obtain such Liens is not reasonably likely to have a  Material Adverse Effect on the rights of and remedies available to the Lender, and provided  further, that such perfected Liens may be delivered within fifteen days after the closing for  an acquisition for which the aggregate purchase price is less than $10,000,000;  (vi) to the extent requested by the Administrative Agent, the Administrative  Agent shall have received an opinion of counsel in each applicable jurisdiction reasonably  satisfactory to it to the effect that the Liens granted pursuant to this Agreement are  





 






  111  perfected security interests in such assets and as to such other matters as the Administrative  Agent may reasonably require, provided, that such opinion of counsel may be delivered  within fifteen days after the closing for an acquisition for which the aggregate purchase  price is less than $10,000,000;  (vii) in connection with such Permitted Acquisition, the Loan Parties shall  deliver to the Administrative Agent (A) a copy of the purchase agreement pursuant to  which such Permitted Acquisition will be consummated; (B) a copy of each existing  material agreement relating to the assets to be acquired in such Permitted Acquisition and  which is to be in effect after the consummation of such Permitted Acquisition; (C) a  Compliance Certificate calculating compliance (as of the last day of the then most recently  ended fiscal quarter) with the requirements of Section 7.04(d)(ii) on a Pro Forma Basis,  assuming such acquisition had occurred prior to the first day of the earliest fiscal quarter  included in the applicable test period for calculating such compliance; (D) the Loan Parties  shall use best efforts to provide such other information or reports as the Lender may  reasonably request with respect to such Permitted Acquisition; (E) to the extent available  to the Loan Parties, historical financial statements (for the prior three fiscal years provided  that if such statements are not available for the prior three fiscal years, historical financial  statements for not less than the prior four fiscal quarters) of the entity whose assets are  being acquired; and (F) if the Borrower is acquiring any interest in real property, and if  required by the Administrative Agent, reports and other information in form, scope and  substance reasonably satisfactory to the Administrative Agent and prepared by  environmental consultants reasonably satisfactory to the Administrative Agent, concerning  any environmental hazards or liabilities to which any Loan Party is likely to be subject with  respect to such acquired real property;  (viii) immediately prior to such Permitted Acquisition no Default shall have  occurred and be continuing and after giving effect to such Permitted Acquisition, no  Default shall have occurred and be continuing and no Material Adverse Effect shall result;  and  (ix) such acquisition shall be consensual and shall have been approved by the  board of directors or comparable governing body of the business so acquired.  7.05 Investments; Hedging Agreements.  (a) The Loan Parties will not make or permit to remain outstanding any Investment,  except:  (i) Investments consisting of Indebtedness permitted by Section 7.01,  Guarantees permitted by Section 7.03, and capital contributions by any Loan Party to (A)  any other Loan Party, (B) any Core Canadian Subsidiary, up to an amount which when  added to the Investments consisting of Indebtedness of such Core Canadian Subsidiary  permitted by Section 7.01(a)(ix), does not exceed $35,000,000, and (C) any Core Foreign  Subsidiary (other than any Core Canadian Subsidiary) up to an amount which when added  to the Investments consisting of Indebtedness of such Core Foreign Subsidiary permitted  by Section 7.01(a)(x), does not exceed $30,000,000;  (ii) Permitted Investments;  (iii) Permitted Acquisitions;  





 






  112  (iv) Investments existing on the Closing Date and set forth in Schedule 7.05  hereto;  (v) Checking and deposit accounts with banks used in the ordinary course of  business maintained with depository institutions that have executed Control Agreements;  (vi) Investments by the Loan Parties in Non-Core Companies; provided, that  at the time of each such Investment and immediately after giving effect thereto, (A) no  Event of Default shall have occurred and be continuing, (B) the Loan Parties shall be in  Pro Forma Compliance with all financial covenants set forth in Section 7.10; and (C) such  Investments shall not in the aggregate, at any time, exceed forty-nine percent (49%) of the  Borrower’s consolidated stockholders equity;  (vii) Investments by the Loan Parties in Mentoring Joint Ventures that shall not  in the aggregate, at any time, exceed $10,000,000 outstanding; and  (viii) other Investments not described above in an aggregate amount not to  exceed $10,000,000.  (b) The Loan Parties will not enter into any Hedging Agreement, other than as required  or permitted hereunder and Hedging Agreements entered into in the ordinary course of business  with the prior written consent of the Administrative Agent to hedge or mitigate risks to which the  Loan Parties are exposed in the conduct of their business or the management of their liabilities.  For  avoidance of doubt, the Loan Parties may from time to time enter into contracts with Non-Core  Companies to purchase power, gas, environmental attributes or other assets, even if such contracts  might constitute a commodity price hedging arrangement, if such arrangements are permitted under  Section 7.05(a) or Section 7.07.  7.06 Restricted Junior Payments.  Except as otherwise permitted by this Agreement, the Loan Parties will not declare or make any  Restricted Junior Payment at any time; provided, however, that:  (a) any Subsidiary of any Core Ameresco Company may make Restricted Junior  Payments to such Core Ameresco Company and any Subsidiary of the Borrower may make  Restricted Junior Payments to the Borrower;  (b) so long as no Default or Event of Default has occurred and is continuing and no  Default or Event of Default shall be caused thereby, the Borrower may redeem or purchase the  capital stock or Equity Rights of any employee, officer or director of any Loan Party for aggregate  cash consideration not to exceed $1,000,000 in any fiscal year;  (c) so long as no Default or Event of Default shall have occurred and be continuing  and no Default or Event of Default shall be caused thereby, the Borrower may declare and pay cash  dividends, provided, that (i) such payments shall be made only during the period commencing not  earlier than 10 days after and ending not later than 90 days after, the date of delivery of the quarterly  financial statements for the previous fiscal quarter required to be delivered by the Loan Parties  pursuant to Section 6.01(a) or 6.01(b) hereof, together with the Compliance Certificate required to  be delivered pursuant to Section 6.01(c) hereof, and (ii) the Loan Parties shall have delivered to the  Administrative Agent evidence that after giving effect to such payment, the Loan Parties (A) would  have been in compliance with the financial covenants set forth in Section 7.10 for the period of four  





 






  113  fiscal quarters ended immediately before such payment if such payment had been made during such  four fiscal quarters, and (B) shall be in projected pro-forma compliance with the financial covenants  set forth in Section 7.10 hereof for the period of four fiscal quarters occurring immediately after  such payment;  (d) the Borrower may make repurchases of its Equity Interests in an aggregate amount  under this paragraph (d) up to $15,000,000 after the Closing Date so long as immediately before  and immediately after such repurchase on a Pro Forma Basis, incorporating such pro-forma  assumptions as are satisfactory to the Administrative Agent in its reasonable discretion, (i) no  Default or Event of Default shall have occurred and be continuing, and (ii)(A) the Loan Parties  shall be in compliance with the financial covenant set forth in Section 7.10(b), and (B) the Core  Leverage Ratio shall not exceed 3.00 to 1.00;  (e) any Subsidiary of the Borrower may redeem, retire, purchase or otherwise acquire  an Equity Interest of such Subsidiary with the proceeds of an Investment in such Subsidiary that is  permitted by Section 7.05; and  (f) so long as no Default under Section 8.01(a)(ii) or Event of Default shall have  occurred and be continuing and no Event of Default shall be caused thereby, the Loan Parties may  make regularly scheduled payments of interest but no principal in respect of Subordinated  Indebtedness on the dates and in the amounts set forth in the applicable Subordinated Debt  Documents.  7.07 Transactions with Affiliates.  Except as expressly permitted by this Agreement, the Loan  Parties will not directly or indirectly (a) make any Investment in an Affiliate; (b) transfer, sell, lease, assign  or otherwise dispose of any property to an Affiliate; (c) merge into or consolidate with an Affiliate, or  purchase or acquire property from an Affiliate; or (d) enter into any other transaction directly or indirectly  with or for the benefit of an Affiliate (including, without limitation, guarantees and assumptions of  obligations of an Affiliate); provided that:  (i) any Affiliate who is an individual may serve as a director, officer,  employee or consultant of any Loan Party, receive reasonable compensation and  indemnification for his or her services in such capacity and benefit from Permitted  Investments to the extent specified in clause (e) of the definition thereof;  (ii) the Loan Parties may engage in and continue the transactions with or for  the benefit of Affiliates which are described in Schedule 7.07 or are referred to in  Section 7.06 (but only to the extent specified in such section); and  (iii) the Loan Parties may engage in transactions with Affiliates in the ordinary  course of business on terms which are not materially less favorable to the Loan Parties than  those likely to be obtained in an arms’ length transaction between a Loan Party and a non- affiliated third party.  7.08 Restrictive Agreements.  The Loan Parties will not directly or indirectly, enter into, incur  or permit to exist any agreement or other arrangement (other than this Agreement) that prohibits, restricts  or imposes any condition upon (a) the ability of any Loan Party to create, incur or permit to exist any Lien  upon any of its property or assets, except Permitted Liens, or (b) the ability of any Loan Party that is a  Subsidiary of another Loan Party to pay dividends or other distributions with respect to any shares of its  Equity Interests or to make or repay loans or advances to any other Loan Party or to Guarantee Indebtedness  of any other Loan Party; provided that (i) the foregoing shall not apply to restrictions and conditions  





 






  114  imposed by law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions  existing on the date hereof identified on Schedule 7.08 (but shall apply to any extension or renewal of, or  any amendment or modification expanding the scope of, any such restriction or condition), (iii) the  foregoing shall not apply to restrictions applicable to a Subsidiary at the time it was acquired, (iv) the  foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the  sale of stock or assets of a Subsidiary of a Loan Party pending such sale, provided such restrictions and  conditions apply only to the Subsidiary (or to the Loan Party with respect to the equity in such Subsidiary)  that is to be sold and such sale is permitted hereunder, (v) the foregoing shall not apply to customary  restrictions in a joint venture agreement permitted hereunder or other Permitted Liens contained therein,  (vi) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement  relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only  to the property or assets securing such Indebtedness, and (vii) clause (a) of the foregoing shall not apply to  customary provisions in leases and other contracts restricting the assignment thereof.  7.09 Sale-Leaseback Transactions.  No Loan Party will directly or indirectly, enter into any  arrangements with any Person whereby such Loan Party shall sell or transfer (or request another Person to  purchase) any property, real, personal or mixed, used or useful in its business, whether now owned or  hereafter acquired, and thereafter rent or lease such property from any Person.  7.10 Certain Financial Covenants.    (a) Total Funded Debt to EBITDA Ratio.  The Loan Parties shall not permit the Core  Leverage Ratio as of the end of each fiscal quarter (i) ending on March 31, 2022, to exceed 4.50 to  1.00, (ii) ending on June 30, 2022, to exceed 4.25 to 1.00, (iii) ending on September 30, 2022 or  December 31, 2022, to exceed 4.00 to 1.00, and (iv) for any quarter ending thereafter, to exceed  3.50 to 1.00.  (b) Debt Service Coverage Ratio.  The Loan Parties shall not permit the ratio of (a)  Cash Flow of the Core Ameresco Companies, to (b) Debt Service of the Core Ameresco Companies  as of the end of each fiscal quarter to be less than 1.50 to 1.00.  7.11 Lines of Business.  The Loan Parties and all Subsidiaries of the Loan Parties will not  engage to any substantial extent in any line or lines of business activity other than (i) the types of businesses  engaged in by the Loan Parties as of the Closing Date and businesses substantially related or complementary  thereto , and (ii) such other lines of business as may be consented to by the Required Lenders and the  Administrative Agent, which consents shall not be unreasonably withheld or delayed.  7.12 Other Indebtedness.  The Loan Parties will not purchase, redeem, retire or otherwise  acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for the purchase,  redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the  principal of or interest on, or any other amount owing in respect of any Subordinated Indebtedness, except,  to the extent permitted by Section 7.06.  7.13 Modifications of Certain Documents.  The Loan Parties will not consent to any  modification, supplement or waiver of any of the provisions of any documents or agreements evidencing  or governing any Subordinated Indebtedness or any other Existing Debt in a manner that could reasonably  be expected to be materially adverse to the Lenders.  7.14 Sanctions.  No Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly,  use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make  available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities  





 






  115  of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the  subject of Sanctions, or in any other manner that will result in a violation by any Person (including any  Person participating in the transaction, whether as Lender, Administrative Agent, L/C Issuer, Swing Line  Lender, or otherwise) of Sanctions.  7.15 Anti-Corruption Laws.  No Loan Party shall, nor shall it permit any Subsidiary to, directly  or indirectly, use any Credit Extension or the proceeds of any Credit Extension for any purpose which  would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other  similar anti-corruption legislation in other jurisdictions.  ARTICLE VIII    EVENTS OF DEFAULT AND REMEDIES  8.01 Events of Default.  The occurrence of any of the following shall constitute an event of  default (each, an “Event of Default”):  (a) the Loan Parties shall fail to pay to the Administrative Agent, the L/C Issuer, or  the Lenders, (i) any principal of any Loan when the same shall become due and payable, whether  at the due date thereof or at a date fixed for prepayment thereof, by acceleration of such due or  prepayment date, or otherwise or (ii) any interest or fees in respect of any Loan or any  Reimbursement Obligation in respect of any L/C Disbursement or any other Obligation of the Loan  Parties to the Administrative Agent, the L/C Issuer, or the Lenders within three (3) Business Days  after the same shall become due and payable, whether at the due date thereof or at a date fixed for  prepayment thereof, by acceleration of such due or prepayment date, or otherwise;  (b) any representation or warranty made or deemed made by or on behalf of any Loan  Party or any Subsidiary in or in connection with this Agreement, any of the other Loan Documents  or any amendment or modification hereof or thereof, or in any report, certificate, financial statement  or other document furnished pursuant to or in connection with this Agreement, any of the other  Loan Documents or any amendment or modification hereof or thereof, shall prove to have been  incorrect in any material respect when made or deemed made;  (c) the Loan Parties (i) shall fail to observe or perform any covenant, condition or  agreement contained in Sections 6.01(a), (b), (c) or (d), 6.02(a), 6.05, 6.06, 6.08, 6.09, 6.10, or in  Article VII (it being expressly acknowledged and agreed that any Event of Default resulting from  the failure of the Loan Parties at any measurement date to satisfy any financial covenant set forth  in Section 7.10 shall not be deemed to be “cured” or remedied by the Loan Parties’ satisfaction of  such financial covenant at any subsequent measurement date) or (ii) shall fail to observe or perform  any other covenant, condition or agreement contained in Sections 6.03, 6.04, 6.07, 6.11, 6.12 or  6.13 and such failure described in this clause (ii) shall continue unremedied for a period of 30 days  after the earlier of (x) actual knowledge by an officer of any Loan Party or (y) notice thereof from  the Administrative Agent (given at the request of any Lender) to the Loan Parties;  (d) the Loan Parties shall fail to observe or perform any covenant, condition or  agreement contained in this Agreement (other than those specified in clauses (a), (b) or (c) of this  Section 8.01) or any other Loan Document, and such failure shall continue unremedied for a period  of 30 days after notice thereof from the Administrative Agent (at the request of any Lender) to the  Loan Parties;  





 






  116  (e) the Loan Parties shall fail to make any payment (whether of principal, interest or  otherwise and regardless of amount) in respect of any Material Indebtedness or any Material Rental  Obligation, when and as the same shall become due and payable, after giving effect to any grace  period with respect thereto;  (f) any event or condition occurs that results in any Material Indebtedness of any Loan  Party becoming due prior to its scheduled maturity or that enables or permits (with or without the  giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or  any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to  require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled  maturity, other than any secured Indebtedness that becomes due on the sale of the assets securing  such Indebtedness in a disposition permitted, or otherwise consented to, under Section 7.04;   (g) an involuntary proceeding shall be commenced or an involuntary petition shall be  filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party or any  Material Core Canadian Subsidiary or its debts, or of a substantial part of its assets, under any  Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in  effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar  official for any Loan Party or any Material Core Canadian Subsidiary or for a substantial part of its  assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or  an order or decree approving or ordering any of the foregoing shall be entered;  (h) any Loan Party or any Material Core Canadian Subsidiary shall (i) voluntarily  commence any proceeding or file any petition seeking liquidation, reorganization or other relief  under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate  manner, any proceeding or petition described in clause (g) of this Article, (iii) apply for or consent  to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for  any Loan Party or any Material Core Canadian Subsidiary or for a substantial part of its assets, (iv)  file an answer admitting the material allegations of a petition filed against it in any such proceeding,  (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of  effecting any of the foregoing;  (i) any Loan Party or any Material Core Canadian Subsidiary shall become unable,  admit in writing or fail generally to pay its debts as they become due;  (j) a final judgment or judgments for the payment of money in excess of $10,000,000  in the aggregate (exclusive of judgment amounts fully covered by insurance where the insurer has  admitted liability in respect of such judgment), shall be rendered by one or more courts,  administrative tribunals or other bodies having jurisdiction against any Loan Party and the same  shall not be discharged (or provision shall not be made for such discharge), bonded, or a stay of  execution thereof shall not be procured, within 60 days from the date of entry thereof and the  relevant Loan Party shall not, within said period of 60 days, or such longer period during which  execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to  be stayed during such appeal;  (k) an ERISA Event shall have occurred that, when taken together with all other  ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse  Effect;  (l) there shall occur any Change of Control;  





 






  117  (m) any of the following shall occur: (i) the Liens created hereunder or under the other  Loan Documents shall at any time (other than by reason of the Administrative Agent relinquishing  such Lien) cease in any material respect to constitute valid and perfected Liens on the Collateral  intended to be covered thereby; (ii) except for expiration in accordance with its respective terms,  any Loan Document shall for whatever reason be terminated, or shall cease to be in full force and  effect; or (iii) the enforceability of any Loan Document shall be contested by any Loan Party;  (n) there shall occur any material loss theft, damage or destruction of any Collateral  not fully covered (subject to such reasonable deductibles as the Administrative Agent shall have  approved) by insurance;  (o) at any time before the Term Commitments of the Term Lenders under the Delayed  Draw Term A Facility have terminated and the Delayed Draw Term A Loans have been paid in  full, (i) a Contractor Event of Default (A) has been called by Southern California Edison, and (B)  results in Southern California Edison enforcing remedies to terminate the SoCal Contract, which  termination would be reasonably likely to result in a Material Adverse Effect on the Borrower or  its ability to make payments under the Credit Facility; or (ii) a payment default in excess of  $5,000,000 by Southern California Edison under the SoCal Contract, where the Borrower has not  consulted with the Administrative Agent on steps toward enforcement, within ten (10) Business  Days of such occurrence, or where such payment default is not cured or enforcement under the  SoCal Contract has not commenced within thirty (30) Business Days of such occurrence; or  (p) any Guarantor shall assert that its obligations under any Loan Document shall be  invalid or unenforceable.   Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan  Documents, then such Default will continue to exist until it either is cured (to the extent specifically  permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative  Agent (with the approval of Required Lenders (in their sole discretion)) as determined in accordance with  Section 11.01; and once an Event of Default occurs under the Loan Documents, then such Event of Default  will continue to exist until it is expressly waived by the Required Lenders or by the Administrative Agent  with the approval of the Required Lenders, as required hereunder in Section 11.01.  8.02 Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the  Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any  or all of the following actions:  (a) declare the Commitment of each Lender to make Loans and any obligation of the  L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and  obligation shall be terminated;  (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document to be immediately due and payable, without presentment, demand, protest or other notice  of any kind, all of which are hereby expressly waived by the Borrower;  (c) notify the Borrower that the outstanding principal of the Loans shall bear interest  at the Default Rate, and thereupon the outstanding principal of the Loans shall bear interest at the  Default Rate;   





 






  118  (d) require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the Minimum Collateral Amount with respect thereto); and  (e) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies  available to it, the Lenders and the L/C Issuer under the Loan Documents or Applicable Law or  equity;  provided, however, that upon the occurrence of an event described in Section 8.01(g) or (h) with respect to  the Borrower, the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make  L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans  and all interest and other amounts as aforesaid shall automatically become due and payable, the outstanding  principal of the Loans shall bear interest at the Default Rate, and the obligation of the Borrower to Cash  Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without  further act of the Administrative Agent or any Lender.  8.03 Application of Funds.    (a) After the exercise of remedies provided for in Section 8.02 (or after the Loans have  automatically become immediately due and payable and the L/C Obligations have automatically  been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time  insufficient funds are received by and available to the Administrative Agent to pay fully all Secured  Obligations then due hereunder, any amounts received on account of the Secured Obligations shall,  subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative Agent in the  following order:  First, to payment of that portion of the Secured Obligations constituting fees, indemnities,  expenses and other amounts (including fees, charges and disbursements of counsel to the  Administrative Agent and amounts payable under Article III) payable to the Administrative Agent  in its capacity as such;  Second, to payment of that portion of the Secured Obligations constituting fees,  indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to  the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the  respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be  employees of any Lender or the L/C Issuer)) arising under the Loan Documents and amounts  payable under Article III, ratably among them in proportion to the respective amounts described in  this Second clause payable to them;  Third, to payment of that portion of the Secured Obligations constituting accrued and  unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Secured  Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in  proportion to the respective amounts described in this Third clause payable to them;  Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal  of the Loans, L/C Borrowings and Secured Obligations then owing under Secured Hedge  Agreements and Secured Cash Management Agreements and to the to the Administrative Agent  for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised  of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash  Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably among the  Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management  Banks in proportion to the respective amounts described in this Fourth clause held by them; and  





 






  119  Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid  in full, to the Borrower or as otherwise required by Law.  (b) Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the  aggregate undrawn amount of Letters of Credit pursuant to the Fourth clause 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 Secured 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 its assets, but appropriate adjustments shall be made with respect to  payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set  forth above in this Section 8.03.  (c) Notwithstanding the foregoing, Secured Obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements 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 Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management  Bank or Hedge 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 Administrative Agent pursuant to the terms of Article IX for itself and its  Affiliates as if a “Lender” party hereto.  ARTICLE IX    ADMINISTRATIVE AGENT  9.01 Appointment and Authority.  (a) Appointment. Each of the Lenders and the L/C Issuer hereby irrevocably appoints,  designates and authorizes Bank of America to act on its behalf as the Administrative Agent  hereunder and under the other Loan Documents and authorizes the Administrative Agent to take  such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent  by the terms hereof or thereof, together with such actions and powers as are reasonably incidental  thereto. The provisions of this Article IX are solely for the benefit of the Administrative Agent, the  Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party 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 Loan 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) Collateral Agent. The Administrative Agent shall also act as the “collateral agent”  under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge  Bank and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and  authorizes the Administrative Agent to act as the Administrative Agent of such Lender and the L/C  Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by  any of the Loan Parties to secure any of the Secured Obligations, together with such powers and  discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as  “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the  





 






  120  Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on  the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising  any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled  to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as  though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan  Documents) as if set forth in full herein with respect thereto.  9.02 Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have  the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as  though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise  expressly indicated or unless the context otherwise requires, include the Person serving as the  Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept  deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity  for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business  with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the  Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide  notice to or consent of the Lenders with respect thereto.  9.03 Exculpatory Provisions.  (a) The Administrative Agent or the Arranger, as applicable, shall not have any duties  or obligations except those expressly set forth herein and in the other Loan Documents, and its  duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,  the Administrative Agent or the Arranger, as applicable, and its Related Parties:  (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 Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or percentage  of the Lenders as shall be expressly provided for herein or in the other Loan Documents),  provided that the Administrative Agent shall not be required to take any action that, in its  opinion or the opinion of its counsel, may expose the Administrative Agent to liability or  that is contrary to any Loan Document or Applicable Law, including for the avoidance of  doubt any action that may be in violation of the automatic stay under any Debtor Relief  Law or that may effect a forfeiture, modification or termination of property of a Defaulting  Lender in violation of any Debtor Relief Law; and  (iii) shall not have any duty or responsibility to disclose, and shall not be liable  for the failure to disclose, to any Lender or the L/C Issuer any credit or other information  concerning the business, prospects, operations, property, financial and other condition or  creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated  to, or in the possession of, the Administrative Agent, Arranger or any of their Related  Parties in any capacity, except for notices, reports and other documents expressly required  to be furnished to the Lenders by the Administrative Agent herein.  (b) Neither the Administrative Agent nor any of its Related Parties shall be liable for  any action taken or not taken by the Administrative Agent under or in connection with this  Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with  





 






  121  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 11.01 and 8.02) or (ii) in the absence  of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction  by final and non-appealable judgment. The Administrative Agent shall be deemed not to have  knowledge of any Default unless and until notice describing such Default is given in writing to the  Administrative Agent by the Borrower, a Lender or the L/C Issuer.  (c) Neither the Administrative Agent nor any of its Related Parties have any duty or  obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any  statement, warranty or representation made in or in connection with this Agreement or any other  Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of  the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence  of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement,  any other Loan Document or any other agreement, instrument or document, or the creation,  perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value  or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the  Administrative Agent.  9.04 Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely  upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice,  request, certificate, communication, 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 be fully protected in relying 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 the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to  such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary  from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of  Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan  Parties), 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. For  purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has  signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with,  each document or other matter required thereunder to be consented to or approved by or acceptable or  satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior  to the proposed Closing Date specifying its objections.  9.05 Delegation of Duties.  The Administrative Agent may perform any and all of its duties and  exercise its rights and powers hereunder or under any other Loan Document by or through any one or more  sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may  perform any and all of its duties and exercise its rights and powers by or through their respective Related  Parties. The exculpatory provisions of this Article IX 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 Facilities 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  





 






  122  the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub- agents.  9.06 Resignation of Administrative Agent.  (a) Notice. The Administrative Agent may at any time give notice of its resignation to  the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, 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 L/C Issuer, appoint a successor  Administrative Agent meeting the qualifications set forth above; provided that in no event shall  any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been  appointed, such resignation shall become effective in accordance with such notice on the  Resignation Effective Date.  (b) Defaulting Lender. If the Person serving 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 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.  (c) Effect of Resignation or Removal. With effect from the Resignation Effective Date  or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent  shall be discharged from its duties and obligations hereunder and under the other Loan Documents  (except that in the case of any collateral security held by the Administrative Agent on behalf of the  Lenders or the L/C Issuer under any of the Loan 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 (ii) except for any indemnity payments or other amounts then 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 the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a  successor Administrative Agent as provided for above. 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 as provided in Section 3.01(g) and other than any rights to indemnity payments  or other amounts owed to the retiring or removed Administrative Agent as of the Resignation  Effective Date or the Removal Effective Date, as applicable), and the retiring or removed  Administrative Agent shall be discharged from all of its duties and obligations hereunder or under  the other Loan Documents (if not already discharged therefrom as provided above in this Section  9.06). 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 Loan Documents, the provisions of this Article XI and Section 11.04 shall continue in  effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their  





 






  123  respective Related Parties in respect of any actions taken or omitted to be taken by any of them (A)  while the retiring or removed Administrative Agent was acting as Administrative Agent and (B)  after such resignation or removal for as long as any of them continues to act in any capacity  hereunder or under the other Loan Documents, including, without limitation, (1) acting as collateral  agent or otherwise holding any collateral security on behalf of any of the Secured Parties and (2)  in respect of any actions taken in connection with transferring the agency to any successor  Administrative Agent.  (d) L/C Issuer and Swingline Lender. Any resignation or removal by Bank of America  as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C  Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain all the  rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit  outstanding as of the effective date of its resignation as the L/C Issuer and all L/C Obligations with  respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk  participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America resigns  as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder  with respect to Swingline Loans made by it and outstanding as of the effective date of such  resignation, including the right to require the Lenders to make Base Rate Loans or fund risk  participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment  by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall  in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and  become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or  Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be  discharged from all of their respective duties and obligations hereunder or under the other Loan  Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the  Letters of Credit, if any, outstanding at the time of such succession or make other arrangements  satisfactory to Bank of America to effectively assume the obligations of Bank of America with  respect to such Letters of Credit.  9.07 Non-Reliance on Administrative Agent, the Arranger and the Other Lenders.  Each  Lender and the L/C Issuer expressly acknowledges that neither the Administrative Agent nor the Arranger  has made any representation or warranty to it, and that no act by the Administrative Agent or the Arranger  hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any  Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the  Administrative Agent or the Arranger to any Lender or the L/C Issuer as to any matter, including whether  the Administrative Agent or the Arranger have disclosed material information in their (or their Related  Parties’) possession.  Each Lender and the L/C Issuer represents to the Administrative Agent and the  Arranger that it has, independently and without reliance upon the Administrative Agent, the Arranger, 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 of, appraisal of, and investigation into, the business, prospects,  operations, property, financial and other condition and creditworthiness of the Loan Parties and their  Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated  hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower  hereunder. Each Lender and the L/C Issuer also acknowledges that it will, independently and without  reliance upon the Administrative Agent, the Arranger, 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 credit analysis, appraisals and decisions in taking or not taking action under or based upon this  Agreement, any other Loan Document or any related agreement or any document furnished hereunder or  thereunder, and to make such investigations as it deems necessary to inform itself as to the business,  prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties.   Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of  





 






  124  a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the  ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose of making,  acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable  to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of  financial instrument, and each Lender and the L/C Issuer agrees not to assert a claim in contravention of  the foregoing.  Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect  to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein,  as may be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in  making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities,  is experienced in making, acquiring or holding such commercial loans or providing such other facilities.  9.08 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the titles  listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or  any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the  Arranger, a Lender or the L/C Issuer hereunder.  9.09 Administrative Agent May File Proofs of Claim; Credit Bidding.  (a) In case of the pendency of any proceeding under any Debtor Relief Law or any  other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of  whether the principal of any Loan or L/C Obligation shall then be due and payable as herein  expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall  have made any demand on the Borrower) shall be entitled and empowered, by intervention in such  proceeding or otherwise:  (i) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, L/C Obligations and all other Secured  Obligations that are owing and unpaid and to file such other documents as may be  necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the  Administrative Agent (including any claim for the reasonable compensation, expenses,  disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent  and their respective agents and counsel and all other amounts due the Lenders, the L/C  Issuer and the Administrative Agent under Sections 2.03(l), (m), (o) and (p), 2.09, 2.10(b)  and 11.04) allowed in such judicial proceeding; and  (ii) to collect and receive any monies or other property payable or deliverable  on any such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such  payments to the Administrative Agent and, in the event that the Administrative Agent shall consent  to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the  Administrative Agent any amount due for the reasonable compensation, expenses, disbursements  and advances of the Administrative Agent and its agents and counsel, and any other amounts due  the Administrative Agent under Sections 2.03, 2.09, 2.10(b) and 11.04.  (b) Nothing contained herein shall be deemed to authorize the Administrative Agent  to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of  reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the  rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of  the claim of any Lender or the L/C Issuer or in any such proceeding.  





 






  125  (c) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the  direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations  (including accepting some or all of the Collateral in satisfaction of some or all of the Secured  Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase  (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (i)  at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,  including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any  similar Laws in any other jurisdictions to which a Loan Party is subject, (ii) at any other sale or  foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the  direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with  any Applicable Law. In connection with any such credit bid and purchase, the Secured Obligations  owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with  Secured Obligations with respect to contingent or unliquidated claims receiving contingent  interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims  in an amount proportional to the liquidated portion of the contingent claim amount used in  allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or  debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase).  In connection with any such bid (A) the Administrative Agent shall be authorized to form one or  more acquisition vehicles to make a bid, (B) to adopt documents providing for the governance of  the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with  respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity  Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders,  irrespective of the termination of this Agreement and without giving effect to the limitations on  actions by the Required Lenders contained in clauses (i) through (x) of Section 11.1(a) of this  Agreement), and (C) to the extent that Secured Obligations that are assigned to an acquisition  vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or  better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the  amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall  automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments  issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to  the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or  any acquisition vehicle to take any further action.  9.10 Collateral and Guaranty Matters.  (a) Each of the Lenders (including in its capacities as a potential Cash Management  Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative  Agent, at its option and in its discretion,  (i) to release any Lien on any property granted to or held by the  Administrative Agent under any Loan Document (i) upon the Facility Termination Date,  (ii) 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 hereunder or under any other  Loan Document, or (iii) if approved, authorized or ratified in writing by the Required  Lenders in accordance with Section 11.01;  (ii) to subordinate any Lien on any property granted to or held by the  Administrative Agent under any Loan Document to the holder of any Lien on such property  that is permitted by Section 7.02(h); and  





 






  126  (iii) to release any Guarantor from its obligations under the Guaranty if such  Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan  Documents.  (b) Upon request by the Administrative 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 the  Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the  Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan  Party such documents as such Loan Party may reasonably request to evidence the release of such  item of Collateral from the assignment and security interest granted under the Collateral Documents  or to subordinate its interest in such item, or to release such Guarantor from its obligations under  the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section  9.10.  (c) The Administrative Agent shall not be responsible for or have a duty to ascertain  or inquire into any representation or warranty regarding the existence, value or collectability of the  Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any  certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent  be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the  Collateral.  9.11 Secured Cash Management Agreements and Secured Hedge Agreements.  Except as  otherwise expressly set forth herein or in the Guaranty or any Collateral Document, no Cash Management  Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any  Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of  any action or to consent to, direct or object to any action hereunder or under any other Loan Document or  otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice  of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or  any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent  expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the  contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory  arrangements have been made with respect to, Secured Obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein  and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured  Obligations, together with such supporting documentation as the Administrative Agent may request, from  the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall  not be required to verify the payment of, or that other satisfactory arrangements have been made with  respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge  Agreements in the case of a Facility Termination Date.  9.12 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto  to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative  Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section  3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s  





 






  127  entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments, or this agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84– 14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95–60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90–1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91–38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96– 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,  the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84–14 and (D) to the best knowledge of such Lender, the requirements of subsection  (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or (2) a Lender has provided another representation, warranty and  covenant in accordance with clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement (including in connection with the reservation or  exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or  any documents related hereto or thereto).  9.13 Recovery of Erroneous Payments.  Without limitation of any other provision in this  Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender  Recipient Party, whether or not in respect of an Obligation due and owing by the Borrower at such time,  where such payment is a Rescindable Amount, then in any such event, each Lender Recipient Party  receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand  the Rescindable Amount received by such Lender Recipient Party  in immediately available funds in the  currency so received, with interest thereon, for each day from and including the date such Rescindable  Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater  of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking  industry rules on interbank compensation. Each Lender Recipient Party irrevocably waives any and all  





 






  128  defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain  funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its  obligation to return any Rescindable Amount.  The Administrative Agent shall inform each Lender  Recipient Party promptly upon determining that any payment made to such Lender Recipient Party  comprised, in whole or in part, a Rescindable Amount.  ARTICLE X    CONTINUING GUARANTY  10.01 Guaranty.  Each Guarantor hereby absolutely and unconditionally, jointly and severally  guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty  of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon  acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each  Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the  Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such  Guarantor and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited  to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject  to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions  of any applicable state law or other Applicable Law. Without limiting the generality of the foregoing, the  Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof,  which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed  claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws.  The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible  in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the  purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the  genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or  agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection,  non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured  Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them,  under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or  hereafter acquire in any way relating to any or all of the foregoing.  10.02 Rights of Lenders.  Each Guarantor consents and agrees that the Secured Parties may, at  any time and from time to time, without notice or demand, and without affecting the enforceability or  continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise  change the time for payment or the terms of the Secured Obligations or any part thereof; (b) take, hold,  exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment  of this Guaranty or any Secured Obligations; (c) apply such security and direct the order or manner of sale  thereof as the Administrative Agent, the L/C Issuer and the Lenders in their sole discretion may determine;  and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured  Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or  failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor  under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.  10.03 Certain Waivers.  Each Guarantor waives (a) any defense arising by reason of any  disability or other defense of the Borrower or any other guarantor, or the cessation from any cause  whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any  other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more  burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations  affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other  





 






  129  Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy  in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security  now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other  defenses or benefits that may be derived from or afforded by Applicable Law limiting the liability of or  exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all  presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests,  notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever  with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence,  creation or incurrence of new or additional Secured Obligations.  10.04 Obligations Independent.  The obligations of each Guarantor hereunder are those of  primary obligor, and not merely as surety, and are independent of the Secured Obligations and the  obligations of any other guarantor, and a separate action may be brought against each Guarantor to enforce  this Guaranty whether or not the Borrower or any other person or entity is joined as a party.  10.05 Subrogation.  No Guarantor shall exercise any right of subrogation, contribution,  indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until  all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid  and performed in full and the Commitments and the Facilities are terminated. If any amounts are paid to a  Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit  of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Secured  Obligations, whether matured or unmatured.  10.06 Termination; Reinstatement.  This Guaranty is a continuing and irrevocable guaranty of  all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility  Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or  be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or  any of the Secured Parties exercises its right of setoff, in respect of the Secured Obligations and such  payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be  fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of  the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection  with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made  or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released  this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations  of each Guarantor under this Section 10.06 shall survive termination of this Guaranty.  10.07 Stay of Acceleration.  If acceleration of the time for payment of any of the Secured  Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower  under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each  Guarantor, jointly and severally, immediately upon demand by the Secured Parties.  10.08 Condition of Borrower.  Each Guarantor acknowledges and agrees that it has the sole  responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such  information concerning the financial condition, business and operations of the Borrower and any such other  guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor  is not relying on the Secured Parties at any time, to disclose to it any information relating to the business,  operations or financial condition of the Borrower or any other guarantor (each Guarantor waiving any duty  on the part of the Secured Parties to disclose such information and any defense relating to the failure to  provide the same).  





 






  130  10.09 Appointment of Borrower.  Each of the Loan Parties hereby appoints the Borrower to act  as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and  electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such  documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems  appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such  document and/or authorization executed on its behalf, (b) any notice or communication delivered by the  Administrative Agent, L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party  and (c) the Administrative Agent, L/C Issuer or the Lenders may accept, and be permitted to rely on, any  document, authorization, instrument or agreement executed by the Borrower on behalf of each of the Loan  Parties.  10.10 Right 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.  10.11 Keepwell.  Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or  the grant of a Lien under the Loan Documents, in each case, by any Specified Loan Party becomes effective  with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and  irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to  such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its  obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the  maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP  Guarantor’s obligations and undertakings under this Article X voidable under Applicable Law relating to  fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and  undertakings of each Qualified ECP Guarantor under this Section 10.11 shall remain in full force and effect  until the Secured Obligations have been indefeasibly paid and performed in full. Each Loan Party intends  this Section 10.11 to constitute, and this Section 10.11 shall be deemed to constitute, a guarantee of the  obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party  for all purposes of the Commodity Exchange Act.  ARTICLE XI    MISCELLANEOUS  11.01 Amendments, Etc.  (a) Subject to Section 3.03 and the last paragraph of this Section 11.01(a), no  amendment or waiver of any provision of this Agreement or any other Loan Document, and no  consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective  unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent  of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and  acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, however, that  no such amendment, waiver or consent shall:  (i) waive any condition set forth in Section 4.01, or, in the case of the initial  Credit Extension, Section 4.02, without the written consent of each Lender;  (ii) extend or increase the Commitment of any Lender (or reinstate any  Commitment terminated pursuant to Section 8.02) without the written consent of such  Lender (it being understood and agreed that a waiver of any condition precedent in Section  





 






  131  4.02 or of any Default or a mandatory reduction in Commitments is not considered an  extension or increase in Commitments of any Lender);  (iii) postpone any date fixed by this Agreement or any other Loan Document  for (A) any payment (excluding mandatory prepayments) of principal, interest, fees or  other amounts due to the Lenders (or any of them) hereunder or under such other Loan  Document without the written consent of each Lender entitled to such payment or (B) any  scheduled reduction of any Facility hereunder or under any other Loan Document without  the written consent of each Appropriate Lender;  (iv) reduce the principal of, or the rate of interest specified herein on (other  than the decision not to change, or cease to change, Default Interest), any Loan or L/C  Borrowing, or any fees or other amounts payable hereunder or under any other Loan  Document without the written consent of each Lender entitled to such amount; provided,  however, that only the consent of the Required Lenders shall be necessary to amend the  definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or  Letter of Credit Fees at the Default Rate;  (v) change (A) Section 8.03 or Section 2.13 in a manner that would have the  effect of altering the ratable reduction of Commitments, pro rata payments or pro rata  sharing of payments required hereunder without the written consent of each Lender or  (B) the order of application of any reduction in the Commitments or any prepayment of  Loans among the Facilities from the application thereof set forth in the applicable  provisions of Section 2.05(c) or 2.06(c), respectively, in any manner that materially and  adversely affects the Lenders under a Facility without the written consent of the Required  Revolving Lenders,  the Required Term Lenders under the Term A Facility, or the Required  Term Lenders under the Delayed Draw Term A Facility, as applicable or (C) Section  2.12(f) in a manner that would alter the pro rata application required thereby without the  written consent of each Lender directly affected thereby, or (D) subordinate, or have the  effect of subordinating, the Obligations hereunder to any other Indebtedness or other  obligation, in each case, without the written consent of each Lender;  (vi) change (A) any provision of this Section 11.01 or the definition of  “Required Lenders” or “Required Class Lenders” or any other provision of any Loan  Document specifying the number or percentage of Lenders required to amend, waive or  otherwise modify any rights hereunder or thereunder or make any determination or grant  any consent hereunder, without the written consent of each Lender or (B) the definitions  of “Required Revolving Lenders” or “Required Term Lenders” as each relates to the related  Facility (or the constituent definition therein relating to such Facility) without the written  consent of each Lender under such Facility;  (vii) release any material portion of the Collateral in any transaction or series  of related transactions (or terminate any Lien with respect thereto), except as expressly  permitted in this Agreement (in which case such release may be made by the  Administrative Agent acting alone), without the written consent of each Lender;  (viii) release any of the Guarantors, without the written consent of each Lender,  except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant  to Section 9.10 (in which case such release may be made by the Administrative Agent  acting alone);   





 






  132  (ix) amend Section 1.09 or the definition of “Alternative Currency” without  the consent of each Lender directly affected thereby; or  (x) directly and materially adversely affect the rights of Lenders holding  Commitments or Loans of one Class differently from the rights of Lenders holding  Commitments or Loans of any other Class without the written consent of the applicable  Required Class Lenders;  and provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed  by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C  Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be  issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the  Swingline Lender in addition to the Lenders required above, affect the rights or duties of the  Swingline Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in  writing and signed by the Administrative Agent in addition to the Lenders required above, affect  the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;  and (D) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing  executed only by the parties thereto.   (b) Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall  have any right to approve or disapprove any amendment, waiver or consent hereunder (and any  amendment, waiver or consent which by its terms requires the consent of all Lenders or each  affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the  consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment  of any Defaulting Lender may not be increased or extended without the consent of such Lender and  (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected  Lender, or all Lenders or each affected Lender under a Facility, that by its terms affects any  Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the  consent of such Defaulting Lender; (ii) 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 (iii) the Required Lenders shall determine  whether or not to allow a Loan 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.  (c) Notwithstanding anything to the contrary herein, this Agreement may be amended  and restated without the consent of any Lender (but with the consent of the Borrower and the  Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall  no longer be a party to this Agreement (as so amended and restated), the Commitments of such  Lender shall have terminated, such Lender shall have no other commitment or other obligation  hereunder and shall have been paid in full all principal, interest and other amounts owing to it or  accrued for its account under this Agreement.  (d) Notwithstanding any provision herein to the contrary, if the Administrative Agent  and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or  other defect in any provision of this Agreement or any other Loan Document (including the  schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted  to amend, modify or supplement such provision to cure such ambiguity, omission, mistake,  typographical error or other defect, and such amendment shall become effective without any further  action or consent of any other party to this Agreement.  





 






  133  (e) Notwithstanding any provision herein to the contrary, this Agreement may be  amended with the written consent of the Administrative Agent, the L/C Issuer, the Borrower and  the Lenders affected thereby to amend the definition of “Alternative Currency” solely to add  additional currency options and the applicable interest rate with respect thereto, in each case solely  to the extent permitted pursuant to Section 1.09.  (f) If any Lender does not consent to a proposed amendment, waiver, consent or  release with respect to any Loan Document that requires the consent of each Lender or each Lender  affected thereby and that has been approved by the Required Lenders, the Borrower may replace  such Non-Consenting Lender in accordance with Section 11.13; provided that such amendment,  waiver, consent or release can be effected as a result of the assignment contemplated by such  Section (together with all other such assignments required by the Borrower to be made pursuant to  this paragraph).  11.02 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 clause (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 fax transmission  or e-mail transmission as follows, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:  (i) if to  the Borrower or any other Loan Party, the Administrative Agent, the  L/C Issuer or the Swingline Lender, to the address, fax number, e-mail address or telephone  number specified for such Person on Schedule 1.01(a); and  (ii) if to any other Lender, to the address, fax number, e-mail address or  telephone number specified in its Administrative Questionnaire (including, as appropriate,  notices delivered solely to the Person designated by a Lender on its Administrative  Questionnaire then in effect for the delivery of notices that may contain material non-public  information relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by fax transmission 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 clause (b)  below shall be effective as provided in such clause (b).  (b) Electronic Communications.  (i) Notices and other communications to the Administrative Agent, the  Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered or furnished  by electronic communication (including e-mail, FPML messaging, and Internet or intranet  websites) pursuant to an electronic communications agreement (or such other procedures  approved by the Administrative Agent in its sole discretion); provided that the foregoing  shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant  to Article II if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has  notified the Administrative Agent that it is incapable of receiving notices under such  





 






  134  Article II by electronic communication. The Administrative Agent, the Swingline Lender,  the L/C Issuer or the Borrower may each, 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.  (ii) Unless the Administrative Agent otherwise prescribes, (A) notices and  other communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgment from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgement) and (B)  notices and other communications posted to an Internet or intranet website shall be deemed  received by the intended recipient 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 address or other written acknowledgement) indicating that such notice or  communication is available and identifying the website address therefor; provided that for  both clauses (A) and (B), if such notice or other communication is not sent during the  normal business hours of the recipient, such notice, email or communication shall be  deemed to have been sent at the opening of business on the next Business Day for the  recipient.  (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.” THE ADMINISTRATIVE AGENT PARTIES (AS DEFINED BELOW) DO  NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER  MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM  LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO  WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY  WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER  CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE  BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent  or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,  any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses  of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s  or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform,  any other electronic platform or electronic messaging service, or through the Internet.  (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C  Issuer and the Swingline Lender may change its address, fax number or telephone number or e- mail address for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, fax number or telephone number or e-mail address for  notices and other communications hereunder by notice to the Borrower, the Administrative Agent,  the L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify the  Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an  effective address, contact name, telephone number, fax number and e-mail address to which notices  and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such  Public Lender to at all times have selected the “Private Side Information” or similar designation on  the content declaration screen of the Platform in order to enable such Public Lender or its delegate,  in accordance with such Public Lender’s compliance procedures and Applicable Law, including  United States federal and state securities Laws, to make reference to Borrower Materials that are  not made available through the “Public Side Information” portion of the Platform and that may  





 






  135  contain material non-public information with respect to the Borrower or its securities for purposes  of United States federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including,  without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications,  Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any  Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete  or were not preceded or followed by any other form of notice specified herein, or (ii) the terms  thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties  shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of  each of them from all losses, costs, expenses and liabilities resulting from the reliance by such  Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to  and other telephonic communications with the Administrative Agent may be recorded by the  Administrative Agent, and each of the parties hereto hereby consents to such recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  (a) No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise,  and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or  under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial  exercise of any right, remedy, power or privilege hereunder or under any other Loan Document  preclude any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege. The rights, remedies, powers and privileges herein provided, and provided under each  other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and  privileges provided by law.  (b) Notwithstanding anything to the contrary contained herein or in any other Loan  Document, the authority to enforce rights and remedies hereunder and under the other Loan  Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions  and proceedings at law in connection with such enforcement shall be instituted and maintained  exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the  Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the  Administrative Agent from exercising on its own behalf the rights and remedies that inure to its  benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan  Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies  that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may  be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights  in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from  filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a  proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if  at any time there is no Person acting as Administrative Agent hereunder and under the other Loan  Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the  Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses  (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the  consent of the Required Lenders, enforce any rights and remedies available to it and as authorized  by the Required Lenders.  





 






  136  11.04 Expenses; Indemnity; Damage Waiver.   (a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket  expenses incurred by the Administrative Agent and its Affiliates (including, but not limited to, (A)  the reasonable fees, charges and disbursements of counsel for the Administrative Agent and its  Affiliates and (B) due diligence expenses), 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 Loan Documents or any amendments, modifications or waivers of the  provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall  be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in  connection with the issuance, amendment, extension, reinstatement or renewal of any Letter of  Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the  Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements  of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the  enforcement or protection of its rights (A) in connection with this Agreement and the other Loan  Documents, including its rights under this Section 11.04, or (B) in connection with 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 Loan Parties. The Loan Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and related expenses (including the 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 Loan Party) arising out of, in connection with, or as a result  of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or  instrument contemplated hereby or thereby (including, without limitation, the Indemnitee’s reliance  on any Communication executed using an Electronic Signature, or in the form of an Electronic  Record, the performance by the parties hereto of their respective obligations hereunder or  thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case  of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the  administration of this Agreement and the other Loan Documents (including in respect of any  matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of  the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment  under a Letter of Credit if the documents presented in connection with such demand do not strictly  comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of  Hazardous Materials on or from any property owned, leased or operated by a Loan Party or any of  its Subsidiaries, or any Environmental Liability related in any way to a Loan Party 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 other Loan Party or any of the Borrower’s or such Loan  Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party  thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that  such losses, claims, damages, liabilities or related expenses (x) are determined by a court of  competent jurisdiction by final and non-appealable judgment to have resulted from the gross  negligence or willful misconduct of such Indemnitee or (y) result from a claim not involving an act  or omission of a Loan Party and that is brought by an Indemnitee against another Indemnitee (other  than against the Arranger or the Administrative Agent in their capacities as such). Without limiting  the provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other  than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.  





 






  137  (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail  to indefeasibly pay any amount required under clauses (a) or (b) of this Section 11.04 to be paid by  it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or  any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative  Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the  case may be, such Lender’s pro rata share (determined as of the time that the applicable  unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total  Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect  of a claim asserted by such Lender), such payment to be made severally among them based on such  Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed  expense or indemnity payment is sought), 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), the L/C Issuer or the Swingline Lender  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), the L/C Issuer or the Swingline Lender in connection  with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions  of Section 2.12(d).  (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by  Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges  that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for  special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising  out of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,  any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in  clause (b) above shall be liable for any damages arising from the use by unintended recipients of  any information or other materials distributed to such unintended recipients by such Indemnitee  through telecommunications, electronic or other information transmission systems in connection  with this Agreement or the other Loan Documents or the transactions contemplated hereby or  thereby.  (e) Payments. All amounts due under this Section 11.04 shall be payable not later than  ten (10) Business Days after written demand therefor.  (f) Survival. The agreements in this Section 11.04 and the indemnity provisions of  Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the  Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments  and the repayment, satisfaction or discharge of all the other Obligations.  11.05 Payments Set Aside.   To the extent that any payment by or on behalf of the Borrower is  made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C  Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any  part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required  (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such  Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any  proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation  or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as  if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer  severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication)  of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date  of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight  





 






  138  Rate, in the applicable course of such recovery or payment, from time to time in effect. The obligations of  the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full  of the Obligations and the termination of this Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally. The provisions of this Agreement and the other  Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto  and their respective successors and assigns permitted hereby, except neither the Borrower nor any  other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without  the prior written consent of the Administrative Agent, the L/C Issuer 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 Section 11.06(b), (ii) by way of participation in  accordance with the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a  security interest subject to the restrictions of Section 11.06(e) (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 Section 11.06(d)  and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative  Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by  reason of this Agreement.  (b) Assignments by Lenders. Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement and the other Loan  Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes  of this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to  it); provided that (in each case with respect to any Facility) any such assignment shall be subject to  the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of the  assigning Lender’s Commitment under any Facility and/or the Loans at the time  owing to it (in each case with respect to any Facility) or contemporaneous  assignments to related Approved Funds (determined after giving effect to such  assignments) that equal at least the amount specified in clause (b)(i)(B) of this  Section 11.06 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  (B) in any case not described in clause (b)(i)(A) of this Section 11.06,  the aggregate amount of the Commitment (which for this purpose includes Loans  outstanding thereunder) or, if the Commitment is not then in effect, the principal  outstanding balance of the Loans of the assigning Lender subject to each such  assignment, determined as of the date the Assignment and Assumption with  respect to such assignment is delivered to the Administrative Agent or, if “Trade  Date” is specified in the Assignment and Assumption, as of the Trade Date, shall  not be less than $5,000,000, in the case of any assignment in respect of the  Revolving Facility, or $1,000,000, in the case of any assignment in respect of any  Term Facility, unless each of the Administrative Agent and, so long as no Event  of Default has occurred and is continuing, the Borrower otherwise consents (each  





 






  139  such consent not to be unreasonably withheld or delayed) provided, however, that  concurrent assignments to members of an Assignee Group and concurrent  assignments from members of an Assignee Group to a single Eligible Assignee (or  to an Eligible Assignee and members of its Assignee Group) will be treated as a  single assignment for purposes of determining whether such minimum amount has  been met.  (ii) 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 and the other Loan Documents with respect to the Loans and/or the  Commitment assigned, except that this clause (b)(ii) shall not (A) apply to the Swingline  Lender’s rights and obligations in respect of Swingline Loans or (B) prohibit any Lender  from assigning all or a portion of its rights and obligations among separate Facilities on a  non-pro rata basis.  (iii) Required Consents. No consent shall be required for any assignment  except to the extent required by clause (b)(i)(B) of this Section 11.06 and, in addition:  (A) the consent of the Borrower (such consent not to be unreasonably  withheld or delayed) shall be required for any assignment to a Competitor, and for  any other assignment, provided, that the Consent of the Borrower shall not be  required in connection with an assignment to a non-Competitor if (1) an Event of  Default has occurred and is continuing at the time of such assignment or (2) such  assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided  that the Borrower shall 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; and provided, further, that the  Borrower’s consent shall not be required during the primary syndication of the  Facilities;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of  (1) any unfunded Term Commitment or any Revolving Commitment if such  assignment is to a Person that is not a Lender with a Commitment in respect of the  applicable Facility, an Affiliate of such Lender or an Approved Fund with respect  to such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate  of a Lender or an Approved Fund; and  (C) the consent of the L/C Issuer and the Swingline Lender shall be  required for any assignment in respect of the Revolving Facility.  (iv) Assignment and Assumption. The parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together with a  processing and recordation fee in the amount of $3,500; provided, however, that the  Administrative Agent may, in its sole discretion, elect to waive such processing and  recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons. No such assignment shall be made  (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  





 






  140  hereunder, would constitute any of the foregoing Persons described in this clause (B), or  (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned  and operated by or for the primary benefit of one or more natural Persons).  (vi) 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 sub-participations, 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 (A) pay and satisfy in full all payment liabilities then owed  by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender  hereunder (and interest accrued thereon) and (B) 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 Applicable Percentage. Notwithstanding the foregoing, in the event  that any assignment of rights and obligations of any Defaulting Lender hereunder shall  become effective under Applicable Law without compliance with the provisions of this  clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender  for all purposes of this Agreement until such compliance occurs.  (vii) Subject to acceptance and recording thereof by the Administrative Agent  pursuant to Section 11.06(c), from and after the effective date specified in each Assignment  and Assumption, the assignee thereunder shall be a party to this Agreement and, to the  extent of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,  to the extent of the interest assigned by such Assignment and Assumption, be released from  its obligations under this Agreement (and, in the case of an Assignment and Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of  Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior  to the effective date of such assignment); provided, that except to the extent otherwise  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. Upon request, the Borrower (at its expense)  shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a  Lender of rights or obligations under this Agreement that does not comply with this clause  (b) 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 Section 11.06(d).  (c) Register. The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or  the equivalent thereof in electronic form) and a register for the recordation of the names and  addresses of the Lenders, and the Commitments of, and principal amounts (and interest amounts)  of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the  Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  





 






  141  Agreement. The Register shall be available for inspection by the Borrower and any Lender (with  respect to such Lender’s interest only), at any reasonable time and from time to time upon  reasonable prior notice.  (d) Participations.  (i) 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 a holding company, investment vehicle or trust for, or owned and  operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the  Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all  or a portion of such Lender’s rights and/or obligations under this Agreement (including all  or a portion of its Commitment and/or the Loans (including such Lender’s participations  in L/C Obligations and/or Swingline 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 Lenders and the L/C Issuer shall continue  to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement. For the avoidance of doubt, each Lender shall be  responsible for the indemnity under Section 11.04(c) without regard to the existence of any  participations.  (ii) Any agreement or instrument pursuant to which a Lender sells such a  participation shall provide that such Lender shall retain the sole right to enforce this  Agreement and to approve any amendment, modification or waiver of any provision of this  Agreement; provided that such agreement or instrument may provide that such Lender will  not, without the consent of the Participant, agree to any amendment, waiver or other  modification described in the first proviso to Section 11.01 that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,  3.04 and 3.05 (subject to the requirements and limitations therein, including the  requirements under Section 3.01(e) (it being understood that the documentation required  under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the  same extent as if it were a Lender and had acquired its interest by assignment pursuant to  clause (b) of this Section 11.06; provided that such Participant (A) shall be subject to the  provisions of Sections 3.06 and 11.13 as if it were an assignee under clause (b) of this  Section 11.06 and (B) shall not be entitled to receive any greater payment under Sections  3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the  applicable participation 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 3.06 with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of  Section 11.08 as though it were a Lender; provided that such Participant agrees to be  subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation  shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a  register on which it enters the name and address of each Participant and the principal  amounts (and interest amounts) of each Participant’s interest in the Loans or other  obligations under the Loan Documents (the “Participant Register”); provided that no  Lender shall have any obligation to disclose all or any portion of the Participant Register  (including the identity of any Participant or any information relating to a Participant’s  





 






  142  interest in any commitments, loans, letters of credit or its other obligations under any Loan  Document) to any Person except to the extent that such disclosure is necessary to establish  that such commitment, loan, letter of credit or other obligation is in registered form under  Section 5f.103–1(c) of the United States Treasury Regulations. The entries in the  Participant Register shall be conclusive absent manifest error, and such Lender shall treat  each Person whose name is recorded in the Participant Register as the owner of such  participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.  (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 (including under its Note or Notes, if any)  to secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from  any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.  (f) Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding  anything to the contrary contained herein, if at any time Bank of America assigns all of its  Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America may,  (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign  as L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.  In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be  entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder;  provided, however, that no failure by the Borrower to appoint any such successor shall affect the  resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of  America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C  Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its  resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require  the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts  pursuant to Section 2.03(c)). If Bank of America resigns as Swingline Lender, it shall retain all the  rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it  and outstanding as of the effective date of such resignation, including the right to require the  Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans  pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swingline  Lender, (A) such successor shall succeed to and become vested with all of the rights, powers,  privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the  successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,  outstanding at the time of such succession or make other arrangements satisfactory to Bank of  America to effectively assume the obligations of Bank of America with respect to such Letters of  Credit.  11.07 Treatment of Certain Information; Confidentiality.   (a) Treatment of Certain Information. Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (i) to its Affiliates, its auditors and 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), (ii) 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  





 






  143  Association of Insurance Commissioners), (iii) to the extent required by Applicable Laws or  regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in  connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement of  rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the  same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective  assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible  Assignee invited to be a Lender pursuant to Section 2.16(c) or Section 11.06 or (B) 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 and its obligations, this Agreement or  payments hereunder, (vii) on a confidential basis to (A) any rating agency in connection with rating  the Borrower or its Subsidiaries or the credit facilities provided hereunder or (B) the provider of  any Platform or other electronic delivery service used by the Administrative Agent, the L/C Issuer  and/or the Swingline Lender to deliver Borrower Materials or notices to the Lenders or (viii) the  CUSIP Service Bureau or any similar agency in connection with the application, issuance,  publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit  facilities provided hereunder, or (ix) with the consent of the Borrower or to the extent such  Information (x) becomes publicly available other than as a result of a breach of this Section 11.07,  (xi) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their  respective Affiliates on a nonconfidential basis from a source other than the Borrower or (xii) is  independently discovered or developed by a party hereto without utilizing any Information received  from the Borrower or violating the terms of this Section 11.07. For purposes of this Section 11.07,  “Information” means all information received from the Borrower or any Subsidiary relating to the  Borrower or any Subsidiary or any of their respective businesses, other than any such information  that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential  basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information  received from the Borrower or any Subsidiary 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 11.07 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. In addition, the Administrative Agent and the Lenders may disclose the existence of  this Agreement and information about this Agreement to market data collectors, similar service  providers to the lending industry and service providers to the Administrative Agent and the Lenders  in connection with the administration of this Agreement, the other Loan Documents and the  Commitments.  (b) Non-Public Information. Each of the Administrative Agent, the Lenders and the  L/C Issuer acknowledges that (i) the Information may include material non-public information  concerning a Loan Party or a 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.  (c) Press Releases. The Loan Parties and their Affiliates agree that they will not in the  future issue any press releases or other public disclosure using the name of the Administrative  Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan  Documents without the prior written consent of the Administrative Agent, unless (and only to the  extent that) the Loan Parties or such Affiliate is required to do so under law (including required  filings with the SEC) and then, in any event the Loan Parties or such Affiliate will consult with  such Person before issuing such press release or other public disclosure.  





 






  144  (d) Customary Advertising Material. The Loan Parties consent to the publication by  the Administrative Agent or any Lender of customary advertising material relating to the  transactions contemplated hereby using the name, product photographs, logo or trademark of the  Loan Parties.  11.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender,  the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time,  after obtaining the prior written consent of the Required Lenders, to the fullest extent permitted by  Applicable Law to set off and apply any and all deposits (general or special, time or demand, provisional  or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time  owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower  or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or  hereafter existing under this Agreement or any other Loan Document to such Lender, the L/C Issuer or such  Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate shall have made any  demand under this Agreement or any other Loan Document and although such obligations of the Borrower  or such Loan Party may be contingent or unmatured, secured or unsecured, or are owed to a branch, office  or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such  deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall  exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending  such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust  for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender  shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured  Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of  each Lender, the L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other  rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective  Affiliates may have under Applicable Law. Each Lender and the L/C Issuer agrees to notify the Borrower  and the Administrative Agent promptly after any such setoff and application, provided that the failure to  give such notice shall not affect the validity of such setoff and application.  11.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any  Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the  maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the  Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate,  the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,  refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the  Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted  by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather  than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate,  and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the  Obligations hereunder.  11.10 Integration; Effectiveness.  This Agreement, the other Loan Documents, and any separate  letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the  entire contract among the parties relating to the subject matter hereof and supersede any and all previous  agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in  Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative  Agent and when the Administrative Agent shall have received counterparts hereof that, when taken  together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and  inure to the benefit of the parties hereto and their respective successor and assigns.  





 






  145  11.11 Survival of Representations and Warranties.  All representations and warranties made  hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in  connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such  representations and warranties have been or will be relied upon by the Administrative Agent and each  Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf  and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of  any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any  Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall  remain outstanding.  11.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to  be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions  of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the  parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions  with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid  or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or  render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of  this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating  to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be  deemed to be in effect only to the extent not so limited.  11.13 Replacement of Lenders.  (a) If the Borrower is entitled to replace a Lender pursuant to the provisions of  Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other  circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party  hereto, 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 11.06), all of its  interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and  obligations under this Agreement and the related Loan 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 (if any) specified in Section 11.06(b);  (ii) such Lender shall have received payment of an amount equal to 100% of  the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued  fees and all other amounts payable to it hereunder and under the other Loan Documents  (including any amounts under Section 3.05) from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Borrower (in the case of all other  amounts);  (iii) in the case of any such assignment resulting from a claim for compensation  under Section 3.04 or payments required to be made pursuant to Section 3.01, such  assignment will result in a reduction in such compensation or payments thereafter;  (iv) such assignment does not conflict with Applicable Laws; and  





 






  146  (v) in the case of an assignment resulting from a Lender becoming a Non- Consenting Lender, the applicable assignee shall have consented to the applicable  amendment, waiver or consent.  (b) 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.  (c) Each party hereto agrees that (i) an assignment required pursuant to this Section  11.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the  Administrative Agent and the assignee and (ii) the Lender required to make such assignment need  not be a party thereto in order for such assignment to be effective and shall be deemed to have  consented to an be bound by the terms thereof; provided, that, following the effectiveness of any  such assignment, the other parties to such assignment agree to execute and deliver such documents  necessary to evidence such assignment as reasonably requested by the applicable Lender, provided  further that any such documents shall be without recourse to or warranty by the parties thereto.  (d) Notwithstanding anything in this Section 11.13 to the contrary, (A) the Lender that  acts as the L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit  outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of  a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably  satisfactory to the L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in  amounts and pursuant to arrangements reasonably satisfactory to the L/C Issuer) have been made  with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative  Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.  11.14 Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET  FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF  ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT  COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION,  





 






  147  LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW  YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE  CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE  JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS  AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT  THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY  OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY  OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 11.14.  THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND  UNCONDITIONALLY 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 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  11.15 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 LOAN DOCUMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO  REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,  EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT  IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS  AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.  11.16 Subordination.  Each Loan Party (a “Subordinating Loan Party”) hereby subordinates  the payment of all obligations and indebtedness of any other Loan Party owing to it (“Intercompany Debt”),  whether now existing or hereafter arising, including but not limited to any obligation of any such other  Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such  Subordinating Loan Party’s performance under this Guaranty, to the indefeasible payment in full in cash of  all Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other  Loan Party to the Subordinating Loan Party shall be enforced and performance received by the  Subordinating Loan Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to  the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner  





 






  148  the liability of the Subordinating Loan Party under this Agreement. Without limitation of the foregoing, so  long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with  respect to Intercompany Debt; provided, that in the event that any Loan Party receives any payment of any  Intercompany Debt at a time when such payment is prohibited by this Section 11.16, such payment shall  be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon  written request, to the Administrative Agent.  11.17 Release of Collateral and Guarantees.  The Administrative Agent and the Lenders agree  that if (x) the assets of any Non-Core Project or (y) the assets or Equity Interests in any Subsidiary that are  owned by the Loan Parties are sold to any Person as permitted by the terms of this Agreement and the other  Loan Documents, or if any Subsidiary is merged or consolidated with or into any other Person as permitted  by the terms of this Agreement and such Subsidiary is not the continuing or surviving corporation, the  Administrative Agent shall, upon request of the Borrower (and upon the receipt by the Administrative  Agent of such evidence as the Administrative Agent or any Lender may reasonably request to establish that  such sale, designation, merger or consolidation is permitted by the terms of this Agreement), but without  the consent of any Lender, terminate the Guarantee of such Subsidiary under Article X hereof and authorize  the Administrative Agent to release the Liens created by the Loan Documents on such assets or Equity  Interests in such Subsidiary.  The Administrative Agent and the Lenders further agree that if any task order  or contract of any Loan Party shall become Energy Conservation Financing Collateral as permitted by the  terms of this Agreement, the Administrative Agent shall, upon request by the Borrower (and upon the  receipt by the Administrative Agent of such evidence as the  Administrative Agent or any Lender may  reasonably request to establish that grant of such security interest in such task orders or contracts in favor  of the Energy Conservation Project Financing Agent is permitted by the terms of this Agreement), release  the Lien created by the Loan Documents on such Energy Conservation Financing Collateral.  11.18 No Advisory or Fiduciary Responsibility.  In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, waiver or other  modification hereof or of any other Loan Document), the Borrower and each other Loan Party  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and  other services regarding this Agreement provided by the Administrative Agent, the Arranger and the  Lenders and their respective Affiliates are arm’s-length commercial transactions between the Borrower,  each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the  Arranger and the Lenders and their respective Affiliates, on the other hand, (ii) each of the Borrower and  the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it  has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of evaluating, and  understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the  other Loan Documents; (b) (i) the Administrative Agent, the Arranger and each Lender and each of their  respective Affiliates each is and has been acting solely as a principal and, except as expressly agreed in  writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary,  for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and  (ii) neither the Administrative Agent, the Arranger, nor any Lender nor any of their respective Affiliates  has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect  to the transactions contemplated hereby except those obligations expressly set forth herein and in the other  Loan Documents; and (c) the Administrative Agent, the Arranger and the Lenders and their respective  Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of  the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent,  the Arranger, nor any Lender nor any of their respective Affiliates has any obligation to disclose any of  such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest  extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any  claims that it may have against the Administrative Agent, the Arranger, the Lenders and their respective  





 






  149  Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any  aspect of any transactions contemplated hereby.  11.19 Electronic Execution; Electronic Records; Counterparts.    (a) This Agreement, any Loan Document and any other Communication, including  Communications required to be in writing, may be in the form of an Electronic Record and may be  executed using Electronic Signatures.  Each of the Loan Parties and each of the Administrative  Agent, the L/C Issuer, the Swingline Lender, and each Lender (collectively, each a “Credit Party”)  agrees that any Electronic Signature on or associated with any Communication shall be valid and  binding on such Person to the same extent as a manual, original signature, and that any  Communication entered into by Electronic Signature, will constitute the legal, valid and binding  obligation of such Person enforceable against such Person in accordance with the terms thereof to  the same extent as if a manually executed original signature was delivered.   Any Communication  may be executed in as many counterparts as necessary or convenient, including both paper and  electronic counterparts, but all such counterparts are one and the same Communication.  For the  avoidance of doubt, the authorization under this paragraph may include, without limitation, use or  acceptance of a manually signed paper Communication which has been converted into electronic  form (such as scanned into PDF format), or an electronically signed Communication converted into  another format, for transmission, delivery and/or retention. The Administrative Agent and each of  the Credit Parties may, at its option, create one or more copies of any Communication in the form  of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary  course of such Person’s business, and destroy the original paper document.  All Communications  in the form of an Electronic Record, including an Electronic Copy, shall be considered an original  for all purposes, and shall have the same legal effect, validity and enforceability as a paper record.   Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, L/C  Issuer nor Swingline Lender is under any obligation to accept an Electronic Signature in any form  or in any format unless expressly agreed to by such Person pursuant to procedures approved by it;  provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent, L/C  Issuer and/or Swingline Lender has agreed to accept such Electronic Signature, the Administrative  Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature  purportedly given by or on behalf of any Loan Party and/or any Credit Party without further  verification and (b) upon the request of the Administrative Agent or any Credit Party, any  Electronic Signature shall be promptly followed by such manually executed counterpart.  For  purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings  assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.  (b) Neither the Administrative Agent, L/C Issuer nor Swingline Lender shall be  responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability,  effectiveness or genuineness of any Loan Document or any other agreement, instrument or  document (including, for the avoidance of doubt, in connection with the Administrative Agent’s,  L/C Issuer’s or Swingline Lender’s reliance on any Electronic Signature transmitted by telecopy,  emailed .pdf or any other electronic means). The Administrative Agent, L/C Issuer and Swingline  Lender shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement  or any other Loan Document by acting upon, any Communication (which writing may be a fax,  any electronic message, Internet or intranet website posting or other distribution or signed using an  Electronic Signature) or any statement made to it orally or by telephone and believed by it to be  genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the  requirements set forth in the Loan Documents for being the maker thereof).    





 






  150  (c) Each of the Loan Parties and each Credit Party hereby waives (i) any argument,  defense or right to contest the legal effect, validity or enforceability of this Agreement or any other  Loan Document based solely on the lack of paper original copies of this Agreement or such other  Loan Document, and (ii) waives any claim against the Administrative Agent, each Credit Party and  each Related Party for any liabilities arising solely from the Administrative Agent’s and/or any  Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result  of the failure of the Loan Parties to use any available security measures in connection with the  execution, delivery or transmission of any Electronic Signature.  11.20 USA Patriot Act Notice.  Each Lender that is subject to the Patriot Act and the  Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the  other Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107– 56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record  information that identifies the Borrower and each other Loan Party, which information includes the name  and address of the Borrower and each other Loan Party and other information that will allow such Lender  or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in  accordance with the Patriot Act. The Borrower and each other Loan Party shall, promptly following a  request by the Administrative Agent or any Lender, provide all such other documentation and information  that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under  applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot  Act.  11.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Solely  to the extent any Lender or L/C Issuer that is an Affected Financial Institution is a party to this Agreement  and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any Lender  or L/C Issuer that is an Affected 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 Affected  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 the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  Lender or L/C Issuer that is an Affected  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 Affected Financial Institution, its parent undertaking, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such shares  or other instruments of ownership will be accepted by it in lieu of any rights with respect  to any such liability under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the Write-Down and Conversion Powers of the applicable Resolution Authority.  11.22 Acknowledgement Regarding Any Supported QFCs.   To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other  agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  





 






  151  the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit  Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported  QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States  or any other state of the United States):   In the event a Covered Entity that is party to a Supported QFC  (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the  transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such  Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent  as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such  QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws  of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of  a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights  under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support  that may be exercised against such Covered Party are permitted to be exercised to no greater extent than  such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC  and the Loan Documents were governed by the laws of the United States or a state of the United States.  Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with  respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a  Supported QFC or any QFC Credit Support.    11.23 Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is  necessary to convert a sum due hereunder or any other Loan Document in one currency into another  currency, the rate of exchange used shall be that at which in accordance with normal banking procedures  the Administrative Agent could purchase the first currency with such other currency on the Business Day  preceding that on which final judgment is given. The obligation of each Loan Party in respect of any such  sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents  shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which  such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement  Currency”), be discharged only to the extent that on the Business Day following receipt by the  Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment  Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal  banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the  Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any  Lender from any Loan Party in the Agreement Currency, such Loan Party agrees, as a separate obligation  and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case  may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum  originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or  such Lender, as the case may be, agrees to return the amount of any excess to such Loan Party (or to any  other Person who may be entitled thereto under Applicable law).  11.24 Transitional Arrangements.  This Agreement shall supersede and amend and restate the  Prior Credit Agreement in its entirety, except as provided in this Section 11.24 and Section 2.03(s), and this  Agreement shall not constitute a novation of the obligations and liabilities of the parties under the Prior  Credit Agreement.  At the Closing Date, the rights and obligations of the parties under the Prior Credit  Agreement and the “Revolving Notes” defined therein shall be subsumed within and be governed by this  Agreement and the Revolving Notes; provided, however, that (x) any of the “Loans” (as defined in the Prior  Credit Agreement) outstanding under the Prior Credit Agreement and not prepaid at the Closing Date shall,  for purposes of this Agreement, be Loans hereunder, and (y) this Agreement shall not in any way release  or impair the rights, duties or obligations created pursuant to the Prior Credit Agreement or any other Loan  





 






  152  Document or affect the relative priorities thereof, in each case to the extent in force and effect thereunder  as of the Closing Date, except as modified hereby or by documents, instruments and agreements executed  and delivered in connection herewith, and all of such rights, duties and obligations are assumed, ratified  and affirmed by the Borrower and the other Loan Parties.    [Remainder of page intentionally left blank]  





 






  [Signature page of Credit Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as  of the date first above written.  BORROWER    AMERESCO, INC.      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole  Title: Treasurer, Senior Vice President and  Chief Financial Officer  GUARANTORS    AMERESCO ENERTECH, INC.  AMERESCO FEDERAL SOLUTIONS, INC.  AMERESCO PLANERGY HOUSING, INC.  AMERESCO SELECT, INC.  AMERESCOSOLUTIONS, INC.  APPLIED ENERGY GROUP INC.  JUICE TECHNOLOGIES, INC.  SIERRA ENERGY COMPANY      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole   Title: Vice President and Treasurer  AMERESCO SOUTHWEST, INC.      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole   Title: Vice President and Treasurer  E.THREE CUSTOM ENERGY SOLUTIONS, LLC,  By: Sierra Energy Company, its sole member      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole   Title: Vice President and Treasurer     





 






  [Signature page of Credit Agreement]  AMERESCO ASSET SUSTAINABILITY GROUP LLC  AMERESCO CT LLC  AMERESCO DELAWARE ENERGY LLC  AMERESCO EVANSVILLE, LLC  AMERESCO HAWAII LLC  AMERESCO INTELLIGENT SYSTEMS, LLC  AMERESCO LFG HOLDINGS LLC  AMERESCO NAVY YARD PEAKER LLC  AMERESCO PALMETTO LLC  AMERESCO SOLAR, LLC  AMERESCO SOLAR NEWBURYPORT LLC  AMERESCO STAFFORD LLC  SELDERA LLC  SOLUTIONS HOLDINGS, LLC    By: Ameresco, Inc., its sole member      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole   Title: Treasurer, Senior Vice President and  Chief Financial Officer  AMERESCO SOLAR – PRODUCTS LLC  AMERESCO SOLAR – SOLUTIONS LLC  AMERESCO SOLAR – TECHNOLOGIES LLC  By: Ameresco Solar LLC, its sole member  By:  Ameresco, Inc., its sole member      By: /s/ Spencer Doran Hole    Name: Spencer Doran Hole   Title: Treasurer, Senior Vice President and   Chief Financial Officer  





 






  [Signature page of Credit Agreement]  AGENT    BANK OF AMERICA, N.A.,  as Agent      By: /s/ Henry Pennell       Name: Henry Pennell   Title: Vice President     





 






  [Signature page of Credit Agreement]  LENDER    BANK OF AMERICA, N.A.,  as Lender, L/C Issuer, and Swingline Lender      By: /s/John F. Lynch       Name: John F. Lynch   Title:  Senior Vice President     





 






  [Signature page of Credit Agreement]  LENDER   FIFTH THIRD BANK      By: /s/ Natalie Trojan       Name: Natalie Trojan   Title: Executive Director     





 






  [Signature page of Credit Agreement]  LENDER   KEYBANK NATIONAL ASSOCIATION      By: /s/ Renee M. Bonnell       Name: Renee M. Bonnell   Title: Senior Vice President     





 






  [Signature page of Credit Agreement]  LENDER   WEBSTER BANK, N.A.      By: /s/ Samuel Pepe        Name: Samuel Pepe   Title: Vice President     





 






  [Signature page of Credit Agreement]  LENDER   PEOPLE’S UNITED BANK, NATIONAL  ASSOCIATION      By: /s/ Kathryn Williams       Name:  Kathryn Williams   Title: SVP