conformedgatxcragmt2016







   NYDOCS02/1089790   EXECUTION COPY      FIVE YEAR CREDIT AGREEMENT   Dated as of May 26, 2016   Among   GATX CORPORATION   as Borrower   and   THE INITIAL LENDERS NAMED HEREIN   as Initial Lenders   and   CITIBANK, N.A.   as Administrative Agent       and      CITIGROUP GLOBAL MARKETS INC.   and   MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED   as Joint Lead Arrangers and Joint Book Managers      and   BANK OF AMERICA, N.A.   as Syndication Agent       and   PNC BANK, NATIONAL ASSOCIATION   U.S. BANK NATIONAL ASSOCIATION   and   BAYERISCHE LANDESBANK, NEW YORK BRANCH   as Co-Documentation Agents         





 






   NYDOCS02/1089790      TABLE OF CONTENTS   ARTICLE I 1   SECTION 1.01.  Certain Defined Terms 1   SECTION 1.02.  Computation of Time Periods 16   SECTION 1.03.  Accounting Terms 16   ARTICLE II 17   SECTION 2.01.  The Advances and Letters of Credit 17   SECTION 2.02.  Making the Advances 18   SECTION 2.03.  Issuance of and Drawings and Reimbursement Under Letters of   Credit 20   SECTION 2.04.  Fees 22   SECTION 2.05.  Optional Termination or Reduction of the Commitments 22   SECTION 2.06.  Repayment 23   SECTION 2.07.  Interest on Advances 24   SECTION 2.08.  Interest Rate Determination 24   SECTION 2.09.  Optional Conversion of Advances 25   SECTION 2.10.  Prepayments of Advances 26   SECTION 2.11.  Increased Costs 26   SECTION 2.12.  Illegality 27   SECTION 2.13.  Payments and Computations 27   SECTION 2.14.  Taxes 28   SECTION 2.15.  Sharing of Payments, Etc. 29   SECTION 2.16.  Evidence of Debt 30   SECTION 2.17.  Use of Proceeds 30   SECTION 2.18.  Increase in the Aggregate Commitments 30   SECTION 2.19.  Extension of Termination Date 32     





 






    ii   NYDOCS02/1089790   SECTION 2.20.  Defaulting Lender 33   SECTION 2.21.  Replacement of Lenders 35   ARTICLE III 36   SECTION 3.01.  Conditions Precedent to Effectiveness of Section 2.01 36   SECTION 3.03.  Conditions Precedent to Each Borrowing, Commitment Increase,   Extension Date and Issuance. 37   SECTION 3.03.  Determinations Under Section 3.01 37   ARTICLE IV 38   SECTION 4.01.  Representations and Warranties 38   ARTICLE V 40   SECTION 5.01.  Affirmative Covenants 40   SECTION 5.02.  Negative Covenants 43   SECTION 5.03.  Financial Covenant 45   ARTICLE VI 46   SECTION 6.01.  Events of Default 46   SECTION 6.02.  Actions in Respect of the Letters of Credit upon Default 47   ARTICLE VII 48   SECTION 7.01.  Appointment and Authority 48   SECTION 7.02.  Rights as a Lender 48   SECTION 7.03.  Exculpatory Provisions 48   SECTION 7.04.  Reliance by Agent 49   SECTION 7.05.  Indemnification 49   SECTION 7.06.  Delegation of Duties 50   SECTION 7.07.  Resignation of Agent 50   SECTION 7.08.  Non-Reliance on Agent and Other Lenders 51   SECTION 7.09.  No Other Duties, etc 51     





 






    iii   NYDOCS02/1089790   ARTICLE VIII 52   SECTION 8.01.  Amendments, Etc. 52   SECTION 8.02.  Notices, Etc. 52   SECTION 8.03.  No Waiver; Remedies 54   SECTION 8.04.  Costs and Expenses 54   SECTION 8.05.  Right of Set-off 55   SECTION 8.06.  Binding Effect 55   SECTION 8.07.  Assignments and Participations 56   SECTION 8.08.  Confidentiality 59   SECTION 8.09.  Governing Law 59   SECTION 8.10.  Execution in Counterparts 60   SECTION 8.11.  Jurisdiction, Etc. 60   SECTION 8.12.  No Liability of the Issuing Banks 60   SECTION 8.13.  Patriot Act 61   SECTION 8.14.  Acknowledgement and Consent to Bail-In of EEA Financial   Institutions 61   SECTION 8.14.  Waiver of Jury Trial 63     





 






    iv   NYDOCS02/1089790      Schedules   Schedule I - Commitments   Schedule 2.01(b) – Existing Letters of Credit   Exhibits   Exhibit A  - Form of Note   Exhibit B  - Form of Notice of Borrowing   Exhibit C  - Form of Assignment and Assumption   Exhibit D  - Form of Opinion of Counsel for the Borrower     





 






   NYDOCS02/1089790   FIVE YEAR CREDIT AGREEMENT   Dated as of May 26, 2016   GATX CORPORATION, a New York corporation (the “Borrower”), the banks, financial   institutions and other institutional lenders (the “Initial Lenders”) and initial issuing banks (the “Initial   Issuing Banks”) listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and   MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as joint lead arrangers and joint   book managers, BANK OF AMERICA, N.A., as syndication agent, PNC BANK, NATIONAL   ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION and BAYERISCHE LANDESBANK, NEW   YORK BRANCH, as co-documentation agents, and CITIBANK, N.A. (“Citibank”), as administrative   agent (the “Agent”) for the Lenders (as hereinafter defined), agree as follows:   ARTICLE I   DEFINITIONS AND ACCOUNTING TERMS   SECTION 1.01.  Certain Defined Terms.  As used in this Agreement, the following terms   shall have the following meanings (such meanings to be equally applicable to both the singular and plural   forms of the terms defined):   “Administrative Questionnaire” means an Administrative Questionnaire in a form   supplied by the Agent.   “Advance” means a Revolving Credit Advance or a Swing Line Advance.   “Affiliate” means, with respect to a specified Person, another Person that directly, or   indirectly through one or more intermediaries, Controls or is Controlled by or is under common   Control with the Person specified.   “Agent’s Account” means the account of the Agent maintained by the Agent at Citibank   at its office at 388 Greenwich Street, New York, New York 10013, Account No. 36852248,   Attention:  Bank Loan Syndications.   “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction   applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery   or corruption.    “Applicable Lending Office” means, with respect to each Lender, such Lender’s   Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar   Lending Office in the case of a Eurodollar Rate Advance.   “Applicable Margin” means, as of any date, a percentage per annum determined by   reference to the Public Debt Rating in effect on such date as set forth below:      Public Debt Rating   S&P/Moody’s   Applicable Margin for   Eurodollar Rate Advances   Applicable Margin for   Base Rate Advances   Level 1   A-/ A3 or above      0.910%      0.000%     





 






    2   NYDOCS02/1089790   Level 2   BBB+ / Baa1      1.015%      0.015%   Level 3   BBB / Baa2      1.100%      0.100%   Level 4   BBB- / Baa3      1.300%      0.300%   Level 5   Lower than Level 4      1.500%      0.500%      “Applicable Percentage” means, as of any date, a percentage per annum determined by   reference to the Public Debt Rating in effect on such date as set forth below:      Public Debt Rating   S&P/Moody’s   Applicable   Percentage   Level 1   A-/ A3 or above      0.090%   Level 2   BBB+ / Baa1      0.110%   Level 3   BBB / Baa2      0.150%   Level 4   BBB- / Baa3      0.200%   Level 5   Lower than Level 4      0.250%      “Assignment and Assumption” means an assignment and assumption entered into by a   Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of   Exhibit C hereto.   “Assuming Lender” has the meaning specified in Section 2.18(b).   “Assumption Agreement” has the meaning specified in Section 2.18(c)(ii).   “Available Amount” of any Letter of Credit means, at any time, the maximum amount   available to be drawn under such Letter of Credit at such time (assuming compliance at such time   with all conditions to drawing).   “Bail-In Action” has the meaning specified in Section 8.14.   “Base Rate” means a fluctuating interest rate per annum in effect from time to time,   which rate per annum shall at all times be equal to the highest of:   (a) the rate of interest announced publicly by Citibank in New York,   New York, from time to time, as Citibank’s base rate; and   (b) 1⁄2 of one percent per annum above the Federal Funds Rate; and    (c) the London interbank offered rate for deposits in U.S. dollars for a period   of one month (“One Month LIBOR”), provided that, if One Month LIBOR shall be less   than zero, such rate shall be deemed zero for purposes of this Agreement);  plus 1.00%     





 






    3   NYDOCS02/1089790   (for the avoidance of doubt, the One Month LIBOR for any day shall be based on the rate   appearing on Reuters Screen LIBOR01 Page (or other commercially available source   providing such quotations as designated by the Agent from time to time) at   approximately 11:00 a.m. London time on such day).   “Base Rate Advance” means an Advance that bears interest as provided in   Section 2.07(a)(i).   “Borrower Information” has the meaning specified in Section 8.08.   “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing.   “Business Day” means a day of the year other than Saturday or Sunday or a day on which   banks are not required or authorized by law to close in New York City, Chicago, Illinois and, if   the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are   carried on in the London interbank market.   “Capital Lease Obligations” of any Person means the obligations of such Person to pay   rent or other amounts under any lease of (or other arrangement conveying the right to use) real or   personal property, or a combination thereof, which obligations are required to be classified and   accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of   such obligations shall be the capitalized amount thereof determined in accordance with GAAP.   “Cash Collateralize” means, in respect of an obligation, provide and pledge (as a first   priority perfected security interest) cash collateral in U.S. dollars, at a location and pursuant to   documentation in form and substance satisfactory to the Agent, each Issuing Bank and each   Swing Line Bank (and “Cash Collateralization” has a corresponding meaning).   “Change in Control” means (a) the acquisition of ownership, directly or indirectly,   beneficially or of record, by any Person or group (within the meaning of the Securities Exchange   Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on   the date hereof), of shares representing more than 50% of the aggregate ordinary voting power   represented by the issued and outstanding capital stock of the Borrower; or (b) for the period of   12 consecutive months, a majority of the Board of Directors of the Borrower shall no longer be   composed of individuals (i) who were members of said Board on the first day of such period,   (ii) whose election or nomination to said Board was approved by individuals referred to in   clause (i) above constituting at the time of such election or nomination at least a majority of said   Board or (iii) whose election or nomination to said Board 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 said Board.   “Code” means the Internal Revenue Code of 1986, as amended from time to time.   “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.   “Commitment” means a Revolving Credit Commitment, a Letter of Credit Commitment   or a Swing Line Commitment.     





 






    4   NYDOCS02/1089790   “Commitment Date” has the meaning specified in Section 2.18(b).   “Commitment Increase” has the meaning specified in Section 2.18(a).   “Consenting Lender” has the meaning specified in Section 2.19(b).   “Consolidated” refers to the consolidation of accounts in accordance with GAAP.   “Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of   one Type into Advances of the other Type pursuant to Section 2.08 or 2.09.   “Default” means any event or condition which constitutes an Event of Default or which   upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.   “Defaulting Lender” means, at any time, subject to Section 2.20(c), (i) any Lender that   has failed for three or more Business Days to comply with its obligations under this Agreement to   make an Advance, make a payment to an Issuing Bank in respect of drawing under a Letter of   Credit, make a payment to a Swing Line Bank in respect of a Swing Line Advance or make any   other payment due hereunder (each, a “funding obligation”), unless such Lender has notified the   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 has not been satisfied (which conditions   precedent, together with the applicable default, if any, will be specifically identified in such   writing), (ii) any Lender that has notified the Agent, the Borrower, an Issuing Bank or a Swing   Line Bank in writing, or has stated publicly, that it does not intend to comply with its funding   obligations hereunder, unless such writing or statement states that such position is based on such   Lender’s determination that one or more conditions precedent to funding cannot be satisfied   (which conditions precedent, together with the applicable default, if any, will be specifically   identified in such writing or public statement), (iii) any Lender that has defaulted on its funding   obligations under other loan agreements or credit agreements generally under which it has   commitments to extend credit or that has notified, or whose Parent Company has notified, the   Agent or the Borrower in writing, or has stated publicly, that it does not intend to comply with its   funding obligations under loan agreements or credit agreements generally, (iv) any Lender that   has, for three or more Business Days after written request of the Agent or the Borrower, failed to   confirm in writing to the Agent and the Borrower that it will comply with its prospective funding   obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to   this clause (iv) upon the Agent’s and the Borrower’s receipt of such written confirmation), or (v)   any Lender with respect to which, or with respect to the Parent Company of which, a Lender   Insolvency Event has occurred and is continuing; provided that a Lender Insolvency Event shall   not be deemed to occur with respect to a Lender or its Parent Company solely as a result of the   acquisition or maintenance of an ownership interest in such Lender or Parent Company by a   Governmental Authority or instrumentality thereof where such action 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 or instrumentality) to reject, repudiate, disavow or disaffirm any   contracts or agreements made with such Lender.  Any determination by the Agent that a Lender is   a Defaulting Lender under any of clauses (i) through (v) above will be conclusive and binding   absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to   Section 2.20(c)) upon notification of such determination by the Agent to the Borrower, the   Issuing Banks, the Swing Line Banks and the Lenders.      





 






    5   NYDOCS02/1089790   “Disclosed Litigation” means litigation disclosed in any filing made by the Borrower or   any of its Subsidiaries prior to the date hereof pursuant to the Securities and Exchange Act of   1934, as amended.   “Domestic Lending Office” means, with respect to any Lender, the office of such Lender   specified as its “Domestic Lending Office” in its Administrative Questionnaire delivered to the   Agent, or such other office of such Lender as such Lender may from time to time specify to the   Borrower and the Agent.   “Effective Date” has the meaning specified in Section 3.01, which is May 26, 2016.   “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender that is in the business   of making and/or buying loans of the type described herein; and (iii) any other Person approved   by the Agent, each Issuing Bank, each Swing Line Bank and, unless an Event of Default has   occurred and is continuing at the time any assignment is effected in accordance with Section 8.07,   the Borrower, such approvals not to be unreasonably withheld or delayed; provided, however,   that neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.   “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,   decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered   into by any Governmental Authority, relating in any way to the environment, preservation or   reclamation of natural resources, the management, release or threatened release of any Hazardous   Material or to health and safety matters.   “Environmental Liability” means any liability, contingent or otherwise (including any   liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the   Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon   (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,   treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,   (d) the release or threatened release of any Hazardous Materials into the environment or (e) any   contract, agreement or other consensual arrangement pursuant to which liability is assumed or   imposed with respect to any of the foregoing.   “ERISA” means the Employee Retirement Income Security Act of 1974, as amended   from time to time.   “ERISA Affiliate” means any trade or business (whether or not incorporated) that,   together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the   Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a   single employer under Section 414 of the Code.   “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA   or the regulations issued thereunder with respect to a Plan (other than an event for which the 30   day notice period is waived); (b) with respect to any Plan, the failure to satisfy the minimum   funding standard described in Section 412 of the Code or Section 302 of ERISA, whether or not   waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an   application for a waiver of the minimum funding standard with respect to any Plan; (d) the   incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of   ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA   Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate   any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the     





 






    6   NYDOCS02/1089790   Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial   withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any   ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or   any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a   determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,   within the meaning of Title IV of ERISA or is in “endangered” or “critical” status within the   meaning of Section 432 of the Code or Section 305 of ERISA.   “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the   Board of Governors of the Federal Reserve System, as in effect from time to time.   “Eurodollar Lending Office” means, with respect to any Lender, the office of such   Lender specified as its “Eurodollar Lending Office” in its Administrative Questionnaire delivered   to the Agent, or such other office of such Lender as such Lender may from time to time specify to   the Borrower and the Agent.   “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance   comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum   obtained by dividing (a) the London interbank offered rate as administered by the ICE   Benchmark Administration (or any other Person that takes over the administration of such rate)   (the “ICE LIBOR”) for U.S. dollars for a period equal in length to such Interest Period as   displayed on page LIBOR01 of the Reuters Screen that displays such rate (or, in the event such   rate does not appear on a Reuters page or screen, on any successor or substitute page on such   screen that displays such rate, or on the appropriate page of such other information service that   publishes such rate from time to time as selected by the Agent in its reasonable discretion; in each   case, the “Screen Rate”) at approximately 11:00 A.M. (London time) two Business Days prior to   the first day of such Interest Period for a term comparable to such Interest Period or, if for any   reason such rate is not available for the applicable Interest Period but is available for periods that   are shorter than and longer than such Interest Period, the rate per annum that results from   interpolating on a linear basis between the rate for the longest available period that is shorter than   such Interest Period and the shortest available period that is longer than such Interest Period with   respect to such Eurodollar Rate Advance, then the Eurodollar Rate shall be such interpolated   screen rate (the “Interpolated Rate”); provided that if, at the time that the Agent shall seek to   determine the relevant Screen Rate for any Interest Period for a Eurodollar Borrowing, the Screen   Rate shall not be available for such Interest Period and/or for U.S. dollars for any reason and the   Agent shall determine that it is not possible to determine the Interpolated Rate (which conclusion   shall be conclusive and binding absent manifest error), then, subject to Section 2.08, the   applicable Reference Bank Rate shall be the Eurodollar Rate for such Interest Period for such   Eurodollar Rate Advances, by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve   Percentage for such Interest Period; provided, further, that if any of the Screen Rate, the   Interpolated Rate or any Reference Bank Rate shall be less than zero, such rate shall be deemed to   be zero for purposes of this Agreement.   “Eurodollar Rate Advance” means an Advance that bears interest as provided in   Section 2.07(a)(ii).   “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate   Advances comprising part of the same Borrowing means the reserve percentage applicable two   Business Days before the first day of such Interest Period under regulations issued from time to   time by the Board of Governors of the Federal Reserve System (or any successor) for determining   the maximum reserve requirement (including, without limitation, any emergency, supplemental     





 






    7   NYDOCS02/1089790   or other marginal reserve requirement) for a member bank of the Federal Reserve System in   New York City with respect to liabilities or assets consisting of or including Eurocurrency   Liabilities (or with respect to any other category of liabilities that includes deposits by reference   to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such   Interest Period.   “Events of Default” has the meaning specified in Section 6.01.   “Excluded Taxes” means, with respect to the Agent, any Lender or any other recipient of   any payment to be made by or on account of any obligation of the Borrower hereunder,   (a) income or franchise taxes imposed on (or measured by) its net income by the United States of   America, or by the jurisdiction under the laws of which such recipient is organized or in which its   principal office is located or, in the case of any Lender, in which its applicable lending office is   located, (b) any branch profits taxes imposed by the United States of America or any similar tax   imposed by any other jurisdiction in which the Lender or such other recipient is located, (c) in the   case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under   Section 2.21), any United States withholding tax that is imposed on amounts payable to such   Foreign Lender at the time such Foreign Lender becomes a party to this Agreement or is   attributable to such Foreign Lender’s failure or inability to comply with Section 2.14(e), except to   the extent that such Foreign Lender’s assignor (if any) was entitled, at the time of assignment, to   receive additional amounts from the Borrower with respect to such withholding tax pursuant to   Section 2.14(a), (d) any taxes imposed pursuant to FATCA, and (e) all liabilities, penalties, and   interest incurred with respect to any of the foregoing.   “Existing Letter of Credit” has the meaning specified in Section 2.01(b).   “Extension Date” has the meaning specified in Section 2.19(b).   “Facility” means the Revolving Credit Facility, the Letter of Credit Facility or the Swing   Line Facility.   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this   Agreement (or any amended or successor version), any current or future regulations or official   interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code,   any published intergovernmental agreement entered into in connection with the implementation   of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted   pursuant to such published intergovernmental agreements.   “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal   to the rates on overnight Federal funds transactions with members of the Federal Reserve System,   as published for such day (or, if such day is not a Business Day, for the next preceding Business   Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day   that is a Business Day, the average of the quotations for such day on such transactions received   by the Agent from three Federal funds brokers of recognized standing selected by it; provided,   further, that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero   for purposes of this Agreement.   “Fed Funds Swing Line Advance” means a Swing Line Advance that bears interest as   provided in Section 2.07(a)(iii)(A).     





 






    8   NYDOCS02/1089790   “Financial Officer” means the chief financial officer, principal accounting officer,   treasurer or controller of the Borrower.   “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction   other than the United States of America, any State thereof or the District of Columbia.   “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to   any Issuing Bank, such Defaulting Lender’s Ratable Share of the aggregate Available Amount of   outstanding Letters of Credit and Revolving Credit Advances made by an Issuing Bank in   accordance with Section 2.03 with respect to Letters of Credit issued by such Issuing Bank that   have not been funded by the Lenders (collectively, the “L/C Exposure”) other than L/C Exposure   as to which such Defaulting Lender’s participation obligation has been reallocated to other   Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any   Swing Line Bank, such Defaulting Lender’s Ratable Share of outstanding Swing Line Advances   made by such Swing Line Bank other than Swing Line Advances as to which such Defaulting   Lender’s participation obligation has been reallocated to other Lenders.   “GAAP” means generally accepted accounting principles set forth in the Financial   Accounting Standards Board (FASB) Accounting Standards Codification (as amended from time   to time) or in such other statements by such other authoritative entity as may be approved by a   significant segment of the accounting profession in the United States, which are applicable to the   circumstances as of the date of determination.   “Governmental Authority” means the government of the United States of America, any   other nation or any political subdivision thereof, whether state or local, and any agency, authority,   instrumentality, regulatory body, court, central bank or other entity exercising executive,   legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to   government.   “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or   otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any   Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,   whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,   (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such   Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase   of) any security for the payment thereof, (b) to purchase or lease property, securities or services   for the purpose of assuring the owner of such Indebtedness or other obligation of the payment   thereof, (c) to maintain working capital, equity capital or any other financial statement condition   or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or   other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty   issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not   include endorsements for collection or deposit in the ordinary course of business.   “Hazardous Materials” means all explosive or radioactive substances or wastes and all   hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum   distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,   infectious or medical wastes and all other substances or wastes of any nature regulated pursuant   to any Environmental Law.     





 






    9   NYDOCS02/1089790   “Hedging Agreement” means any interest rate protection agreement, foreign currency   exchange agreement, commodity price protection agreement or other interest or currency   exchange rate or commodity price hedging arrangement.   “ICE LIBOR” has the meaning specified in the definition of “Eurodollar Rate.”   “Increase Date” has the meaning specified in Section 2.18(a).   “Increasing Lender” has the meaning specified in Section 2.18(b).   “Indebtedness” of any Person means, without duplication, (a) all obligations of such   Person for borrowed money or with respect to deposits or advances of any kind, (b) all   obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all   obligations of such Person upon which interest charges are customarily paid, (d) all obligations of   such Person under conditional sale or other title retention agreements relating to property   acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase   price of property or services (excluding current accounts payable incurred in the ordinary course   of business), (f) all Indebtedness of others secured by (or for which the holder of such   Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on   property owned or acquired by such Person, whether or not the Indebtedness secured thereby has   been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease   Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an   account party in respect of letters of credit and letters of guaranty and (j) all obligations,   contingent or otherwise, of such Person in respect of bankers’ acceptances; provided, however,   that “Indebtedness” shall not include (x) Secured Nonrecourse Obligations and (y) nonrecourse   obligations incurred in connection with leveraged lease transactions as determined in accordance   with GAAP.   “Indemnified Taxes” means Taxes other than Excluded Taxes.   “Information Memorandum” means the confidential information memorandum dated   May, 2016 used by the Agent in connection with the syndication of the Commitments.   “Interest Period” means, for each Eurodollar Rate Advance comprising part of the same   Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of   the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the   last day of the period selected by the Borrower pursuant to the provisions below and, thereafter,   each subsequent period commencing on the last day of the immediately preceding Interest Period   and ending on the last day of the period selected by the Borrower pursuant to the provisions   below.  The duration of each such Interest Period shall be one week or one, two, three or six   months or, subject to clause (c) of this definition, two or three weeks or twelve months, as the   Borrower may, upon notice not later than 1:00 P.M. (New York City time) on the third Business   Day prior to the first day of such Interest Period to the Agent (which shall promptly notify each of   the Lenders), select; provided, however, that:   (a) the Borrower may not select any Interest Period that ends after the final   Termination Date;   (b) Interest Periods commencing on the same date for Eurodollar Rate   Advances comprising part of the same Borrowing shall be of the same duration;     





 






    10   NYDOCS02/1089790   (c) in the case of any Borrowing, the Borrower shall not be entitled to select   an Interest Period having a duration of two or three weeks or twelve months unless, by   2:00 P.M. (New York City time) on the third Business Day prior to the first day of such   Interest Period, each Lender notifies the Agent that such Lender will be providing   funding for the Borrowing with such Interest Period (the failure of any Lender to so   respond by such time being deemed for all purposes of this Agreement as an objection by   such Lender to the requested duration of such Interest Period); provided that, if any or all   of the Lenders object to the requested duration of such Interest Period, the duration of the   Interest Period for such Borrowing shall be one week or one, two, three or six months, as   specified by the Borrower in the applicable Notice of Revolving Credit Borrowing as the   desired alternative to an Interest Period of two or three weeks or twelve months;   (d) whenever the last day of any Interest Period would otherwise occur on a   day other than a Business Day, the last day of such Interest Period shall be extended to   occur on the next succeeding Business Day, provided, however, that, if such extension   would cause the last day of such Interest Period to occur in the next following calendar   month, the last day of such Interest Period shall occur on the next preceding Business   Day; and   (e) whenever the first day of any Interest Period occurs on a day of an initial   calendar month for which there is no numerically corresponding day in the calendar   month that succeeds such initial calendar month by the number of months equal to the   number of months in such Interest Period, such Interest Period shall end on the last   Business Day of such succeeding calendar month.   “Interpolated Rate” has the meaning specified in the definition of “Eurodollar Rate.”   “Issuing Bank” means an Initial Issuing Bank, an Assuming Lender or any Eligible   Assignee to which a portion of the Letter of Credit Commitment hereunder has been assigned   pursuant to Section 8.07 or any other Lender so long as such Eligible Assignee or Lender   expressly agrees to perform in accordance with their terms all of the obligations that by the terms   of this Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of   its Applicable Lending Office and its Letter of Credit Commitment (which information shall be   recorded by the Agent in the Register), for so long as the Initial Issuing Bank, Assuming Lender,   Eligible Assignee or Lender, as the case may be, shall have a Letter of Credit Commitment.  Any   Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by   Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such   Affiliate with respect to any Letter of Credit issued by such Affiliate.    “L/C Cash Collateral Account” means an interest bearing cash collateral account to be   established and maintained by the Agent, over which the Agent shall have sole dominion and   control, upon terms as may be satisfactory to the Agent.   “L/C Exposure” has the meaning specified in the definition of “Fronting Exposure.”   “L/C Related Documents” has the meaning specified in Section 2.06(b)(i).   “Lender Insolvency Event” means that (i) a Lender or its Parent Company is insolvent, or   is generally unable to pay its debts as they become due, or admits in writing its inability to pay its   debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) a   Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization,     





 






    11   NYDOCS02/1089790   liquidation or similar proceeding or a Bail-In Action, or a receiver, trustee, conservator,   intervenor or sequestrator or the like has been appointed for a Lender or its Parent Company, or a   Lender or its Parent Company has taken any action in furtherance of or indicating its consent to   or acquiescence in any such proceeding or appointment.   “Lenders” means the Initial Lenders, each Issuing Bank, each Assuming Lender that shall   become a party hereto pursuant to Section 2.18 or 2.19 and each Person that shall become a party   hereto pursuant to Section 8.07.   “Letter of Credit Agreement” has the meaning specified in Section 2.03(a).   “Letter of Credit Commitment” means, with respect to each Initial Issuing Bank, the   amount set forth opposite the Initial Issuing Bank’s name on Schedule I hereto under the caption   “Letter of Credit Commitment” or, if such Initial Issuing Bank has entered into one or more   Assignment and Assumptions, the amount set forth for such Issuing Bank in the Register   maintained by the Agent pursuant to Section 8.07(c) as such Issuing Bank’s “Letter of Credit   Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05.   “Letter of Credit Facility” means, at any time, an amount equal to the lesser of (a) the   aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time and (b)   $40,000,000, as such amount may be reduced at or prior to such time pursuant to Section 2.05.   “Letters of Credit” has the meaning specified in Section 2.01(b).   “LIBOR Swing Line Advance” means a Swing Line Advance that bears interest as   provided in Section 2.07(a)(iii)(B).   “LIBO Rate” means, for any Swing Line Borrowing, an interest rate per annum equal to   the rate per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per annum)   appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank   offered rate for deposits in U.S. dollars at approximately 11:00 A.M. (London time) two Business   Days prior to the date of such Swing Line Borrowing for a term of one week or, if for any reason   such rate is not available, the average (rounded upward to the nearest whole multiple of 1/16 of   1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in   U.S. dollars are offered by the principal office of each of the Swing Line Banks in London,   England to prime banks in the London interbank market at 11:00 A.M. (London time) two   Business Days before the date of such Swing Line Borrowing in an amount substantially equal to   such Swing Line Bank’s Swing Line Advance comprising part of the applicable Swing Line   Borrowing and for a period equal to one week.   “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,   hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest   of a vendor or a lessor under any conditional sale agreement, capital lease or title retention   agreement (or any financing lease having substantially the same economic effect as any of the   foregoing) relating to such asset, other than an operating lease.   “Material Adverse Effect” means a material adverse effect on (a) the business, financial   condition, operations or properties of the Borrower and its Subsidiaries taken as a whole, (b) the   ability of the Borrower to perform any of its obligations under this Agreement (including the   timely payment of all amounts due hereunder), (c) the rights of or benefits available to the Agent   and the Lenders under this Agreement or (d) the validity or enforceability of this Agreement.     





 






    12   NYDOCS02/1089790   “Material Indebtedness” means Indebtedness (other than the Advances), or obligations in   respect of one or more Hedging Agreements, of any one or more of the Borrower and its   Subsidiaries in a principal amount exceeding $50,000,000.  For purposes of determining Material   Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in   respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving   effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if   such Hedging Agreement were terminated at such time.   “Material Subsidiary” means each Subsidiary that either (a) as of the end of the most   recently completed fiscal year of the Borrower for which audited financial statements are   available, has assets that exceed 5% of the total consolidated balance sheet assets of the Borrower   and all of its Subsidiaries, as of the last day of such period or (b) for the most recently completed   fiscal year of the Borrower for which audited financial statements are available, has revenues that   exceed 10% of the consolidated revenue of the Borrower and all of its Subsidiaries for such   period.   “Moody’s” means Moody’s Investors Service, Inc.   “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of   ERISA.   “Non-Consenting Lender” has the meaning specified in Section 2.19(b).   “Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.    “Note” means a promissory note of the Borrower payable to the order of any Lender,   delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A   hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the   Revolving Credit Advances made by such Lender.   “Notice of Issuance” has the meaning specified in Section 2.03(a).   “Notice of Revolving Credit Borrowing” has the meaning specified in Section 2.02(a).   “Notice of Swing Line Borrowing” has the meaning specified in Section 2.02(b).   “Other Taxes” means any and all present or future stamp or documentary taxes or any   other excise or property taxes, charges or similar levies arising from any payment made   hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this   Agreement.   “Parent Company” means, with respect to a Lender, the bank holding company (as   defined in Federal Reserve Board Regulation Y), if any, of such Lender, or if such Lender does   not have a bank holding company, then any corporation, association, partnership or other business   entity owning, beneficially or of record, directly or indirectly, a majority of the shares of such   Lender.   “Participant” has the meaning assigned to such term in clause (d) of Section 8.07.   “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in   ERISA and any successor entity performing similar functions.     





 






    13   NYDOCS02/1089790   “Permitted Encumbrances” means:   (a) Liens imposed by law for taxes or under ERISA in respect of contingent   liabilities thereunder that are not yet due or are being contested in compliance with   Section 5.01(d);   (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and   other like Liens imposed by law, arising in the ordinary course of business and securing   obligations that are not overdue by more than 30 days or are being contested in   compliance with Section 5.01(d);   (c) pledges and deposits made in the ordinary course of business in   compliance with workers’ compensation, unemployment insurance and other social   security laws or regulations;   (d) deposits to secure the performance of bids, trade contracts, leases,   statutory obligations, surety and appeal bonds, performance bonds and other obligations   of a like nature, in each case in the ordinary course of business;    (e) easements, zoning restrictions, rights-of-way and similar encumbrances   on real property imposed by law or arising in the ordinary course of business that do not   secure any monetary obligations and do not materially detract from the value of the   affected property or interfere with the ordinary conduct of business of the Borrower or   any of its Subsidiaries; and   (f) banker’s liens and rights of set-off;   provided that the term “Permitted Encumbrances” shall not include any Lien securing   Indebtedness.   “Person” means an individual, partnership, corporation (including a business trust), joint   stock company, trust, unincorporated association, joint venture, limited liability company or other   entity, or a government or any political subdivision or agency thereof.   “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)   subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of   ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were   terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in   Section 3(5) of ERISA.   “Public Debt Rating” means, as of any date, the rating that has been most recently   announced by either S&P or Moody’s, as the case may be, for any class of non-credit enhanced   long-term senior unsecured debt issued by the Borrower or, if any such rating agency shall have   issued more than one such rating, the lowest such rating issued by such rating agency.  For   purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt   Rating, the Applicable Margin and the Applicable Percentage shall be determined by reference to   the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating, the   Applicable Margin and the Applicable Percentage will be set in accordance with Level 5 under   the definition of “Applicable Margin” or “Applicable Percentage”, as the case may be; (c) if the   ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin   and the Applicable Percentage shall be based upon the higher rating unless such ratings differ by     





 






    14   NYDOCS02/1089790   two or more levels, in which case the applicable level will be deemed to be one level below the   higher of such levels; (d) if any rating established by S&P or Moody’s shall be changed, such   change shall be effective as of the date on which such change is first announced publicly by the   rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which   ratings are established, each reference to the Public Debt Rating announced by S&P or Moody’s,   as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may   be.   “Ratable Share” of any amount means, with respect to any Lender at any time, the   product of (a) a fraction the numerator of which is the amount of such Lender’s Revolving Credit   Commitment at such time and the denominator of which is the aggregate Revolving Credit   Commitments at such time and (b) such amount.   “Reference Bank Rate” means the arithmetic mean of the rates (rounded upward to four   decimal places) supplied to the Agent at its request by the Reference Banks as of 11:00 a.m.,   London time, two Business Days prior to the commencement of such Interest Period for   Advances in Dollars and the applicable Interest Period as the rate at which the relevant Reference   Bank could borrow funds in the London interbank market in Dollars and for the relevant period,   were it to do so by asking for and then accepting interbank offers in reasonable market size in that   currency and for that period.   “Reference Banks” means Citibank, Bank of America, N.A. and such other banks as may   be appointed by the Agent in consultation with the Borrower (with the consent of such bank).   “Register” has the meaning specified in Section 8.07(c).   “Related Parties” means, with respect to any Person, such Person’s Affiliates and the   partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and   representatives of such Person and of such Person’s Affiliates.   “Required Lenders” means at any time Lenders owed at least a majority in interest of the   then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders, or,   if no such principal amount is then outstanding, Lenders having at least a majority in interest of   the Revolving Credit Commitments; provided that if any Lender shall be a Defaulting Lender at   such time, there shall be excluded from the determination of Required Lenders at such time the   Revolving Credit Commitments of such Defaulting Lender at such time.   “Revolving Credit Advance” means an advance by a Lender to the Borrower as part of a   Revolving Credit Borrowing under Section 2.01(a), or by an Issuing Bank in accordance with   Section 2.03(c), and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which   shall be a “Type” of Advance).   “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving   Credit Advances of the same Type made by the Lenders.   “Revolving Credit Commitment” means as to any Lender (a) the amount set forth   opposite such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit   Commitment”, (b) if such Lender has become a Lender hereunder pursuant to an Assumption   Agreement, the amount set forth in such Assumption Agreement or (c) if such Lender has entered   into any Assignment and Assumption, the amount set forth for such Lender in the Register     





 






    15   NYDOCS02/1089790   maintained by the Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to   Section 2.05.   “Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’   Revolving Credit Commitments at such time.   “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.   “Sanctioned Country” means, at any time, a country or territory which is the subject or   target of any comprehensive territorial Sanctions (currently Cuba, Iran, North Korea, Sudan and   Syria).   “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related   list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.   Department of the Treasury or the U.S. Department of State, or any Person in which such listed   Person owns, directly or indirectly, a 50 percent or greater interest, or (b) any Person permanently   located, organized or resident in a Sanctioned Country.   “Sanctions” means economic or financial sanctions or trade embargoes imposed,   administered or enforced from time to time by (a) the Office of Foreign Assets Control of the   U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations   Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.   “Screen Rate” has the meaning specified in the definition of “Eurodollar Rate.”   “Secured Nonrecourse Obligations” means (i) secured obligations of the Borrower taken   on a consolidated basis where recourse of the payee of such obligations is expressly limited to an   assigned lease or loan receivable and the property related thereto, (ii) debt of Single Transaction   Subsidiaries or (iii) liabilities of the Borrower taken on a consolidated basis to manufacturers of   leased equipment where such liabilities are payable solely out of revenues derived from the   leasing or sale of such equipment; excluding, however, nonrecourse obligations incurred in   connection with leveraged lease transactions as determined in accordance with GAAP.   “Single Transaction Subsidiary” means any Subsidiary whose assets consist solely of   financing  transactions and the proceeds thereof with one or more obligors where the obligations   of such Subsidiary are not guaranteed by the Borrower or any other Subsidiary and for which   neither the Borrower nor such other Subsidiary is liable.   “subsidiary” means, with respect to any Person (the “Parent”) at any date, any other   Person that, as of such date, 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 well as any other Person of which securities or other ownership   interests representing more than 50% of the equity or more than 50% of the ordinary voting   power or, in the case of a partnership, more than 50% of the general partnership interests are, as   of such date, owned, controlled or held.   “Subsidiary” means any subsidiary of the Borrower.   “Swing Line Advance” means an advance made by any Swing Line Bank pursuant to   Section 2.01(c) or any Lender pursuant to Section 2.02(b).     





 






    16   NYDOCS02/1089790   “Swing Line Bank” means Citibank, any other Lender that expressly agrees to perform in   accordance with their terms all of the obligations that by the terms of this Agreement are required   to be performed by it as an Swing Line Bank and notifies the Agent of its Swing Line   Commitment, or their respective successors and assigns.   “Swing Line Borrowing” means a borrowing consisting of a Swing Line Advance made   by any Swing Line Bank.   “Swing Line Commitment” means with respect to any Swing Line Bank at any time the   amount set forth opposite such Swing Line Bank’s name on Schedule I hereto, as such amount   may be reduced pursuant to Section 2.05.   “Swing Line Facility” has the meaning specified in Section 2.01(c).   “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,   charges or withholdings imposed by any Governmental Authority.   “Termination Date” means the earlier of (a) May 26, 2021, subject to the extension   thereof pursuant to Section 2.19 and (b) the date of termination in whole of the Commitments   pursuant to Section 2.05 or 6.01; provided, however, that the Termination Date of any Lender that   is a Non-Consenting Lender to any requested extension pursuant to Section 2.19 shall be the   Termination Date in effect immediately prior to the applicable Extension Date for all purposes of   this Agreement.   “Transactions” means the execution, delivery and performance by the Borrower of this   Agreement, the borrowing of Advances, the issuance of Letters of Credit and the use of the   proceeds thereof.   “Unused Revolving Credit Commitment” means, with respect to each Lender at any time,   (a) such Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the   aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender)   and outstanding at such time, plus (ii) such Lender’s Ratable Share of (A) the aggregate Available   Amount of all the Letters of Credit outstanding at such time, (B) the aggregate principal amount   of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably   funded by such Lender and outstanding at such time and (C) the aggregate principal amount of all   Swing Line Advances then outstanding, in each case after giving effect to any adjustments made   in accordance with Section 2.20(a).   “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete   or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of   Subtitle E of Title IV of ERISA.   SECTION 1.02.  Computation of Time Periods.  In this Agreement in the computation of   periods of time from a specified date to a later specified date, the word “from”  means “from and   including” and the words “to” and “until” each mean “to but excluding”.   SECTION 1.03.  Accounting Terms.  All accounting terms not specifically defined herein   shall be construed in accordance with GAAP in effect from time to time.  All computations determining   compliance with financial covenants or terms shall be prepared in accordance with GAAP in effect from   time to time.  If at any time any change in GAAP or the required adoption by the Borrower of   international financial reporting standards would affect the computation of any financial ratio or     





 






    17   NYDOCS02/1089790   requirement set forth in this Agreement, and either the Borrower or the Majority Lenders shall so request,   the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement   to preserve the original intent thereof in light of such change in GAAP or the adoption of such   international financial reporting standards (subject to the approval of the Majority 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 or the adoption of such international financial reporting standards and   (ii) the Borrower shall provide to the 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 or   the adoption of such international financial reporting standards.   ARTICLE II   AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT   SECTION 2.01.  The Advances and Letters of Credit.  (a)  Revolving Credit Advances.    Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit   Advances to the Borrower from time to time on any Business Day during the period from the Effective   Date until the Termination Date applicable to such Lender in an amount not to exceed at any time such   Lender’s Unused Revolving Credit Commitment.  Each Borrowing shall be in an aggregate amount of   $1,000,000 or an integral multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit   Advances of the same Type made on the same day by the Lenders ratably according to their respective   Revolving Credit Commitments.  Within the limits of each Lender’s Revolving Credit Commitment, the   Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this   Section 2.01(a).   (b) Letters of Credit.  Each Issuing Bank agrees, on the terms and conditions   hereinafter set forth, to issue letters of credit (each, a “Letter of Credit”) for the account of the Borrower   from time to time on any Business Day during the period from the Effective Date until 30 days before the   final Termination Date in an aggregate Available Amount (i) for all Letters of Credit not to exceed at any   time the Letter of Credit Facility at such time, (ii) for all Letters of Credit issued by each Issuing Bank not   to exceed at any time the lesser of such Issuing Bank’s Letter of Credit Commitment at such time and   such Issuing Bank’s Unused Revolving Credit Commitment at such time and (iii) for each such Letter of   Credit not to exceed an amount equal to the Unused Revolving Credit Commitments of the Lenders at   such time.  Each Letter of Credit shall be for an amount of $40,000 or more.  No Letter of Credit shall   have an expiration date (including all rights of the Borrower or the beneficiary to require renewal) later   than the earlier of (x) the date that is one year after the date of issuance thereof or (y) 10 Business Days   prior to the Termination Date, provided that no Letter of Credit may expire after the Termination Date of   any Non-Consenting Lender if, after giving effect to such issuance, the aggregate Revolving Credit   Commitments of the Consenting Lenders (including any replacement Lenders) for the period following   such Termination Date would be less than the sum of the Available Amount of the Letters of Credit   expiring after such Termination Date plus the aggregate outstanding Revolving Credit Advances of the   Consenting Lenders.  Within the limits referred to above, the Borrower may request the issuance of   Letters of Credit under this Section 2.01(b), repay any Revolving Credit Advances resulting from   drawings thereunder pursuant to Section 2.03(c) and request the issuance of additional Letters of Credit   under this Section 2.01(b).  Each letter of credit listed on Schedule 2.01(b) (the “Existing Letters of   Credit”) shall be deemed to constitute a Letter of Credit issued hereunder, and each Lender that is an   issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed to be an Issuing Bank for   each such letter of credit, provided than any renewal or replacement of any such letter of credit shall be   issued by an Issuing Bank pursuant to the terms of this Agreement.     





 






    18   NYDOCS02/1089790   (c) The Swing Line Advances.  Each Swing Line Bank severally agrees, on the   terms and conditions hereinafter set forth, to make Swing Line Advances to the Borrower from time to   time on any Business Day during the period from the Effective Date until the Termination Date applicable   to such Swing Line Bank (i) in an aggregate amount not to exceed at any time outstanding (x) the lesser   of such Swing Line Bank’s Swing Line Commitment and such Swing Line Bank’s Unused Revolving   Credit Commitment at such time or (y) for all Swing Line Advances, $30,000,000 (the “Swing Line   Facility”) and (ii) in an amount for each such Advance not to exceed the aggregate Unused Revolving   Credit Commitments of the Lenders at such time.  No Swing Line Advance shall be used for the purpose   of funding the payment of principal of any other Swing Line Advance.  Each Swing Line Borrowing shall   be in an amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof.  Within the limits   referred to above, the Borrower may borrow under this Section 2.01(c), prepay pursuant to Section 2.10   and reborrow under this Section 2.01(c).   SECTION 2.02.  Making the Advances.  (a)  Except as otherwise provided in Section   2.02(b) or Section 2.03(c), each Borrowing shall be made on notice, given not later than (x) 1:00 P.M.   (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case   of a Borrowing consisting of Eurodollar Rate Advances or (y) 1:00 P.M. (New York City time) on the   date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the   Borrower to the Agent, which shall give to each Lender prompt notice thereof by facsimile.  Each such   notice of a Borrowing (a “Notice of Revolving Credit Borrowing”) shall be by telephone, confirmed   immediately in writing, or facsimile in substantially the form of Exhibit B hereto, specifying therein the   requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate   amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,   initial Interest Period for each such Advance.  Each Lender shall, before 3:00 P.M. (New York City time)   on the date of such Borrowing make available for the account of its Applicable Lending Office to the   Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing.  After   the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III,   the Agent will make such funds available to the Borrower at the Borrower’s account as specified in   writing by two Financial Officers of the Borrower; provided, however, that the Agent shall first make a   portion of such funds equal to the aggregate principal amount of any Swing Line Advances made by the   Swing Line Banks and by any other Lender and outstanding on the date of such Revolving Credit   Borrowing, plus interest accrued and unpaid thereon to and as of such date, available to the Swing Line   Banks and such other Lenders for repayment of such Swing Line Advances.   (b) Each Swing Line Borrowing shall be made on notice, given not later than 3:00   P.M. (New York City time) on the date of the proposed Swing Line Borrowing by the Borrower to each   Swing Line Bank and the Agent, of which the Agent shall give prompt notice to the Lenders.  Each such   notice of a Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone,   confirmed at once in writing, or facsimile, specifying therein the requested (i) date of such Borrowing, (ii)   amount of such Borrowing, (iii) maturity of such Borrowing (which maturity shall be no later than the   fifth Business Day after the requested date of such Borrowing) and (iv) whether such Swing Line   Borrowing will bear interest as a Fed Funds Swing Line Advance or a LIBOR Swing Line Advance.    Each Swing Line Bank shall, before 5:00 P.M. (New York City time) on the date of such Swing Line   Borrowing, make such Swing Line Bank’s ratable portion of such Swing Line Borrowing available (based   on the respective Swing Line Commitments of the Swing Line Banks) to the Agent at the Agent’s   Account, in same day funds.  After the Agent’s receipt of such funds and upon fulfillment of the   applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower at   the Borrower’s account as specified in writing by two Financial Officers of the Borrower.  Upon written   demand by any Swing Line Bank with a Swing Line Advance, with a copy of such demand to the Agent,   each other Lender will purchase from such Swing Line Bank, and such Swing Line Bank shall sell and   assign to each such other Lender, such other Lender’s Ratable Share of such outstanding Swing Line     





 






    19   NYDOCS02/1089790   Advance, by making available for the account of its Applicable Lending Office to the Agent for the   account of such Swing Line Bank, by deposit to the Agent’s Account, in same day funds, an amount   equal to the portion of the outstanding principal amount of such Swing Line Advance to be purchased by   such Lender.  The Borrower hereby agrees to each such sale and assignment.  Each Lender agrees to   purchase its Ratable Share of an outstanding Swing Line Advance on (i) the Business Day on which   demand therefor is made by the Swing Line Bank which made such Advance, provided that notice of such   demand is given not later than 11:00 A.M. (New York City time) on such Business Day or (ii) the first   Business Day next succeeding such demand if notice of such demand is given after such time.  Upon any   such assignment by Swing Line Bank to any other Lender of a portion of a Swing Line Advance, such   Swing Line Bank represents and warrants to such other Lender that such Swing Line Bank is the legal and   beneficial owner of such interest being assigned by it, but makes no other representation or warranty and   assumes no responsibility with respect to such Swing Line Advance, this Agreement, the Notes or the   Borrower.  If and to the extent that any Lender shall not have so made the amount of such Swing Line   Advance available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such   amount together with interest thereon, for each day from the date such Lender is required to have made   such amount available to the Agent until the date such amount is paid to the Agent, at the Federal Funds   Rate.  If such Lender shall pay to the Agent such amount for the account of such Swing Line Bank on any   Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by   such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount   of the Swing Line Advance made by such Swing Line Bank shall be reduced by such amount on such   Business day.   (c) Anything in subsection (a) above to the contrary notwithstanding, (i) the   Borrower may not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such   Borrowing is less than $1,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances   shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not   be outstanding as part of more than six separate Borrowings.   (d) Each Notice of Revolving Credit Borrowing and Notice of Swing Line   Borrowing shall be irrevocable and binding on the Borrower.  In the case of any Revolving Credit   Borrowing that the related Notice of Revolving Credit Borrowing specifies is to be comprised of   Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense   incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice   of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable conditions set forth   in Article III, including, without limitation, any loss (excluding loss of anticipated profits (including the   Applicable Margin)), cost or expense incurred by reason of the liquidation or reemployment of deposits or   other funds as a result of any failure to fulfill on or before the date specified in such Notice of Revolving   Credit Borrowing or Notice of Swing Line Borrowing for such Borrowing the applicable conditions set   forth in Article III.   (e) Unless the Agent shall have received notice from a Lender or a Swing Line Bank   prior to the time of any Revolving Credit Borrowing or Swing Line Borrowing, as the case may be, that   such Lender or Swing Line Bank will not make available to the Agent such Lender’s or Swing Line   Bank’s ratable portion of such Revolving Credit Borrowing or Swing Line Borrowing, as the case may   be, the Agent may assume that such Lender or Swing Line Bank has made such portion available to the   Agent on the date of such Borrowing in accordance with subsection (a) or (b) of this Section 2.02, as   applicable, and the Agent may, in reliance upon such assumption, make available to the Borrower on such   date a corresponding amount.  If and to the extent that such Lender or Swing Line Bank shall not have so   made such ratable portion available to the Agent, such Lender and the Borrower severally agree to repay   to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day   from the date such amount is made available to the Borrower until the date such amount is repaid to the     





 






    20   NYDOCS02/1089790   Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to the Advances   comprising such Borrowing and (ii) in the case of such Lender or Swing Line Bank, the Federal Funds   Rate.  If such Lender or Swing Line Bank shall repay to the Agent such corresponding amount, such   amount so repaid shall constitute such Lender’s or Swing Line Bank’s Advance as part of such   Borrowing for purposes of this Agreement.   (f) The failure of any Lender or Swing Line Bank to make the Revolving Credit   Advance or Swing Line Advance to be made by it as part of any Borrowing shall not relieve any other   Lender or Swing Line Bank of its obligation, if any, hereunder to make its Revolving Credit Advance or   Swing Line Advance on the date of such Revolving Credit Borrowing or Swing Line Borrowing as the   case may be, but no Lender or Swing Line Bank shall be responsible for the failure of any other Lender or   Swing Line Bank to make the Revolving Credit Advance or Swing Line Advance to be made by such   other Lender or Swing Line Bank on the date of any Revolving Credit Borrowing or Swing Line   Borrowing, as the case may be.   SECTION 2.03.  Issuance of and Drawings and Reimbursement Under Letters of Credit.    (a)  Request for Issuance.  Each Letter of Credit shall be issued upon notice, given not later than   1:00 P.M. (New York City time) on the fifth Business Day prior to the date of the proposed issuance of   such Letter of Credit (or on such shorter notice as the applicable Issuing Bank may agree), by the   Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent prompt notice thereof by   facsimile.  Each such notice of issuance of a Letter of Credit (a “Notice of Issuance”) shall be by   telephone, confirmed immediately in writing, or facsimile, specifying therein the requested (A) date of   such issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit,   (C) expiration date of such Letter of Credit (which shall not be later than the earlier of (x) 10 Business   Days prior to the Termination Date and (y) one year after the issuance thereof), (D) name and address of   the beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied   by such customary application and agreement for letter of credit as such Issuing Bank may specify to the   Borrower for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”).  If   the requested form of such Letter of Credit is acceptable to such Issuing Bank in its sole discretion, such   Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III, make such Letter   of Credit available to the Borrower requesting such issuance at its office referred to in Section 8.02 or as   otherwise agreed with the Borrower in connection with such issuance.  In the event and to the extent that   the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this   Agreement shall govern.   If the Borrower so requests with respect to any Letter of Credit, an Issuing Bank may, in   its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions   (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit   must permit the Issuing Bank 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 “Nonextension Notice Date”) in each such twelve-month period to be   agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by an Issuing Bank, the   Borrower shall not be required to make a specific request to such Issuing Bank for any such extension.    Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized   (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an   expiry date not later than 10 Business Days prior to the Termination Date; provided, however, that an   Issuing Bank shall not permit any such extension if  such Issuing Bank has determined that it would not   be permitted to or would have no obligation at such time to issue such Letter of Credit in its revised form   (as extended) under the terms hereof by reason of (A) the provisions of Section 2.01(b) or (B) the failure   of one or more of the applicable conditions specified in Section 3.02 to be then satisfied.     





 






    21   NYDOCS02/1089790   (b) Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter   of Credit increasing the amount thereof) and without any further action on the part of the applicable   Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby   acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Ratable   Share of the aggregate amount available to be drawn under such Letter of Credit.  The Borrower hereby   agrees to each such participation.  In consideration and in furtherance of the foregoing, each Lender   hereby absolutely and unconditionally agrees to pay to the Agent, for the account of such Issuing Bank,   such Lender’s Ratable Share of each drawing made under a Letter of Credit funded by such Issuing Bank   and not reimbursed by the Borrower on the date made, or of any reimbursement payment required to be   refunded to the Borrower for any reason.  Each Lender acknowledges and agrees that its obligation to   acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and   unconditional and shall not be affected by any circumstance whatsoever, including any amendment,   renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction   or termination of the Revolving Credit Commitments, and that each such payment shall be made without   any offset, abatement, withholding or reduction whatsoever.  Each Lender further acknowledges and   agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s   Ratable Share of the Available Amount of such Letter of Credit at each time such Lender’s Revolving   Credit Commitment is amended pursuant to the operation of Section 2.18, an assignment in accordance   with Section 8.07 or otherwise pursuant to this Agreement.   (c) Drawing and Reimbursement.  Except to the extent that the Borrower has   previously provided to the applicable Issuing Bank funds in an amount equal to such draft drawn under a   Letter of Credit, the payment by such Issuing Bank of a draft drawn under any Letter of Credit shall   constitute for all purposes of this Agreement the making by any such Issuing Bank of a Revolving Credit   Advance, which shall be a Base Rate Advance, in the amount of such draft.  Each Issuing Bank shall give   prompt notice (and such Issuing Bank will use its commercially reasonable efforts to deliver such notice   within one Business Day) of each drawing under any Letter of Credit issued by it to the Borrower and the   Agent.  Upon written demand by such Issuing Bank, with a copy of such demand to the Agent, each   Lender shall pay to the Agent such Lender’s Ratable Share of such outstanding Revolving Credit   Advance, by making available for the account of its Applicable Lending Office to the Agent for the   account of such Issuing Bank, by deposit to the Agent’s Account, in same day funds, an amount equal to   the portion of the outstanding principal amount of such Revolving Credit Advance to be funded by such   Lender.  Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing Bank.  Each   Lender agrees to fund its Ratable Share of an outstanding Revolving Credit Advance on (i) the Business   Day on which demand therefor is made by such Issuing Bank, provided that notice of such demand is   given not later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the first Business   Day next succeeding such demand if notice of such demand is given after such time.  If and to the extent   that any Lender shall not have so made the amount of such Revolving Credit Advance available to the   Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest   thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is   paid to the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as   applicable.  If such Lender shall pay to the Agent such amount for the account of any such Issuing Bank   on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Credit   Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding   principal amount of the Revolving Credit Advance made by such Issuing Bank shall be reduced by such   amount on such Business Day.   (d) Letter of Credit Reports.  Each Issuing Bank shall furnish (i) to the Agent on the   first Business Day of each month a written report summarizing issuance and expiration dates of Letters of   Credit issued by it during the preceding month and drawings during such month under all Letters of   Credit and (ii) to the Agent and each Lender on the first Business Day of each calendar quarter a written     





 






    22   NYDOCS02/1089790   report setting forth the average daily aggregate Available Amount during the preceding calendar quarter   of all Letters of Credit issued by it.   (e) Failure to Make Revolving Credit Advances.  The failure of any Lender to make   the Revolving Credit Advance to be made by it on the date specified in Section 2.03(c) shall not relieve   any other Lender of its obligation hereunder to make its Revolving Credit Advance on such date, but no   Lender shall be responsible for the failure of any other Lender to make the Revolving Credit Advance to   be made by such other Lender on such date.   SECTION 2.04.  Fees.  (a)  Facility Fee.  The Borrower agrees to pay to the Agent for the   account of each Lender a facility fee on the aggregate amount of such Lender’s Revolving Credit   Commitment from the Effective Date in the case of each Initial Lender and from the effective date   specified in the Assumption Agreement or in the Assignment and Assumption pursuant to which it   became a Lender in the case of each other Lender until the Termination Date applicable to such Lender at   a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears   quarterly on the last day of each March, June, September and December, commencing June 30, 2016, and   on the final Termination Date, provided that no Defaulting Lender shall be entitled to receive any facility   fee in respect of its unused Commitment for any period during which that Lender is a Defaulting Lender   (and the Borrower shall not be required to pay such fee that otherwise would have been required to have   been paid to that Defaulting Lender).   (b) Letter of Credit Fees.  (i)  The Borrower shall pay to the Agent for the account of   each Lender a commission on such Lender’s Ratable Share of the average daily aggregate Available   Amount of all Letters of Credit outstanding from time to time at a rate per annum equal to the Applicable   Margin for Eurodollar Rate Advances in effect from time to time, payable in arrears quarterly on the last   day of each March, June, September and December, commencing June 30, 2016, and on the final   Termination Date, and after the final Termination Date payable upon demand; provided that the   Applicable Margin shall increase by 2% upon the occurrence and during the continuation of an Event of   Default if the Borrower is required to pay default interest pursuant to Section 2.07(b); provided, further,   that at any time there is a Defaulting Lender, (i) no Defaulting Lender shall be entitled to receive any such   fees or commissions, (ii) to the extent that all or a portion of the L/C Exposure of any Defaulting Lender   is reallocated to the Non-Defaulting Lenders pursuant to Section 2.20(a), such fees that would have   accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to   such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (iii) to the   extent that all or any portion of the L/C Exposure cannot be so reallocated, such fees will instead accrue   for the benefit of and be payable to the Issuing Banks pro rata in accordance with their Ratable Share of   the average daily aggregate Available Amount of all Letters of Credit outstanding.   (ii) The Borrower shall pay to each Issuing Bank for its own account such reasonable   and customary fronting, issuance, presentation, amendment and other processing fees as may   from time to time be agreed in writing between the Borrower and such Issuing Bank.   (c) Agent’s Fees.  The Borrower shall pay to the Agent for its own account such fees   as have been agreed between the Borrower and the Agent.   SECTION 2.05.  Optional Termination or Reduction of the Commitments.  The Borrower   shall have the right, upon at least three Business Days’ notice to the Agent (which shall promptly notify   each of the Lenders), to terminate in whole or permanently reduce ratably in part the Unused Revolving   Credit Commitments, provided that each partial reduction (i) shall be in the aggregate amount of   $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) shall be made ratably among   the Lenders in accordance with their Revolving Credit Commitments.     





 






    23   NYDOCS02/1089790   SECTION 2.06.  Repayment.  (a)  Revolving Credit Advances.  The Borrower shall repay   to the Agent for the ratable account of each Lender on the Termination Date applicable to such Lender the   aggregate principal amount of the Revolving Credit Advances made by such Lender and then outstanding.   (b) Letter of Credit Reimbursements.  The obligations of the Borrower under this   Agreement, any Letter of Credit Agreement and any other agreement or instrument, in each case, relating   to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with   the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument   under all circumstances, including, without limitation, the following circumstances (it being understood   that any such payment by the Borrower is without prejudice to, and does not constitute a waiver of, any   rights the Borrower might have or might acquire as a result of the payment by any Lender of any draft or   the reimbursement by the Borrower thereof):   (i) any lack of validity or enforceability of this Agreement, any Letter of Credit, any   Letter of Credit Agreement or any other agreement or instrument, in each case, relating thereto   (all of the foregoing being, collectively, the “L/C Related Documents”);   (ii) any change in the time, manner or place of payment of, or in any other term of,   all or any of the obligations of the Borrower in respect of any L/C Related Document or any other   amendment or waiver of or any consent to departure from all or any of the L/C Related   Documents;   (iii) the existence of any claim, set-off, defense or other right that the Borrower may   have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for   which any such beneficiary or any such transferee may be acting), any Issuing Bank, the Agent,   any Lender or any other Person, whether in connection with the transactions contemplated by the   L/C Related Documents or any unrelated transaction;   (iv) any statement or any other document presented under a Letter of Credit proving   to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being   untrue or inaccurate in any respect;   (v) payment by any Issuing Bank under a Letter of Credit against presentation of a   draft or certificate that does not strictly comply with the terms of such Letter of Credit;   (vi) any exchange, release or non-perfection of any collateral, or any release or   amendment or waiver of or consent to departure from any guarantee, for all or any of the   obligations of the Borrower in respect of the L/C Related Documents; or   (vii) any other circumstance or happening whatsoever, whether or not similar to any   of the foregoing, including, without limitation, any other circumstance that might otherwise   constitute a defense available to, or a discharge of, the Borrower or a guarantor.   (c) Swing Line Advances.  The Borrower shall repay to the Agent for the ratable   account of the Swing Line Banks and each other Lender which has made a Swing Line Advance the   outstanding principal amount of each Swing Line Advance made to it by each of them on the earlier of   the maturity date specified in the applicable Notice of Swing Line Borrowing (which maturity shall be no   later than five Business Days after the requested date of such Borrowing) and the final Termination Date.     





 






    24   NYDOCS02/1089790   SECTION 2.07.  Interest on Advances.  (a)  Scheduled Interest.  The Borrower shall pay   interest on the unpaid principal amount of each Advance owing to each Lender from the date of such   Advance until such principal amount shall be paid in full, at the following rates per annum:   (i) Base Rate Advances.  During such periods as such Revolving Credit Advance is   a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect   from time to time plus (y) the Applicable Margin in effect from time to time, payable in arrears   quarterly on the last day of each March, June, September and December during such periods and   on the date such Base Rate Advance shall be Converted or paid in full.   (ii) Eurodollar Rate Advances.  During such periods as such Revolving Credit   Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest   Period for such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such   Advance plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last   day of such Interest Period and, if such Interest Period has a duration of more than three months,   on each day that occurs during such Interest Period every three months from the first day of such   Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.   (iii) Swing Line Advances.  (A) In the case of a Fed Funds Swing Line Advance, a   rate per annum equal at all times to the sum of (w) the Federal Funds Rate in effect from time to   time plus (x) 0.50 % per annum plus (y) the Applicable Margin for Eurodollar Rate Advances in   effect from time to time, and (B) in the case of a LIBOR Swing Line Advance, a rate per annum   equal at all times to the sum of (x) the LIBO Rate for such Swing Line Advance plus (y) the   Applicable Margin for Eurodollar Rate Advances in effect from time to time, in each case   payable in arrears the date such Swing Line Advance shall be paid in full.   (b) Default Interest.  Upon the occurrence and during the continuance of an Event of   Default under Section 6.01(a), the Agent may, and upon the request of the Required Lenders shall, require   the Borrower to pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance   owing to each Lender that is not paid when due, payable in arrears on the dates referred to in clause (a)   above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be   paid on such Advance pursuant to clause (a) above and (ii) to the fullest extent permitted by law, the   amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date   such amount shall be due until such amount shall be paid in full, payable in arrears on the date such   amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above   the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above, provided,   however, that following acceleration of the Advances pursuant to Section 6.01, Default Interest shall   accrue and be payable hereunder whether or not previously required by the Agent.   SECTION 2.08.  Interest Rate Determination.  (a)  Each Reference Bank agrees to   furnish to the Agent timely information for the purpose of determining each Eurodollar Rate.  If any one   or more of the Reference Banks shall not furnish such timely information to the Agent for the purpose of   determining any such interest rate, the Agent shall determine such interest rate on the basis of timely   information furnished by the remaining Reference Banks.  The Agent shall give prompt notice to the   Borrower and the Lenders of the applicable interest rate determined by the Agent for purposes of   Section 2.07(a)(i) or (ii).   (b) If, with respect to any Eurodollar Rate Advances under any Facility, the Lenders   owed at least 51% of the aggregate principal amount thereof notify the Agent that the Eurodollar Rate for   any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of   making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the     





 






    25   NYDOCS02/1089790   Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate   Advance under such Facility will automatically, on the last day of the then existing Interest Period   therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert   Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower   that such Lenders have determined that the circumstances causing such suspension no longer exist.   (c) If the Borrower shall fail to select the duration of any Interest Period for any   Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest   Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such   Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into a   Eurodollar Rate Borrowing having an Interest Period of one month.   (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate   Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less   than $1,000,000, such Advances shall automatically Convert into Base Rate Advances.   (e) Upon the occurrence and during the continuance of any Event of Default, (i) each   Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor,   Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances   into, Eurodollar Rate Advances shall be suspended.   (f) If the Screen Rate and the Interpolated Rate are unavailable and fewer than two   Reference Banks furnish timely information to the Agent for determining the Eurodollar Rate for any   Eurodollar Rate Advances,   (i) the Agent shall forthwith notify the Borrower and the Lenders that the interest   rate cannot be determined for such Eurodollar Rate Advances,   (ii) each such Advance will automatically, on the last day of the then existing Interest   Period therefor, Convert into a Base Rate Advance (or if such Advance is then a Base Rate   Advance, will continue as a Base Rate Advance), and   (iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert   Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the   Borrower and the Lenders that the circumstances causing such suspension no longer exist.   SECTION 2.09.  Optional Conversion of Advances.  The Borrower may on any Business   Day, upon notice not later than 1:00 P.M. (New York City time) on the third Business Day prior to the   date of the proposed Conversion to the Agent (which shall promptly notify each of the Lenders) and   subject to the provisions of Sections 2.08 and 2.12, Convert all or any portion of Revolving Credit   Advances of one Type comprising the same Borrowing into Revolving Credit Advances of the other   Type; provided, however, that any Conversion of Base Rate Advances into Eurodollar Rate Advances   shall be in an amount not less than the minimum amount specified in Section 2.02(c), no Conversion of   any Advances shall result in more separate Borrowings than permitted under Section 2.02(c) and each   Conversion of Advances comprising part of the same Borrowing shall be made ratably among the   Lenders in accordance with their Revolving Credit Commitments and provided, further that for any   Conversion of Eurodollar Rate Advances into Base Rate Advances made other than on the last day of an   Interest Period for such Eurodollar Rate Advances the Borrower shall be obligated to reimburse the   Lenders in respect thereof pursuant to Section 8.04(c).  Each such notice of a Conversion shall, within the   restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted,     





 






    26   NYDOCS02/1089790   and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for   each such Advance.  Each notice of Conversion shall be irrevocable and binding on the Borrower.   SECTION 2.10.  Prepayments of Advances.  The Borrower may, upon notice at least two   Business Days prior to the date of such prepayment, in the case of Eurodollar Rate Advances, and not   later than 1:00 P.M. (New York City time) on the date of such prepayment, in the case of Base Rate   Advances, to the Agent (which shall promptly notify each of the Lenders) stating the proposed date and   aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the   outstanding principal amount of the Advances comprising part of the same Borrowing in whole or ratably   in part, together with accrued interest to the date of such prepayment on the principal amount prepaid;   provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of   $1,000,000 or an integral multiple of $1,000,000 in excess thereof, (y) each partial prepayment of Swing   Line Advances shall in an aggregate principal amount of not less than $1,000,000 and (z) in the event of   any such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the   Lenders in respect thereof pursuant to Section 8.04(c).   SECTION 2.11.  Increased Costs.  (a)  If, due to either (i) the introduction of or any   change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or   request from any central bank or other Governmental Authority (whether or not having the force of law),   there shall be any increase in the cost to any Lender of agreeing to make or making, funding or   maintaining Eurodollar Rate Advances or agreeing to issue or of issuing or maintaining or participating in   Letters of Credit (excluding for purposes of this Section 2.11 any  such increased costs resulting from (i)   Taxes or Other Taxes (as to which Section 2.14 shall govern), (ii) changes in the basis of taxation of   overall net income or overall gross income by the United States or by the foreign jurisdiction or state   under the laws of which such Lender is organized or has its Applicable Lending Office or any political   subdivision thereof and (iii) any such costs reflected in the Eurodollar Rate Reserve Percentage), then the   Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the   Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such   Lender for such increased cost.  A certificate as to the amount of such increased cost, submitted to the   Borrower and the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest   error.   (b) Except to the extent reflected in the Eurodollar Rate Reserve Percentage, if any   Lender determines that compliance with any law or regulation or any guideline or request from any   central bank or other Governmental Authority (whether or not having the force of law) affects or would   affect the amount of capital or liquidity required or expected to be maintained by such Lender or any   corporation controlling such Lender and that the amount of such capital or liquidity is increased by or   based upon the existence of such Lender’s commitment to lend or to issue or participate in Letters of   Credit hereunder and other commitments of this type or the issuance or maintenance of or participation in   the Letters of Credit (or similar contingent obligations), then, upon demand by such Lender (with a copy   of such demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender, from   time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or   such corporation in the light of such circumstances, to the extent that such Lender reasonably determines   such increase in capital or liquidity  to be allocable to the existence of such Lender’s commitment to lend   or to issue or participate in Letters of Credit hereunder or the issuance or maintenance of or participation   in the Letters of Credit.  For the avoidance of doubt, this Section 2.11(b) shall apply to all requests, rules,   guidelines or directives concerning capital adequacy or liquidity  (x) issued in connection with the Dodd-   Frank Wall Street Reform and Consumer Protection Act or (y) 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, regardless of the date     





 






    27   NYDOCS02/1089790   enacted, adopted or issued.  A certificate as to such amounts submitted to the Borrower and the Agent by   such Lender shall be conclusive and binding for all purposes, absent manifest error.   (c) Failure or delay on the part of any Lender to demand compensation pursuant to   this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided   that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased   costs or reductions incurred more than six months prior to the date that such Lender notifies the Borrower   of the change or circumstance giving rise to such increased costs or reductions and of such Lender’s   intention to claim compensation therefor; provided further that, if the change or circumstance giving rise   to such increased costs or reductions is retroactive, then the six-month period referred to above shall be   extended to include the period of retroactive effect thereof.   SECTION 2.12.  Illegality.  Notwithstanding any other provision of this Agreement, if   any Lender shall notify the Agent that the introduction of or any change in or in the interpretation of any   law or regulation makes it unlawful, or any central bank or other Governmental Authority asserts that it is   unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make   Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (a) each   Eurodollar Rate Advance under the Facility under which such Lender has a Commitment will   automatically, upon the last day of the applicable Interest Period or, if required by applicable law,   immediately upon such demand, Convert into a Base Rate Advance and (b) the obligation of the Lenders   to make Eurodollar Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be   suspended until the Agent shall notify the Borrower that such Lender has determined that the   circumstances causing such suspension no longer exist.   SECTION 2.13.  Payments and Computations.  (a)  The Borrower shall make each   payment hereunder, irrespective of any right of counterclaim or set-off, not later than 1:00 P.M. (New   York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day   funds.  The Agent will promptly thereafter cause to be distributed like funds relating to the payment of   principal, interest, fees or commissions ratably (other than amounts payable pursuant to   Section 2.04(b)(ii), 2.11, 2.14 or 8.04) to the Lenders for the account of their respective Applicable   Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to   such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance   with the terms of this Agreement.  Upon any Assuming Lender becoming a Lender hereunder as a result   of a Commitment Increase pursuant to Section 2.18 or an extension of the Termination Date pursuant to   Section 2.19, and upon the Agent’s receipt of such Lender’s Assumption Agreement and recording of the   information contained therein in the Register, from and after the applicable Increase Date or Extension   Date, as the case may be, the Agent shall make all payments hereunder and under any Notes issued in   connection therewith in respect of the interest assumed thereby to the Assuming Lender.  Upon its   acceptance of an Assignment and Assumption and recording of the information contained therein in the   Register pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and   Assumption, the Agent shall make all payments hereunder and under the Notes in respect of the interest   assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption   shall make all appropriate adjustments in such payments for periods prior to such effective date directly   between themselves.   (b) All computations of interest based on clause (i) of the definition of “Base Rate”   shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all   computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of   Credit commissions shall be made by the Agent on the basis of a year of 360 days, in each case for the   actual number of days (including the first day but excluding the last day) occurring in the period for     





 






    28   NYDOCS02/1089790   which such interest, fees or commissions are payable.  Each determination by the Agent of an interest rate   hereunder shall be conclusive and binding for all purposes, absent manifest error.   (c) Whenever any payment hereunder or under the Notes shall be stated to be due on   a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and   such extension of time shall in such case be included in the computation of payment of interest, fee or   commission, as the case may be; provided, however, that, if such extension would cause payment of   interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month,   such payment shall be made on the next preceding Business Day.   (d) Unless the Agent shall have received notice from the Borrower prior to the date   on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in   full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date   and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due   date an amount equal to the amount then due such Lender.  If and to the extent the Borrower shall not   have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on   demand such amount distributed to such Lender together with interest thereon, for each day from the date   such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at   the Federal Funds Rate.   (e) If the Agent receives funds for application to the obligations hereunder under   circumstances for which neither this Agreement nor the Borrower specify the Advances or the Facility to   which, or the manner in which, such funds are to be applied, the Agent may, but shall not be obligated to,   elect to distribute such funds to each Lender ratably in accordance with such Lender’s proportionate share   of the principal amount of all outstanding Advances and the Available Amount of all Letters of Credit   then outstanding, in repayment or prepayment of such of the outstanding Advances or other obligations   owed to such Lender, and for application to such principal installments, as the Agent shall direct.   SECTION 2.14.  Taxes.  (a) Any and all payments by or on account of any obligation of   the Borrower hereunder shall be made free and clear of and without deduction for any Taxes, except as   required by applicable law; provided that if the Borrower shall be required by applicable law to deduct   any Taxes from such payments, then (i) if such Taxes are Indemnified Taxes or Other Taxes, the sum   payable shall be increased as necessary so that after making all required deductions (including deductions   applicable to additional sums payable under this Section) the Agent, Lender or Issuing Bank (as the case   may be) receives an amount equal to the sum it would have received had no deductions of such   Indemnified Taxes or Other Taxes been made, (ii) the Borrower shall make such deductions and (iii) the   Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with   applicable law.   (b) In addition, the Borrower shall pay any Other Taxes to the relevant   Governmental Authority in accordance with applicable law.   (c) The Borrower shall indemnify the Agent, each Lender and each Issuing Bank,   within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other   Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts   payable under this Section) paid by the Agent, such Lender or the Issuing Bank, as the case may be, and   any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not   such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant   Governmental Authority.  A certificate as to the amount of such payment or liability setting forth in   reasonable detail the basis and calculation of such amount delivered to the Borrower by a Lender or an     





 






    29   NYDOCS02/1089790   Issuing Bank, or by the Agent on its own behalf or on behalf of a Lender or an Issuing Bank, shall be   conclusive absent manifest error.   (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes   by the Borrower to a Governmental Authority, the Borrower shall deliver to the Agent the original or a   certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of   the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.   (e) Any Foreign Lender that is entitled to an exemption from or reduction of   withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which   such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower   (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by   the Borrower, such properly completed and executed documentation prescribed by applicable law as will   permit such payments to be made without withholding or at a reduced rate.  Each Foreign Lender will, on   or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and   on the date of the Assumption Agreement or the Assignment and Assumption pursuant to which it   becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably   requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do so),   shall provide each of the Agent and the Borrower with two original Internal Revenue Service Forms W-   8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue   Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States   withholding tax on payments pursuant to this Agreement or any Notes.   (f) If a payment made to a Lender under this Agreement would be subject to United   States federal withholding tax imposed by FATCA if such Lender were to fail to comply with the   applicable reporting requirements of FATCA, such Lender shall deliver to the Borrower and the Agent, at   the time or times prescribed by law and at such time or times reasonably requested by either the Borrower   or the 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 either the   Borrower or the Agent, as applicable, as may be necessary for either the Borrower or the Agent, as   applicable, to comply with its obligations under FATCA, 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.   SECTION 2.15.  Sharing of Payments, Etc.  If any Lender shall obtain any payment   (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of   the Advances owing to it (other than (w) in respect of Defaulting Lenders, (x) as payment of an Advance   made by an Issuing Bank pursuant to the first sentence of Section 2.03(c), (y) as a payment of a Swing   Line Advance made by a Swing Line Bank that has not been participated to the other Lenders pursuant to   Section 2.02(b) or (z) pursuant to Section 2.11, 2.14 or 8.04) in excess of its ratable share of payments on   account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other   Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing   Lender to share the excess payment ratably with each of them; provided, however, that if all or any   portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from   each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price   to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to   the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered   from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in   respect of the total amount so recovered provided further that, so long as the obligations under this   Agreement and any Notes shall not have been accelerated, any excess payment received by any Lender   shall be shared on a pro rata basis only with other Lenders.  The Borrower agrees that any Lender so     





 






    30   NYDOCS02/1089790   purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent   permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such   participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such   participation.   SECTION 2.16.  Evidence of Debt.  (a)  Each Lender shall maintain in accordance with   its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender   resulting from each Advance owing to such Lender from time to time, including the amounts of principal   and interest payable and paid to such Lender from time to time hereunder in respect of Advances.  The   Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the   Agent) to the effect that a Note is required or appropriate in order for such Lender to evidence (whether   for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender,   the Borrower shall promptly execute and deliver to such Lender a Note in substantially the form of   Exhibit A hereto, payable to the order of such Lender in a principal amount equal to the Revolving Credit   Commitment of such Lender.   (b) The Register maintained by the Agent pursuant to Section 8.07(c) shall include a   control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be   recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising   such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each   Assumption Agreement and each Assignment and Assumption delivered to and accepted by it, (iii) the   amount of any principal or interest due and payable or to become due and payable from the Borrower to   each Lender hereunder and (iv) the amount of any sum received by the Agent from the Borrower   hereunder and each Lender’s share thereof.   (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b)   above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima   facie evidence of the amount of principal and interest due and payable or to become due and payable from   the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts,   such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the   Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such   account or accounts shall not limit or otherwise affect the obligations of the Borrower under this   Agreement.   SECTION 2.17.  Use of Proceeds.  The proceeds of the Advances shall be available (and   the Borrower agrees that it shall use such proceeds) for general corporate purposes of the Borrower and   its Subsidiaries.   SECTION 2.18.  Increase in the Aggregate Revolving Credit Commitments.  (a) The   Borrower may, not more than once in any calendar year prior to the final Termination Date, by notice to   the Agent, request that the aggregate amount of the Revolving Credit Commitments be increased by an   amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof (each a “Commitment   Increase”) to be effective as of a date that is at least 90 days prior to the scheduled final Termination Date   then in effect (the “Increase Date”) as specified in the related notice to the Agent; provided, however that   (i) in no event shall the aggregate amount of the Revolving Credit Commitments at any time exceed   $700,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the   related Increase Date, the applicable conditions set forth in Article III shall be satisfied.   (b) The Agent shall promptly notify the Lenders and such other Eligible Assignees   approved by the Agent, each Issuing Bank and each Swing Line Bank as the Borrower may identify of a   request by the Borrower for a Commitment Increase, which notice shall include (i) the proposed amount     





 






    31   NYDOCS02/1089790   of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which   Lenders and such Eligible Assignees wishing to participate in the Commitment Increase must commit to   an increase in the amount of their respective Commitments (the “Commitment Date”).  Each Lender that   is willing to participate in such requested Commitment Increase (each an “Increasing Lender”) and each   Eligible Assignee that is willing to participate in such requested Commitment Increase (each such Eligible   Assignee and each Eligible Assignee that agrees to an extension of the Termination Date in accordance   with Section 2.19(c), an “Assuming Lender”) shall, in its sole discretion, give written notice to the Agent   on or prior to the Commitment Date of the amount by which it is willing to participate in such   Commitment Increase; provided, however, that the Revolving Credit Commitment of each such   Assuming Lender shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess   thereof.  If the Lenders and Assuming Lenders notify the Agent that they are willing to increase the   amount of their respective Revolving Credit Commitments by an aggregate amount that exceeds the   amount of the requested Commitment Increase, the requested Commitment Increase shall be allocated   among the Lenders and Assuming Lenders willing to participate therein in such amounts as are agreed   between the Borrower and the Agent.   (c) Promptly following each Commitment Date, the Agent shall notify the Borrower   as to the amount, if any, by which the Increasing Lenders and Assuming Lenders are willing to participate   in the requested Commitment Increase.  On each Increase Date, each Assuming Lender shall become a   Lender party to this Agreement as of such Increase Date and the Revolving Credit Commitment of each   Increasing Lender for such requested Commitment Increase shall be so increased by such amount (or by   the amount allocated to such Lender pursuant to the last sentence of Section 2.18(b)) as of such Increase   Date; provided, however, that the Agent shall have received on or before such Increase Date the   following, each dated such date:   (i) (A) certified copies of resolutions of the Board of Directors of the Borrower or   the Executive Committee of such Board approving the Commitment Increase and the   corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrower   (which may be in-house counsel), confirming the opinion delivered pursuant to Section   3.01(e)(iv);   (ii) an assumption agreement from each Assuming Lender, if any, in form and   substance satisfactory to the Borrower and the Agent (each an “Assumption Agreement”), duly   executed by such Assuming Lender, the Agent and the Borrower; and   (iii) confirmation from each Increasing Lender of the increase in the amount of its   Revolving Credit Commitment in a writing satisfactory to the Borrower and the Agent.   On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence   of this Section 2.18(c), the Agent shall notify the Lenders (including, without limitation, each Assuming   Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by facsimile, of the occurrence   of the Commitment Increase to be effected on such Increase Date and shall record in the Register the   relevant information with respect to each Increasing Lender and each Assuming Lender on such date.    Each Increasing Lender and each Assuming Lender shall, as of the Increase Date, fund their respective   Ratable Shares of each Revolving Credit Borrowing then outstanding, which funds the Agent shall   distribute to the other Lenders to effect a funding of each such Borrowing by each of the Lenders   (including the Increasing Lenders and the Assuming Lenders) ratably in accordance with their Ratable   Shares after giving effect to the applicable Commitment Increase and, if the applicable Increase Date is   not the last day of an Interest Period, the Borrower shall be obligated to reimburse the Lenders in respect   thereof pursuant to Section 8.04(c) as if such distribution were a prepayment.     





 






    32   NYDOCS02/1089790   SECTION 2.19.  Extension of Termination Date.  (a) The Borrower may request an   extension of the Termination Date in effect at such time by one year from its then scheduled expiration by   giving notice of such request (an “Extension Request”) to the Agent.  No more than two Extension   Requests shall be delivered by the Borrower.  Each such Extension Request shall indicate the date by   which responses are requested (which shall not be less than ten Business Days after the date of such   Extension Request).  The Agent shall promptly notify each Lender of such request, and each Lender shall   in turn, in its sole discretion, not later than the date indicated in such Extension Request, notify the   Borrower and the Agent in writing as to whether such Lender will consent to such Extension Request.  If   any Lender shall fail to timely notify the Agent and the Borrower in writing of its consent to any such   Extension Request, such Lender shall be deemed to be a Non-Consenting Lender with respect to such   request.   (b) If all the Lenders consent in writing to any such request in accordance with   subsection (a) of this Section 2.19, the Termination Date in effect at such time shall, effective as at the   date indicated in the applicable Extension Request (the “Extension Date”), be extended for one year;   provided that on each Extension Date the applicable conditions set forth in Article III shall be satisfied.  If   less than all of the Lenders consent in writing to any such request in accordance with subsection (a) of   this Section 2.19, the Termination Date in effect at such time shall, effective as at the applicable   Extension Date and subject to subsection (d) of this Section 2.19, be extended as to those Lenders that so   consented (each a “Consenting Lender”) but shall not be extended as to any other Lender (each a “Non-   Consenting Lender”).  To the extent that the Termination Date is not extended as to any Lender pursuant   to this Section 2.19 and the Commitment(s) of such Lender is not assumed in accordance with subsection   (c) of this Section 2.19 on or prior to the applicable Extension Date, the Commitment(s) of such Non-   Consenting Lender shall automatically terminate in whole on such unextended Termination Date without   any further notice or other action by the Borrower, such Lender or any other Person; provided that such   Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.04, and its obligations under Section   7.05, shall survive the Termination Date for such Lender as to matters occurring prior to such date.  It is   understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made   by the Borrower for any requested extension of the Termination Date.   (c) If less than all of the Lenders consent to any such request pursuant to subsection   (a) of this Section 2.19, the Borrower may arrange for one or more Consenting Lenders or other Eligible   Assignees approved by the Agent, each Issuing Bank and each Swing Line Bank as Assuming Lenders to   assume, effective as of the Extension Date, any Non-Consenting Lender’s Commitment(s) and all of the   obligations of such Non-Consenting Lender under this Agreement thereafter arising, without recourse to   or warranty by, or expense to, such Non-Consenting Lender; provided, however, that the amount of the   Revolving Credit Commitment of any such Assuming Lender as a result of such substitution shall in no   event be less than $5,000,000 unless the amount of the Commitment of such Non-Consenting Lender is   less than $5,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and   provided further that:   (i) any such Consenting Lender or Assuming Lender shall have paid to such Non-   Consenting Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to   the effective date of the assignment on, the outstanding Advances, if any, of such Non-   Consenting Lender plus (B) any accrued but unpaid facility fees owing to such Non-Consenting   Lender as of the effective date of such assignment;   (ii) all additional costs reimbursements, expense reimbursements and indemnities   payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to such   Non-Consenting Lender hereunder, as of the effective date of such assignment shall have been   paid to such Non-Consenting Lender; and     





 






    33   NYDOCS02/1089790   (iii) with respect to any such Assuming Lender, the applicable processing and   recordation fee required under Section 8.07(b) for such assignment shall have been paid;   provided further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.04, and its   obligations under Section 7.05, shall survive such substitution as to matters occurring prior to the date of   substitution.  At least three Business Days prior to any Extension Date, (A) each such Assuming Lender,   if any, shall have delivered to the Borrower and the Agent an Assumption Agreement, duly executed by   such Assuming Lender, such Non-Consenting Lender, the Borrower and the Agent, (B) any such   Consenting Lender shall have delivered confirmation in writing satisfactory to the Borrower and the   Agent as to the increase in the amount of its Commitment and (C) each Non-Consenting Lender being   replaced pursuant to this Section 2.19 shall have delivered to the Agent any Note or Notes held by such   Non-Consenting Lender.  Upon the payment or prepayment of all amounts referred to in clauses (i), (ii)   and (iii) of the immediately preceding sentence, each such Consenting Lender or Assuming Lender, as of   the Extension Date, will be substituted for such Non-Consenting Lender under this Agreement and shall   be a Lender for all purposes of this Agreement, without any further acknowledgment by or the consent of   the other Lenders, and the obligations of each such Non-Consenting Lender hereunder shall, by the   provisions hereof, be released and discharged.   (d) If (after giving effect to any assignments or assumptions pursuant to subsection   (c) of this Section 2.19) Lenders having Revolving Credit Commitments equal to at least 50% of the   Revolving Credit Commitments in effect immediately prior to the Extension Date consent in writing to a   requested extension (whether by execution or delivery of an Assumption Agreement or otherwise) not   later than one Business Day prior to such Extension Date, the Agent shall so notify the Borrower, and,   subject to the satisfaction of the applicable conditions in Article III, the Termination Date then in effect   shall be extended for the additional one-year period as described in subsection (a) of this Section 2.19,   and all references in this Agreement, and in the Notes, if any, to the “Termination Date” shall, with   respect to each Consenting Lender and each Assuming Lender for such Extension Date, refer to the   Termination Date as so extended.  Promptly following each Extension Date, the Agent shall notify the   Lenders (including, without limitation, each Assuming Lender) of the extension of the scheduled   Termination Date in effect immediately prior thereto and shall thereupon record in the Register the   relevant information with respect to each such Consenting Lender and each such Assuming Lender.   SECTION 2.20.  Defaulting Lender.  (a)  If a Lender becomes, and during the period it   remains, a Defaulting Lender, the following provisions shall apply:   (i) such Defaulting Lenders’ Ratable Share of the L/C Exposure and the Swing Line   Advances will, subject to the limitation in the first proviso below, automatically be reallocated   (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting   Lenders pro rata in accordance with their respective Commitments (such reallocation to be   repeated as of any date that a Lender becomes a Defaulting Lender, whether on the date that such   Lender is required to purchase its participation in any Letter of Credit or otherwise);  provided   that (A) the sum of each Non-Defaulting Lender’s aggregate principal amount of Revolving   Credit Advances, allocated share of the L/C Exposure and allocated share of the principal amount   of outstanding Swing Line Advances may not in any event exceed the Commitment of such Non-   Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation   nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release   of any claim the Borrower, the Agent, any Issuing Bank, any Swing Line Bank or any other   Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-   Defaulting Lender;     





 






    34   NYDOCS02/1089790   (ii) to the extent that any portion (the “unreallocated portion”) of the Defaulting   Lender’s share of the L/C Exposure and Swing Line Advances cannot be so reallocated, whether   by reason of the proviso in clause (i) above or otherwise, the Borrower will, not later than three   Business Days after demand by the Agent (at the direction of an Issuing Bank and/or a Swing   Line Bank, as the case may be), (A) Cash Collateralize the obligations of the Borrower to each   Issuing Bank and each Swing Line Bank in respect of such L/C Exposure or Swing Line   Advances, as the case may be, in an amount at least equal to the aggregate amount of the   unreallocated portion of such L/C Exposure or Swing Line Advances, or (B) in the case of such   Swing Line Advances, prepay (subject to clause (iii) below) and/or Cash Collateralize in full the   unreallocated portion thereof, or (C) make other arrangements satisfactory to the Agent, and to   each Issuing Bank and each Swing Line Bank, as the case may be, in their sole discretion to   protect them against the risk of non-payment by such Defaulting Lender; provided that cash   collateral (or the appropriate portion thereof) provided in respect of the unreallocated portion of   the L/C Exposure or Swing Line Advances shall be released promptly following:  (x) the   elimination of the applicable L/C Exposure or Swing Line Advances giving rise thereto   (including by the termination of Defaulting Lender status of the applicable Lender) or (y) the   Borrower notifying the Agent that such cash collateral exceeds the required amount of Cash   Collateralization and the Agent’s confirmation of such excess (it being understood that only such   excess amount shall be so released); provided further that in accordance with Section 2.04, to the   extent that the Borrower has Cash Collateralized the aggregate amount of the unreallocated   portion of such L/C Exposure or Swing Line Advances, such unreallocated portion shall not   accrue any fees, commissions or interest; and   (iii) any amount paid by the Borrower or otherwise received by the Agent for the   account of a Defaulting Lender under this Agreement (whether on account of principal, interest,   fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting   Lender, but will instead be at the direction of the Borrower (A) retained by the Agent to Cash   Collateralize the obligations of the Borrower to each Issuing Bank and each Swing Line Bank in   respect of such Defaulting Lender’s unreallocated portion of the L/C Exposure or Swing Line   Advances or to fund any Advance in respect of which such Defaulting Lender has failed to fund   its portion thereof as required, or (B) retained by the Agent in a segregated non-interest bearing   account until (subject to Section 2.20(d)) the termination of the Commitments and payment in full   of all obligations of the Borrower hereunder and will be applied by the Agent, to the fullest extent   permitted by law, to the making of payments from time to time in the following order of priority:    first to the payment of any amounts owing by such Defaulting Lender to the Agent under this   Agreement, second to the payment of any amounts owing by such Defaulting Lender to an   Issuing Bank or a Swing Line Bank (pro rata as to the respective amounts owing to each of them)   under this Agreement, third to the payment of post-default interest and then current interest due   and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in   accordance with the amounts of such interest then due and payable to them, fourth to the payment   of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in   accordance with the amounts of such fees then due and payable to them, fifth to pay principal   then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the   amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then   due and payable to the Non-Defaulting Lenders, and seventh after the termination of the   Commitments, the expiration, termination or cancellation of all Letters of Credit and payment in   full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to   such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.  Subject to   Section 2.04, 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 2.20 shall be deemed paid to and redirected by such Defaulting     





 






    35   NYDOCS02/1089790   Lender, and each Lender irrevocably consents hereto; provided that any such amount received by   the Agent pursuant to this Section 2.20(a)(iii) shall, subject to Section 2.20(c), be released to the   applicable Defaulting Lender promptly upon such Defaulting Lender no longer being deemed to   be a Defaulting Lender.   (b) No Commitment of any Lender shall be increased or otherwise affected, and,   except as otherwise expressly provided in this Section 2.20, performance by the Borrower of its   obligations shall not be excused or otherwise modified, as a result of the operation of this Section 2.20.    The rights and remedies against a Defaulting Lender under this Section 2.20 are in addition to any other   rights and remedies which the Borrower, the Agent or any Lender may have against such Defaulting   Lender.   (c) If the Borrower and the Agent agree in writing in their reasonable determination   that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the 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 that portion of outstanding Advances and L/C Exposure of   the other Lenders or take such other actions as the Agent may determine to be necessary to cause the   Advances and L/C Exposure to be held on a pro rata basis by the Lenders in accordance with their pro   rata share, 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 such Lender’s having been   a Defaulting Lender.   (d) The Borrower’s obligation to provide cash collateral as and when required   pursuant to this Section 2.20 is a required payment under this Agreement.   SECTION 2.21.  Replacement of Lenders.  If any Lender requests compensation under   Section 2.11, or if the Borrower is required to pay additional amounts to any Lender or any Governmental   Authority for the account of any Lender pursuant to Section 2.14, or if any Lender is a Defaulting Lender,   then the Borrower may, at its sole expense and effort, upon notice to such Lender and the 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 8.07), all of its interests, rights and obligations under this   Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another   Lender, if a Lender accepts such assignment); provided that:   (a) the Borrower shall have paid to the Agent the assignment fee (if any) specified in   Section 8.07;   (b) such Lender shall have received payment of an amount equal to the outstanding   principal of its Advances and participations in L/C Disbursements, accrued interest thereon,   accrued fees and all other amounts payable to it hereunder (including any amounts under Section   8.04(c)) from the assignee (to the extent of such outstanding principal and accrued interest and   fees) or the Borrower (in the case of all other amounts);   (c) in the case of any such assignment resulting from a claim for compensation under   Section 2.11 or payments required to be made pursuant to Section 2.14, such assignment will   result in a reduction in such compensation or payments thereafter; and     





 






    36   NYDOCS02/1089790   (d) such assignment does not conflict with applicable law.   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.   ARTICLE III   CONDITIONS TO EFFECTIVENESS AND LENDING   SECTION 3.01.  Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of   this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the   following conditions precedent have been satisfied:   (a) Nothing shall have come to the attention of the Lenders during the course of their   due diligence investigation to lead them to believe that the Information Memorandum, together with any   update supplied by the Borrower to the Lenders, was or has become misleading, incorrect or incomplete   in any material respect; without limiting the generality of the foregoing, the Lenders shall have been   given such access to the management, records, books of account, contracts and properties of the Borrower   and its Subsidiaries as they shall have requested.   (b) The Borrower shall have notified each Lender and the Agent in writing as to the   proposed Effective Date.   (c) The Borrower shall have paid all reasonable invoiced fees and expenses of the   Agent and the Lenders (including the fees and expenses of counsel to the Agent).   (d) On the Effective Date, the following statements shall be true and the Agent shall   have received for the account of each Lender a certificate signed by a duly authorized officer of the   Borrower, dated the Effective Date, stating that:   (i) The representations and warranties contained in Section 4.01 are correct   on and as of the Effective Date, and   (ii) No event has occurred and is continuing that constitutes a Default.   (e) The Agent shall have received on or before the Effective Date the following,   each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in   sufficient copies for each Lender:   (i) The Notes to the order of the Lenders to the extent requested by any Lender   pursuant to Section 2.16.   (ii) Certified copies of the resolutions of the Board of Directors of the Borrower   approving this Agreement and the Notes, and of all documents evidencing other necessary   corporate action and governmental approvals, if any, with respect to this Agreement and the   Notes.   (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying   the names and true signatures of the officers of the Borrower authorized to sign this Agreement   and the Notes and the other documents to be delivered hereunder.     





 






    37   NYDOCS02/1089790   (iv) A reasonably acceptable opinion of Peter Falconer, associate general counsel of   the Borrower, substantially in the form of Exhibit D-1 hereto, and a reasonably acceptable   opinion of Mayer Brown LLP, special counsel for the Borrower, substantially in the form of   Exhibit D-2 hereto.   (v) A reasonably acceptable opinion of Shearman & Sterling LLP, counsel for the   Agent, in form and substance satisfactory to the Agent.   (f) The Borrower shall have terminated the commitments of the lenders and repaid   or prepaid all of the obligations (other than in respect of the outstanding Existing Letters of Credit) under,   the Five-Year Credit Agreement dated as of April 30, 2013 among the Borrower, the lenders parties   thereto and Citibank, N.A., as administrative agent, and each of the Lenders that is a party to such credit   facility hereby waives, upon execution of this Agreement, any notice required by said Credit Agreement   relating to the termination of commitments thereunder.   SECTION 3.02.  Conditions Precedent to Each Borrowing, Commitment Increase,   Extension Date and Issuance.  The obligation of each Lender and each Swing Line Bank to make an   Advance (other than (x) a Swing Line Advance made by a Lender pursuant to Section 2.02(b) or (y) an   Advance made by any Issuing Bank or any Lender pursuant to Section 2.03(c)) on the occasion of each   Borrowing, each Commitment Increase, each extension of the Commitments and the obligation of each   Issuing Bank to issue a Letter of Credit shall be subject to the conditions precedent that the Effective Date   shall have occurred and on the date of such Borrowing, the applicable Increase Date, the applicable   Extension Date or such issuance the following statements shall be true (and each of the giving of the   applicable Notice of Revolving Credit Borrowing, Notice of Swing Line Borrowing, request for   Commitment Increase, request for Commitment extension or Notice of Issuance and the acceptance by   the Borrower of the proceeds of such Borrowing, shall constitute a representation and warranty by the   Borrower that on the date of such Borrowing, such Increase Date, such Extension Date or such issuance   such statements are true):   (a) the representations and warranties contained in Section 4.01 (except the   representations set forth in subsection (d)(ii) thereof and in subsection (f) thereof) are correct on   and as of such date, before and after giving effect to such Borrowing, such Commitment Increase,   such Commitment extension or such issuance and to the application of the proceeds therefrom, as   though made on and as of such date, except to the extent such representation or warranty related   to a specific earlier date, in which case such representation or warranty shall have been true and   correct as of such earlier date, and   (b) no event has occurred and is continuing, or would result from such Borrowing,   such Commitment Increase, such Commitment extension or such issuance or from the application   of the proceeds therefrom, that constitutes a Default.   In addition to the other conditions precedent herein set forth, if any Lender becomes, and during the   period it remains, a Defaulting Lender, no Issuing Bank will be required to issue any Letter of Credit or to   amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms   thereunder or extend, or permit the extension of, the expiry date thereof, and no Swing Line Bank will be   required to make any Swing Line Advance, unless any Fronting Exposure that would result therefrom is   eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash   Collateralization or a combination thereof satisfactory to such Issuing Bank or Swing Line Bank.   SECTION 3.03.  Determinations Under Section 3.01.  For purposes of determining   compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented     





 






    38   NYDOCS02/1089790   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 the Lenders unless an officer of the Agent   responsible for the transactions contemplated by this Agreement shall have received notice from such   Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective   Date, specifying its objection thereto.  The Agent shall promptly notify the Lenders of the occurrence of   the Effective Date.   ARTICLE IV   REPRESENTATIONS AND WARRANTIES   SECTION 4.01.  Representations and Warranties.  The Borrower represents and warrants   as follows:   (a) Organization; Powers.  Each of the Borrower and its Subsidiaries is duly   organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has   all requisite power and authority to carry on its business as now conducted and, except where the failure   to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse   Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such   qualification is required.   (b) Authorization; Enforceability.  The Transactions are within the Borrower’s   corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder   action.  This Agreement has been duly executed and delivered by the Borrower and constitutes a legal,   valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to   applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights   generally and subject to general principles of equity, regardless of whether considered in a proceeding in   equity or at law; provided that no representation as to the legality, validity, binding obligation or   enforceability is given as to the matters set forth in Section 8.14.   (c) Governmental Approvals; No Conflicts.  The Transactions (i) do not require any   consent or approval of, registration or filing with, or any other action by, any Governmental Authority,   except such as have been obtained or made and are in full force and effect, (ii) will not violate any   applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or   any of its Subsidiaries or any order of any Governmental Authority, (iii) will not violate or result in a   default under any indenture, agreement or other instrument binding upon the Borrower or any of its   Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the   Borrower or any of its Subsidiaries, and (iv) will not result in the creation or imposition of any Lien on   any asset of the Borrower or any of its Subsidiaries.   (d) Financial Condition; No Material Adverse Change.  (i) The Borrower has   heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders   equity and cash flows (A) as of and for the fiscal year ended December 31, 2015, reported on by Ernst &   Young LLP, independent public accountants, and (B) as of and for the fiscal quarter and the portion of the   fiscal year ended March 31, 2016, certified by its chief financial officer.  Such financial statements   present fairly, in all material respects, the financial position and results of operations and cash flows of   the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with   GAAP, consistently applied, subject to year-end audit adjustments and the absence of footnotes in the   case of the statements referred to in clause (B) above.     





 






    39   NYDOCS02/1089790   (ii) Except for disclosures, if any, made in filings by the Borrower prior to the date   hereof pursuant to the Securities and Exchange Act of 1934, as amended, since December 31,   2015, there has been no material adverse change in the business, assets, operations or condition,   financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.   (e) Properties.  (i) Each of the Borrower and its Subsidiaries has good title to, or   valid leasehold interests in, all its real and personal property material to its business, except for minor   defects in title that do not interfere with its ability to conduct its business as currently conducted or to   utilize such properties for their intended purposes.     (ii) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all   trademarks, trade names, copyrights, patents and other intellectual property material to its   business, and the use thereof by the Borrower and its Subsidiaries 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.   (f) Litigation and Environmental Matters.  (i) There are no actions, suits or   proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge   of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (A) which are   likely, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed   Litigation) or (B) that involve this Agreement or the Transactions.   (ii) Except for the Disclosed Litigation and except with respect to any other matters   that, individually or in the aggregate, are not likely to result in a Material Adverse Effect, neither   the Borrower nor any of its Subsidiaries (A) has failed to comply with any Environmental Law or   to obtain, maintain or comply with any permit, license or other approval required under any   Environmental Law, (B) has become subject to any Environmental Liability, (C) has received   notice of any claim with respect to any Environmental Liability or (D) knows of any basis for any   Environmental Liability.   (iii) Since the date of this Agreement, there has been no change in the status of the   Disclosed Litigation that, individually or in the aggregate, has resulted in, or materially increased   the likelihood of, a Material Adverse Effect.   (g) Compliance with Laws and Agreements.  Each of the Borrower and its   Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority   applicable to it or its property and all indentures, agreements and other instruments binding upon it or its   property, except where the failure to do so, individually or in the aggregate, could not reasonably be   expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.   (h) Investment Company Status.  Neither the Borrower nor any of its Subsidiaries is   an “investment company” as defined in, or subject to regulation under, the Investment Company Act of   1940.   (i) Taxes.  Each of the Borrower and its Subsidiaries 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 (i) Taxes that are being contested in good faith by appropriate   proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books   adequate reserves or (ii) to the extent that the failure to do so could not reasonably be expected to result in   a Material Adverse Effect.     





 






    40   NYDOCS02/1089790   (j) ERISA.  No ERISA Event has occurred or is reasonably expected to occur that,   when taken together with all other such ERISA Events for which liability is reasonably expected to occur,   could reasonably be expected to result in a Material Adverse Effect.  The present value of all accumulated   benefit obligations under each Plan (based on the assumptions used for purposes of Statement of   Financial Accounting Standards No. 87) as of the date of the most recent financial statements reflecting   such amounts: (i) did not exceed the fair market value of the assets of such Plan by an aggregate amount   in excess of $25,000,000 or (ii) if such shortfall is in excess of such amount, such shortfall could not   reasonably be expected to result in a Material Adverse Effect.   (k) Disclosure.  None of the reports, financial statements, certificates or other   information furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the   negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information   so furnished) contains any material misstatement of fact or omits to state any material fact necessary to   make the statements therein, in the light of the circumstances under which they were made, not   misleading; provided that, with respect to projected financial information the Borrower represents only   that such information was prepared in good faith based upon assumptions believed to be reasonable at the   time.   (l) Margin Stock.  The Borrower is not engaged in the business of extending credit   for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the   Board of Governors of the Federal Reserve System, as in effect from time to time), and no proceeds of   any Advance or Letter of Credit will be used to purchase or carry any margin stock or to extend credit to   others for the purpose of purchasing or carrying any margin stock.   (m) Anti-Corruption Laws and Sanctions.  The Borrower has implemented and   maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower,   its Subsidiaries and (when acting in their respective capacities as such) their respective directors, officers,   employees and agents with Anti-Corruption Laws and applicable Sanctions and, to the knowledge of the   Borrower, the Borrower and its Subsidiaries are in compliance with Anti-Corruption Laws and applicable   Sanctions in all material respects.  None of the Borrower, any Subsidiary or any of their respective   directors or officers, or, to the knowledge of the Borrower, any of their respective employees or any agent   of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the   credit facility established hereby, is, or is controlled by, a Sanctioned Person.   ARTICLE V      COVENANTS   SECTION 5.01.  Affirmative Covenants.  Until the Commitments and Letters of Credit   have expired or been terminated and the principal of and interest on each Advance and all fees payable   hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders that:   (a) Financial Statements and Other Information.  The Borrower will furnish to the   Agent (which shall promptly furnish to each of the Lenders):   (i) within 105 days after the end of each fiscal year of the Borrower, its audited   consolidated balance sheet and related statements of operations, stockholders’ equity and cash   flows as of the end of and for such year, setting forth in each case in comparative form the figures   for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public   accountants of recognized national standing (without a going “concern” or like qualification or   exception and without any qualification or material exception as to the scope of such audit) to the     





 






    41   NYDOCS02/1089790   effect that such consolidated financial statements present fairly in all material respects the   financial condition and results of operations of the Borrower and its consolidated Subsidiaries on   a consolidated basis in accordance with GAAP consistently applied (the furnishing of the   Borrower’s Form 10-K will satisfy the requirements of this Section 5.01(a)(i));   (ii) within 55 days after the end of each of the first three fiscal quarters of each fiscal   year of the Borrower, its consolidated balance sheet and related statements of operations,   stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then   elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for   the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the   previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all   material respects the financial condition and results of operations of the Borrower and its   consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,   subject to normal year-end audit adjustments and the absence of footnotes (the furnishing of the   Borrower’s Form 10-Q will satisfy the requirements of this Section 5.01(a)(ii));   (iii) concurrently with any delivery of financial statements under clause (i) or (ii)   above, a certificate of a Financial Officer of the Borrower (A) certifying as to whether a Default   has occurred since the delivery of the previous such certificate, or, with respect to the first such   certificate, the date hereof and, if such Default has occurred, specifying the details thereof and   any action taken or proposed to be taken with respect thereto, (B) setting forth reasonably detailed   calculations demonstrating compliance with Sections 5.02(a) and 5.03 and (C) 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 4.01(d) and, if any such change has occurred,   specifying the effect of such change on the financial statements accompanying such certificate;   (iv) concurrently with any delivery of financial statements under clause (i) above, a   certificate of the accounting firm that reported on such financial statements stating whether they   obtained knowledge during the course of their examination of such financial statements of any   Default (which certificate may be limited to the extent required by accounting rules or   guidelines);   (v) promptly after the same become publicly available, copies of all periodic and   other reports, proxy statements and other material information filed by the Borrower or any   Subsidiary, with the Securities and Exchange Commission, or any Governmental Authority   succeeding to any or all of the functions of said Commission, or with any national securities   exchange, as the case may be; and   (vi) promptly following any request therefor, such other information regarding the   operations, business affairs and financial condition of the Borrower or any Subsidiary, or   compliance with the terms of this Agreement, as the Agent or any Lender may reasonably   request.   The Borrower shall be deemed to have delivered the financial statements and other information   referred to in subclauses (i), (ii) and (v) of this Section 5.01(a), when such filings, financials or other   information have been posted on the Internet website of the Securities and Exchange Commission   (http://www.sec.gov) or on the Borrower’s own internet website as previously identified to the Agent and   Lenders.  If the Agent or a Lender requests such filings, financial statements or other information to be   delivered to it in hard copies, the Borrower shall furnish to the Agent or such Lender, as applicable, such   statements accordingly, provided that no such request shall affect that such filings, financial statements or     





 






    42   NYDOCS02/1089790   other information have been deemed to have been delivered in accordance with the terms of the   immediately preceding sentence.   (b) Notices of Material Events.  The Borrower will furnish to the Agent (which shall   promptly furnish to each of the Lenders) prompt written notice of the following:   (i) the occurrence of any Default;   (ii) the filing or commencement of any action, suit or proceeding by or before any   arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof   that is likely to result in a Material Adverse Effect; and   (iii) any other development that results in a Material Adverse Effect.   Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or   other executive officer of the Borrower setting forth the details of the event or development requiring   such notice and any action taken or proposed to be taken with respect thereto.   (c) Existence; Conduct of Business.  The Borrower will, and will cause each of its   Subsidiaries to, 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; provided that (x) the foregoing shall not prohibit any merger, consolidation, liquidation or   dissolution permitted under Section 5.02(b), (y) any Subsidiary of the Borrower may liquidate or dissolve   and (z) the foregoing shall not prohibit any transaction between or among the Borrower and its    Subsidiaries.   (d) Payment of Obligations.  The Borrower will, and will cause each of its   Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material   Adverse Effect before the same shall become delinquent or in default, except where (i) the validity or   amount thereof is being contested in good faith by appropriate proceedings, (ii) the Borrower or such   Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and   (iii) the failure to make payment pending such contest could not reasonably be expected to result in a   Material Adverse Effect.   (e) Maintenance of Properties; Insurance.  The Borrower will, and will cause each of   its Subsidiaries to, (i) keep and maintain all property material to the conduct of its business in good   working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound   and reputable insurance companies, 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, in each case, except to the extent that the failure to maintain any such insurance could not   reasonably be expected to result in a Material Adverse Effect.   (f) Books and Records; Inspection Rights.  The Borrower will, and will cause each   of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are   made of all dealings and transactions in relation to its business and activities.  The Borrower will, and will   cause each of its Subsidiaries to, permit any representatives designated by the Agent or any Lender, upon   reasonable prior notice and (unless an Event of Default has occurred and is continuing, at the expense of   the Agent or such Lender, as the case may be), to visit and inspect its properties, to examine and make   extracts from its books and records, and to discuss its affairs, finances and condition with its officers and   independent accountants, all at such reasonable times and as often as reasonably requested.     





 






    43   NYDOCS02/1089790   (g) Compliance with Laws, Etc.  The Borrower will, and will cause each of its   Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority   applicable to it or its property, except where the failure to do so, individually or in the aggregate, could   not reasonably be expected to result in a Material Adverse Effect.  The Borrower will maintain in effect   policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and   (when acting in their respective capacities as such) their respective directors, officers, employees and   agents with  Anti-Corruption Laws and applicable Sanctions.   (h) Use of Proceeds.  The proceeds of the Advances will be used only for general   corporate purposes of the Borrower and its Subsidiaries in the ordinary course of business.  No part of the   proceeds of any Advance will be used, whether directly or indirectly, for any purpose that entails a   violation of any of the regulations of the Federal Reserve Board, including Regulation U and Regulation   X, as in effect from time to time.   SECTION 5.02.  Negative Covenants.  Until the Commitments and Letters of Credit have   expired or terminated and the principal of and interest on each Advance and all fees payable hereunder   have been paid in full the Borrower covenants and agrees with the Lenders that:   (a) Negative Pledge.  The Borrower will not, nor will it permit any of its Subsidiaries   to, create, incur, assume or suffer to exist any Lien in, of or on any property of the Borrower or any of its   Subsidiaries, whether now owned or hereafter acquired, except:   (i) Liens created for the benefit of the Lenders;   (ii) Liens existing on the date of this Agreement;   (iii) Permitted Encumbrances;   (iv) Liens on property (A) of a Subsidiary to secure only obligations owing to the   Borrower or another such Subsidiary or (B) of any Person which becomes a Subsidiary after the   date of this Agreement, provided that such Liens in this clause (B) are in existence at the time   such Person becomes a Subsidiary and were not created in anticipation thereof;   (v) Liens upon real and/or tangible personal property acquired after the date hereof   (by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries, each of which   Liens either (A) existed on such property before the time of its acquisition and was not created in   anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness   representing, or incurred to finance, refinance or refund, the cost (including the cost of   construction) of such property; provided that no such Lien shall extend to or cover any property   of the Borrower or such Subsidiary other than the property so acquired and improvements   thereon; provided, further, that the principal amount of Indebtedness secured by any such Lien   shall at no time exceed the fair market value (as determined in good faith by a senior financial   officer of the Borrower) of such property at the time such Lien is created; and provided finally,   that such Lien attaches to such asset concurrently with or within 18 months of acquisition thereof;   (vi) Liens on assets related to railcar operating leases (including, but not limited to,   car service contracts and cash collateral accounts funded with revenues under such leases)   securing obligations of the Borrower or any Subsidiary under such lease;   (vii) attachment, judgment and other similar Liens arising in connection with court   proceedings, provided that (A) the execution or other enforcement of such Liens in an aggregate     





 






    44   NYDOCS02/1089790   amount exceeding $50,000,000 is effectively stayed and (B) the claims secured thereby are being   actively contested in good faith and by appropriate proceedings;   (viii) Liens securing Secured Nonrecourse Obligations;   (ix) in addition to the Liens permitted in the foregoing clauses (i) through (viii) of this   Section 5.02(a), Liens incurred in the ordinary course of business of the Borrower and any of its   Subsidiaries, provided that the aggregate amount of Indebtedness secured by Liens pursuant to   this clause (ix) shall not at any time exceed $250,000;   (x) any extension, renewal or replacement, or the combination of, the foregoing,   provided, however, that the Liens permitted hereunder shall not be spread to cover any additional   Indebtedness or property (other than a substitution of like property); and   (xi) additional Liens upon real and/or personal property of the Borrower or any of its   Subsidiaries created after the date hereof so long as Unsecured Debt (as defined below) shall not,   at any time, exceed Eligible Assets (as defined below).    For the purposes of Section 5.02(a)(xi):   “Eligible Assets” means the difference, as at any date of determination, of the following   (each of the following items being the consolidated amounts as reflected in the Borrower’s   balance sheet (and/or notes thereto) delivered in accordance with Section 5.01(a)(i) or (ii) hereof):   (A) the sum of (i) cash plus (ii) available for sale securities plus (iii) direct financing leases plus   (iv) loans plus (v) operating lease assets, facilities and other– net (including progress payments   related thereto) plus (vi) 50% of investment in joint ventures plus (vii) assets held (or contracted   to be acquired) for sale and lease plus (viii) investment in future residuals minus (B) encumbered   assets.   “Unsecured Debt” means the sum, as at any date of determination, of the following (each   of the following items being the consolidated amounts as reflected in the Borrower’s balance   sheet (and/or notes thereto) delivered in accordance with Section 5.01(a)(i) or (ii) hereof):  (i)   commercial paper and bankers acceptances plus (ii) notes payable (including without limitation,   any indebtedness payable in respect of borrowings under existing unsecured credit facilities) plus   (iii) Capital Lease Obligations plus (iv) senior term notes, so long as, in each case, such item is   unsecured.   (b) Fundamental Changes.  (i) The Borrower will not merge into or consolidate with   any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or   otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets   (whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and   immediately after giving effect thereto no Default shall have occurred and be continuing, any Person may   merge into the Borrower in a transaction in which the Borrower is the surviving corporation.   (ii) The Borrower will not, and will not permit any of its Subsidiaries to, engage to   any material extent in any business other than businesses of the type conducted by the Borrower   and its Subsidiaries on the date of this Agreement, and businesses reasonably related thereto,   including, without limitation, the business of leasing, investing in, operating, financing and   selling transportation, industrial and commercial equipment and commercial and other real estate   investment property and companies and activities related thereto.     





 






    45   NYDOCS02/1089790   (c) Transactions with Affiliates.  The Borrower will not, and will not permit any of   its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or   otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of   its Affiliates, except (i) at prices and on terms and conditions not less favorable to the Borrower or such   Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (ii) transactions   between or among the Borrower and its Subsidiaries not involving any other Affiliate and (iii)  any   transaction permitted by Section 5.02(b); provided that the foregoing provisions of this Section 5.02(c)   shall not prohibit any such Person from declaring or paying any lawful dividend so long as, after giving   effect thereto, no Default shall have occurred and be continuing.   (d) Fiscal Year.  The Borrower will not permit its fiscal year to end on other than   December 31 and for each of its fiscal quarters to end on other than the last day of standard calendar   quarters.   (e) Use of Proceeds.  Neither the Borrower nor any of its Subsidiaries shall use the   proceeds of any Borrowing or Letter of Credit in furtherance of an offer, payment, promise to pay, or   authorization of the payment or giving of money, or anything else of value, to any Person in violation of   any Anti-Corruption Laws.  Neither the Borrower nor any of its Subsidiaries shall use the proceeds of any   Borrowing or Letter of Credit for the purpose of financing any activities, business or transaction of or   with any Sanctioned Person or a Person known by the Borrower to be controlled by a Sanctioned Person,   or in any Sanctioned Country, except where such activities, business or transaction could be conducted   legally by a U.S. Person.   SECTION 5.03.  Financial Covenant.  Until the Commitments and Letters of Credit have   expired or terminated and the principal and interest on each Advance and all fees payable hereunder have   been paid in full the Borrower covenants and agrees with the Lenders that the Borrower will not permit its   Fixed Charge Coverage Ratio, as at any fiscal quarter end, to be less than 1.20 to 1.   For the purposes of this Section 5.03,   “Cash Flow” means, for any period, the sum, for the Borrower and its consolidated   Subsidiaries, of the following: (i) net income, (ii) income taxes, (iii)  non-cash provisions for, or   actual write-offs or impairments of, assets (without duplication in respect of any prior period) and   (iv) Fixed Charges.    “Fixed Charge Coverage Ratio” means, for any day, the ratio of (i) Cash Flow for the   period of four consecutive fiscal quarters of the Borrower ending on or most recently ended prior   to such day to (ii) Fixed Charges for such period.   “Fixed Charges” means the sum, for any period for the Borrower and its consolidated   Subsidiaries, of the following:  (i) Interest Expense plus (ii) an estimate of that portion of   minimum rents under operating leases representing the interest factor.   “Interest Expense” means, for any period, the sum, for the Borrower and its consolidated   Subsidiaries, of the following:  (i) all interest in respect of Indebtedness (including the interest   component of any payments in respect of Capital Lease Obligations) accrued or capitalized   during such period (whether or not actually paid during such period) plus (ii) the net amount   payable (or minus the net amount receivable) under Hedging Agreements relating to interest   during such period (whether or not actually paid or received during such period).     





 






    46   NYDOCS02/1089790   ARTICLE VI      EVENTS OF DEFAULT   SECTION 6.01.  Events of Default.  If any of the following events (“Events of Default”)   shall occur and be continuing:   (a) the Borrower shall fail to pay any principal of or interest on any Advance or any   fee or any other amount payable under this Agreement when and as the same shall become due and   payable, and such failure shall continue unremedied for a period of two Business Days;   (b) any representation or warranty made or deemed made by the Borrower (i) in this   Agreement or any amendment or modification hereof or (ii) in any report, certificate, financial statement   or other document furnished pursuant to or in connection with this Agreement or any amendment or   modification thereof, shall prove to have been incorrect in any material respect when made or deemed   made;   (c) the Borrower shall fail to observe or perform any covenant, condition or   agreement contained in Section 5.01(b), (c) (with respect to the Borrower’s existence) or (h) or in   Sections 5.02 or 5.03;   (d) the Borrower shall fail to observe or perform any covenant, condition or   agreement contained in this Agreement (other than those specified in clause (a) or (c) of this Section   6.01), and such failure shall continue unremedied for a period of 30 days after notice thereof from the   Agent (given at the request of any Lender) to the Borrower;   (e) the Borrower or any Subsidiary shall fail to make any payment (whether of   principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the   same shall become due and payable and after any applicable grace and/or notice period;   (f) any event or condition occurs that results in any Material Indebtedness becoming   due prior to its scheduled maturity or that enables or permits (after giving effect to any applicable grace   period and/or notice period) the holder or holders of any Material Indebtedness or any trustee or agent on   its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment,   repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (f)   shall not apply to secured Indebtedness that becomes due as a result of (i) the voluntary sale or transfer of   the property or assets securing such Indebtedness or (ii) the receipt of proceeds of a casualty loss or   condemnation;   (g) an involuntary proceeding shall be commenced or an involuntary petition shall be   filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material   Subsidiary (other than a Single Transaction 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 the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case,   such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or   ordering any of the foregoing shall be entered;   (h) the Borrower or any Material Subsidiary (other than a Single Transaction   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     





 






    47   NYDOCS02/1089790   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 Section 6.01, (iii) apply for   or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official   for the Borrower or any Material Subsidiary or for a substantial part of 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) the Borrower or any Material Subsidiary (other than a Single Transaction   Subsidiary) shall become unable, admit in writing or fail generally to pay its debts (other than Secured   Nonrecourse Obligations) as they become due;   (j) one or more judgments for the payment of money (other than in respect of   Secured Nonrecourse Obligations) in an aggregate amount in excess of $50,000,000 shall be rendered   against the Borrower or any Material Subsidiary (other than a Single Transaction Subsidiary) or any   combination thereof and the same shall remain undischarged for a period of 30 consecutive days during   which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor   to attach or levy upon any assets of the Borrower or any such Material Subsidiary to enforce any such   judgment;   (k) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,   when taken together with all other ERISA Events that have occurred, could reasonably be expected to   result in a Material Adverse Effect; or    (l) a Change in Control shall occur;    then, and in every such event (other than an event with respect to the Borrower described in clause (g) or   (h) of this Section), and at any time thereafter during the continuance of such event, the Agent may, and at   the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following   actions, at the same or different times:  (i) terminate the Commitments (other than the Commitments to   make Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)), and thereupon such   Commitments shall terminate immediately, and (ii) declare the Advances then outstanding to be due and   payable in whole (or in part, in which case any principal not so declared to be due and payable may   thereafter be declared to be due and payable), and thereupon the principal of the Advances so declared to   be due and payable, together with accrued interest thereon and all fees and other obligations of the   Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand,   protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any   event with respect to the Borrower described in clause (g) or (h) of this Article, the Commitments (other   than the Commitments to make Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c))   shall automatically terminate and the principal of the Advances then outstanding, together with accrued   interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically   become due and payable, without presentment, demand, protest or other notice of any kind, all of which   are hereby waived by the Borrower.   SECTION 6.02.  Actions in Respect of the Letters of Credit upon Default.  If any Event   of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the request,   of the Required Lenders, irrespective of whether it is taking any of the actions described in Section 6.01   or otherwise, make demand upon the Borrower to, and forthwith upon such demand the Borrower will, (a)   pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office designated in such   demand, for deposit in the L/C Cash Collateral Account, an amount equal to the aggregate Available   Amount of all Letters of Credit then outstanding or (b) make such other arrangements in respect of the     





 






    48   NYDOCS02/1089790   outstanding Letters of Credit as shall be acceptable to the Lenders having at least 51% of the Revolving   Credit Commitments.  If at any time the Agent determines that any funds held in the L/C Cash Collateral   Account are subject to any right or claim of any Person other than the Agent and the Lenders or that the   total amount of such funds is less than the aggregate Available Amount of all Letters of Credit, the   Borrower will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited   and held in the L/C Cash Collateral Account, an amount equal to the excess of (a) such aggregate   Available Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral Account   that the Agent determines to be free and clear of any such right and claim.  Upon the drawing of any   Letter of Credit, to the extent funds are on deposit in the L/C Cash Collateral Account, such funds shall be   applied to reimburse the Issuing Banks to the extent permitted by applicable law.  After (i) no Event of   Default shall be continuing or (ii) all such Letters of Credit shall have expired or been fully drawn upon   and all other obligations of the Borrower hereunder and under the Notes shall have been paid in full, the   balance, if any, in such LC Cash Collateral Account shall be returned to the Borrower.   ARTICLE VII   THE AGENT   SECTION 7.01.  Appointment and Authority.  Each of the Lenders and the Issuing Banks   hereby irrevocably appoints Citibank to act on its behalf as the Agent hereunder and under the Notes and   authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the   Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental   thereto.  The provisions of this Article are solely for the benefit of the Agent, the Lenders and the Issuing   Banks, and, except as provided in Section 7.07, the Borrower shall not 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 Notes (or any other similar term) with reference to the 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.     SECTION 7.02.  Rights as a Lender.  The Person serving as the 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise   expressly indicated or unless the context otherwise requires, include the Person serving as the 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 business with, the Borrower or any Subsidiary or other Affiliate thereof as if such   Person were not the Agent hereunder and without any duty to account therefor to the Lenders.   SECTION 7.03.  Exculpatory Provisions.  (a) The Agent shall not have any duties or   obligations except those expressly set forth herein, and its duties hereunder shall be administrative in   nature.  Without limiting the generality of the foregoing, the Agent:   (i) shall not be subject to any fiduciary or other implied duties, regardless of whether   a Default has occurred and is continuing;   (ii) shall not have any duty to take any discretionary action or exercise any   discretionary powers, except discretionary rights and powers expressly contemplated hereby that   the 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); provided that the   Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,     





 






    49   NYDOCS02/1089790   may expose the Agent to liability or that is contrary to this Agreement or applicable law,   including for the avoidance of doubt any action that may be in violation of the automatic stay   under any debtor relief law or that may effect a forfeiture, modification or termination of property   of a Defaulting Lender in violation of any debtor relief law; and   (iii) shall not, except as expressly set forth herein, have any duty to disclose, and shall   not be liable for the failure to disclose, any information relating to the Borrower or any of its   Affiliates that is communicated to or obtained by the Person serving as the Agent or any of its   Affiliates in any capacity.   (b) The Agent shall not be liable for any action taken or not taken by it (i) with the   consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as   shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances   as provided in Sections 8.01 and 6.01), or (ii) in the absence of its own gross negligence or willful   misconduct.  The Agent shall be deemed not to have knowledge of any Default unless and until notice   describing such Default is given to the Agent in writing by the Borrower, a Lender or an Issuing Bank.   (c) The Agent shall not be responsible for or have any duty to ascertain or inquire   into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 or any other agreement, instrument or   document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to   confirm receipt of items expressly required to be delivered to the Agent.   SECTION 7.04.  Reliance by Agent.  The Agent shall be entitled to rely upon, and shall   not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument,   document or other writing (including any electronic message, Internet or intranet website posting or other   distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the   proper Person.  The Agent also may rely upon any statement made to it orally or by telephone and   believed by it to have been made by the proper Person, and shall not incur any liability for relying   thereon.  In determining compliance with any condition hereunder to the making of an Advance, or the   issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the   satisfaction of a Lender or an Issuing Bank, the Agent may presume that such condition is satisfactory to   such Lender or Issuing Bank unless the Agent shall have received notice to the contrary from such Lender   or Issuing Bank prior to the making of such Advance or the issuance, extension, renewal or increase of   such Letter of Credit.  The Agent may consult with legal counsel (who may be counsel for the Borrower),   independent accountants and other experts selected by it, and shall not be liable for any action taken or   not taken by it in accordance with the advice of any such counsel, accountants or experts.     SECTION 7.05.  Indemnification.  (a)  The Lenders agree to indemnify the Agent (to the   extent not reimbursed by the Borrower) from and against such Lender’s pro rata share (determined as   provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments,   suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,   incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any   action taken or omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”),   provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the   Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Lender agrees   to reimburse the Agent promptly upon demand for its pro rata share of any out-of-pocket expenses   (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery,     





 






    50   NYDOCS02/1089790   administration, modification, amendment or enforcement (whether through negotiations, legal   proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement,   to the extent that the Agent is not reimbursed for such expenses by the Borrower.  In the case of any   investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05(a) applies   whether any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third   party.  For purposes of this Section 7.05(a), the Lenders’ respective pro rata shares of any amount shall be   determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving   Credit Advances outstanding at such time and owing to the respective Lenders, (ii) their respective pro   rata Shares of the aggregate Available Amount of all Letters of Credit outstanding at such time and   (iii) their respective Unused Revolving Credit Commitments at such time.   (b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not   promptly reimbursed by the Borrower) from and against such Lender’s Ratable Share of any and all   liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or   disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against   any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or   omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender   shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,   judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence or   willful misconduct.  Without limitation of the foregoing, each Lender agrees to reimburse any such   Issuing Bank promptly upon demand for its Ratable Share of any costs and expenses (including, without   limitation, fees and expenses of counsel) payable by the Borrower under Section 8.04, to the extent that   such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower.   (c) The failure of any Lender to reimburse the Agent or the Issuing Bank promptly   upon demand for its ratable share of any amount required to be paid by the Lenders to the Agent or the   Issuing Bank  as provided herein shall not relieve any other Lender of its obligation hereunder to   reimburse the Agent or the Issuing Bank for its ratable share of such amount, but no Lender shall be   responsible for the failure of any other Lender to reimburse the Agent or an Issuing Bank for such other   Lender’s Ratable Share of such amount.  Without prejudice to the survival of any other agreement of any   Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall   survive the payment in full of principal, interest and all other amounts payable hereunder and under the   Notes.   SECTION 7.06.  Delegation of Duties.  The Agent may perform any and all of its duties   and exercise its rights and powers hereunder or under any Notes by or through any one or more   sub-agents appointed by the Agent and consented to in writing by the Borrower (such consent not to be   required if an Event of Default has occurred and is continuing at the time of such appointment).  The   Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by   or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any   such sub-agent and to the Related Parties of the 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 Agent.  The   Agent shall not be responsible for the negligence or misconduct of any sub-agents appointed with the   consent of the Borrower.     SECTION 7.07.  Resignation of Agent.  (a) The Agent may at any time give notice of its   resignation to the Lenders, the Issuing Banks and the Borrower.  Upon receipt of any such notice of   resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not   to be required if an Event of Default has occurred and is continuing at the time of such resignation – in   which event the Required Lenders’ decision shall be in consultation with the Borrower), to appoint a   successor, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank     





 






    51   NYDOCS02/1089790   with an office in New York, New York.  If no such successor shall have been so appointed by the   Required Lenders and shall have accepted such appointment within 30 days after the retiring 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 Agent may (but shall not be obligated to), on behalf of the Lenders and   the Issuing Banks, appoint a successor Agent meeting the qualifications set forth above with the consent   of the Borrower (such consent not to be required if an Event of Default has occurred and is continuing at   the time of such assignment).  Whether or not a successor has been appointed, such resignation shall   become effective in accordance with such notice on the Resignation Effective Date.   (b) If the Person serving as Agent is a Defaulting Lender, the Required Lenders may,   to the extent permitted by applicable law, by notice in writing to such Person and the other parties hereto   remove such Person as Agent and, with the consent of the Borrower (such consent not to be required if an   Event of Default has occurred and is continuing at the time of such appointment), appoint a successor.  If   no such successor shall have been so appointed by the Required Lenders and shall have accepted such   appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the   “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with   such notice on the Removal Effective Date.   (c)  With effect from the Resignation Effective Date or the Removal Effective Date (as   applicable) (1) the retiring or removed Agent shall be discharged from its duties and obligations   hereunder and under the Notes (except that in the case of any collateral security held by the Agent on   behalf of the Lenders or the Issuing Banks hereunder, the retiring or removed Agent shall continue to hold   such collateral security until such time as a successor Agent is appointed) and (2) all payments,   communications and determinations provided to be made by, to or through the Agent shall instead be   made by or to each Lender and Issuing Bank directly, until such time, if any, as the Required Lenders   appoint a successor Agent as provided for above.  Upon the acceptance of a successor’s appointment as   Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,   privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be   discharged from all of its duties and obligations hereunder or under the Notes.  The fees payable by the   Borrower to a successor 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 Agent’s resignation or   removal hereunder, the provisions of this Article and Section 8.04 shall continue in effect for the benefit   of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any   actions taken or omitted to be taken by any of them while the retiring or removed Agent was acting as   Agent.     SECTION 7.08.  Non-Reliance on Agent and Other Lenders.  Each Lender and Issuing   Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or   any of their Related Parties and based on such documents and information as it has deemed appropriate,   made its own credit analysis and decision to enter into this Agreement.  Each Lender and Issuing Bank   also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or   any of their Related Parties and based on such documents and information as it shall from time to time   deem appropriate, continue to make its own decisions in taking or not taking action under or based upon   this Agreement, any Note or any related agreement or any document furnished hereunder or thereunder.   SECTION 7.09.  No Other Duties, etc.  Anything herein to the contrary notwithstanding,   none of the Bookrunners, Arrangers, syndication agent or co-documentation agent listed on the cover   page hereof shall have any powers, duties or responsibilities under this Agreement or any of the Notes,   except in its capacity, as applicable, as the Agent, a Lender or an Issuing Bank hereunder.       





 






    52   NYDOCS02/1089790   ARTICLE VIII   MISCELLANEOUS   SECTION 8.01.  Amendments, Etc.  No amendment or waiver of any provision of this   Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event be   effective unless the same shall be in writing and signed by the Required Lenders and (with respect to   amendments) the Borrower, and then such waiver or consent shall be effective only in the specific   instance and for the specific purpose for which given; provided, however, that (a) no amendment, waiver   or consent shall, unless in writing and signed by all the Lenders, do any of the following:  (i) waive any of   the conditions specified in Section 3.01, (ii) change the percentage of the Revolving Credit Commitments   or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be   required for the Lenders or any of them to take any action hereunder or (iii) amend this Section 8.01 and   (b) no amendment, waiver or consent shall, unless in writing and signed by the Required Lenders and   each Lender that is directly affected by such amendment, waiver or consent, (i) other than as provided in   Section 2.18, increase the Commitments of such Lenders, (ii) reduce the principal of, or rate of interest   on, the Advances or any fees or other amounts payable hereunder to such Lender (except that the approval   of the Required Lenders shall be sufficient to waive Default Interest imposed in accordance with Section   2.07(b)) or (iii) other than as provided in Section 2.19, postpone any date fixed for any payment of   principal of, or interest on, the Advances or any fees or other amounts payable hereunder to such Lender,   or extend (or permit the extension of) the expiration date of any Letter of Credit to a date later than 10   Business Days prior to the Termination Date; and provided further that (x) no amendment, waiver or   consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take   such action, affect the rights or duties of the Agent under this Agreement or any Note, (y) no amendment,   waiver or consent shall, unless in writing and signed by each Swing Line Bank, in addition to the Lenders   required above to take such action, affect the rights or obligations of the Swing Line Banks in their   capacities as such under this Agreement, and (z) no amendment, waiver or consent shall, unless in writing   and signed by the Issuing Banks in addition to the Lenders required above to take such action, adversely   affect the rights or obligations of the Issuing Banks in their capacities as such under this Agreement.   SECTION 8.02.  Notices, Etc.  (a)  Notices Generally.  Except in the case of notices and   other communications expressly permitted to be given by telephone (and except as provided in paragraph   (b) below), all notices and other communications provided for herein shall be in writing and shall be   delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile   as follows:   (i) if to the Borrower, to it at 222 West Adams  Street, Chicago, Illinois   60606, Attention of Treasurer (Facsimile No. (312) 621-6645; Telephone No. (312) 621-   6200);   (ii) if to the Agent, to it at 1615 Brett Road, Building #3, New Castle,   Delaware 19720, Attention of Bank Loan Syndications (Facsimile No. (212) 994-0961;   Telephone No. (302) 323-2478);   (iii) if to if to PNC Bank, National Association in its capacity as Issuing   Bank, to it at 6750 Miller Road Loc: BR-YB58-01-O, Brecksville, OH 44141, Attention   of Isalene Hasan, Senior Loan Support Analyst (Facsimile No. 877-718-7656; Telephone   No. 440-546-7388); if to U.S. Bank National Association in its capacity as Issuing Bank,   to it at 400 City Center, Oshkosh, WI 54901 Attention of NSLS Deal Administrator   (Facsimile No. 920-237-7993; Telephone No. 920-237-7601); and if to any other Issuing     





 






    53   NYDOCS02/1089790   Bank, to it at the address provided in writing to the Agent and the Borrower at the time of   its appointment as an Issuing Bank hereunder;    (iv) if to a Lender, to it at its address (or facsimile number) set forth in its   Administrative Questionnaire.   Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be   deemed to have been given when received; notices sent by facsimile 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 delivered   through electronic communications, to the extent provided in paragraph (b) below, shall be effective as   provided in said paragraph (b).   (b) Electronic Communications.  Notices and other communications to the Agent,   the Lenders and the Issuing Banks hereunder may be delivered or furnished by electronic communication   (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent,   provided that the foregoing shall not apply to notices to the Agent, any Lender or Issuing Bank pursuant   to Article II if the Agent, such Lender or Issuing Bank, as applicable, has notified the Borrower and the   Agent that it is incapable of receiving notices under such Article by electronic communication.  The   Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it   hereunder by electronic communications pursuant to procedures approved by it; provided that approval of   such procedures may be limited to particular notices or communications.   Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-   mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the   intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other   written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website   shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as   described in the foregoing clause (i), of notification that such notice or communication is available and   identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice,   email or other communication is not sent during the normal business hours of the recipient, such notice or   communication shall be deemed to have been sent at the opening of business on the next business day for   the recipient.   (c) Change of Address, etc.  Any party hereto may change its address or facsimile   number for notices and other communications hereunder by notice to the other parties hereto.   (d) Platform.   (i) The Borrower agrees that the Agent may, but shall not be obligated to,   make the Communications (as defined below) available to the Issuing Banks and the   other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a   substantially similar electronic transmission system (the “Platform”).   (ii) The Platform is provided “as is” and “as available.”  The Agent Parties   (as defined below) do not warrant the adequacy of the Platform and expressly disclaim   liability for errors or omissions in the Communications.  No warranty of any kind,   express, implied or statutory, including, without limitation, any warranty of   merchantability, fitness for a particular purpose, non-infringement of third-party rights or   freedom from viruses or other code defects, is made by any Agent Party in connection   with the Communications or the Platform.  In no event shall the Agent or any of its     





 






    54   NYDOCS02/1089790   Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any   Lender or any other Person or entity for damages of any kind, including, without   limitation, direct or indirect, special, incidental or consequential damages, losses or   expenses (whether in tort, contract or otherwise) arising out of the Agent’s transmission   of communications through the Platform.  “Communications” means, collectively, any   notice, demand, communication, information, document or other material that the   Borrower provides to the Agent pursuant to this Agreement or the transactions   contemplated therein which is distributed to the Agent, any Lender or any Issuing Bank   by means of electronic communications pursuant to this Section, including through the   Platform.   SECTION 8.03.  No Waiver; Remedies.  No failure on the part of any Lender or the   Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a   waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further   exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not   exclusive of any remedies provided by law.   SECTION 8.04.  Costs and Expenses.  (a)  The Borrower agrees to pay on demand all   reasonable costs and expenses of the Agent (supported by invoices) in connection with the preparation,   execution, delivery, administration, modification and amendment of this Agreement, the Notes and the   other documents to be delivered hereunder, including, without limitation, (A) all reasonable due   diligence, syndication (including printing, distribution and bank meetings), transportation and duplication   expenses and (B) the reasonable fees and expenses of counsel for the Agent with respect thereto and with   respect to advising the Agent as to its rights and responsibilities under this Agreement.  The Borrower   further agrees to pay on demand all costs and expenses (supported by invoices) of the Agent and the   Lenders, if any (including, without limitation, reasonable counsel fees and expenses), in connection with   the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the   Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees   and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights   under this Section 8.04(a).   (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender   and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an   “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses   (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or   awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of   (including, without limitation, in connection with any investigation, litigation or proceeding or   preparation of a defense in connection therewith) (i) the Notes, this Agreement, any of the transactions   contemplated herein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or   alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any   Environmental Liability relating in any way to the Borrower or any of its Subsidiaries, in each case except   to the extent such claim, damage, loss, liability or expense resulted from such Indemnified Party’s gross   negligence or willful misconduct.  In the case of an investigation, litigation or other proceeding to which   the indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such   investigation, litigation or proceeding is brought by the Borrower, its directors, equity holders or creditors   or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party   thereto and whether or not the transactions contemplated hereby are consummated.  The Borrower also   agrees not to assert any claim for special, indirect, consequential or punitive damages against the Agent,   any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and   agents, and the Lenders and the Agent agree not to assert any such claim against the Borrower, on any     





 






    55   NYDOCS02/1089790   theory of liability, arising out of or otherwise relating to the Notes, this Agreement, any of the   transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.   (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is   made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period   for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12,   acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an   Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advance upon an   assignment of rights and obligations under this Agreement pursuant to Section 8.07 as a result of a   demand by the Borrower pursuant to Section 2.21, or if any Borrowing of, Conversion into or   continuation of any Eurodollar Rate Advance is not effected after the Borrower has given notice thereof   (solely to the extent the failure to take effect was caused by the Borrower or a failure to satisfy the   applicable conditions in Section 3.02), the Borrower shall, upon demand by such Lender (with a copy of   such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to   compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a   result of such payment or Conversion, or as a result of any such Borrowing, Conversion or continuation   not being effected (solely to the extent the failure to take effect was caused by the Borrower or a failure to   satisfy the applicable conditions in Section 3.02), including, without limitation, any loss (excluding loss   of anticipated profits (including the Applicable Margin)), cost or expense incurred by reason of the   liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such   Advance.   (d) Without prejudice to the survival of any other agreement of the Borrower   hereunder, the agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall   survive the payment in full of principal, interest and all other amounts payable hereunder and under the   Notes.   SECTION 8.05.  Right of Set-off.  Upon (i) the occurrence and during the continuance of   any Event of Default and (ii) the making of the request or the granting of the consent specified by Section   6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions of Section   6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the   fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or   demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender   or such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations   of the Borrower now or hereafter existing under this Agreement and the Note held by such Lender,   whether or not such Lender shall have made any demand under this Agreement or such Note and although   such obligations may be unmatured.  Each Lender agrees promptly to notify the Borrower after any such   set-off and application, provided that the failure to give such notice shall not affect the validity of such   set-off and application; provided further, that in the event that any Defaulting Lender exercises any such   right of setoff, (x) all amounts so set off will be paid over immediately to the Agent for further application   in accordance with the provisions of Section 2.20(a) and, pending such payment, will be segregated by   such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent, the   Issuing Banks, the Swing Line Banks and the Lenders and (y) such Defaulting Lender will provide   promptly to the Agent a statement describing in reasonable detail the obligations owing to such   Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender and its   Affiliates under this Section are in addition to other rights and remedies (including, without limitation,   other rights of set-off) that such Lender and its Affiliates may have.   SECTION 8.06.  Binding Effect.  This Agreement shall become effective (other than   Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in   Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall     





 






    56   NYDOCS02/1089790   have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be   binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective   successors and assigns, except that the Borrower shall not have the right to assign its rights or obligations   hereunder or any interest herein without the prior written consent of each Lender (and any other attempted   assignment or transfer by the Borrower shall be null and void) and any replacement of the Agent shall be   in accordance with Section 7.07.   SECTION 8.07.  Assignments and Participations.  (a)  Successors and Assigns Generally.    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 paragraph (b) of this Section, (ii) by way of participation in   accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment,   or grant of a security interest, subject to the restrictions of paragraph (f) of this Section (and any other   attempted assignment or transfer by any Lender 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 paragraph (d) of   this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent   and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.   (b) Assignments by Lenders.  Any Lender may at any time assign to one or more   Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a   portion of its Revolving Credit Commitment, Letter of Credit Commitment or Swing Line Commitment   and the Advances 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.  Except in the case of an assignment of the entire remaining   amount of any assigning Lender’s Commitment and/or the Advances at the time owing to it (in   each case with respect to any Facility), the amount of (x) the Revolving Credit Commitment of   the assigning Lender being assigned pursuant to each such assignment (determined as of the date   of the Assignment and Assumption with respect to such assignment) shall in no event be less than   $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) the unused Letter of   Credit Commitment of the assigning Lender being assigned pursuant to each such assignment   (determined as of the date of the applicable Assignment and Assumption) shall in no event be less   than $1,000,000, unless, in each case, the Borrower and the Agent otherwise agree.    (ii) Proportionate Amounts.  Each partial assignment shall be made as an assignment   of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement   with respect to the Advances or the Commitment assigned, except that this clause (ii) shall not   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 paragraph (b)(i) of this Section and, in addition:   (A) the consent of the Borrower (such consent not to be unreasonably withheld or   delayed) shall be required unless (x) an Event of Default has occurred and is continuing   at the time of such assignment, or (y) such assignment is to a Lender or an Affiliate of a   Lender that is in the business of making and/or buying loans of the type described herein;   provided that (i) if the assignment is to an Affiliate of a Lender either the Borrower   consents to the assignment or the assignee represents and warrants that it will not fund   any portion of any Advance with the plan assets of any “employee benefit plan” (as   defined by Section 3(3) of ERISA) that is subject to Title I of ERISA, or any “plan”     





 






    57   NYDOCS02/1089790   defined by and subject to Section 4975 of the Code if it would cause the Borrower to   incur any prohibited transaction excise tax penalties under Section 4975 of the Code and   (ii) the Borrower shall be deemed to have consented to any such assignment unless it   shall object thereto by written notice to the Agent within ten Business Days after having   received notice thereof;     (B) the consent of the Agent (such consent not to be unreasonably withheld or   delayed) shall be required for assignments to a Person who is not a Lender or an Affiliate   of a Lender; and   (C) the consent of each Issuing Bank and Swing Line Bank (such consent not to   be unreasonably withheld or delayed) shall be required for any assignment in respect of   the Revolving Credit Facility.   (iv) Assignment and Assumption.  The parties to each assignment shall execute and   deliver to the Agent an Assignment and Assumption, together with a processing and recordation   fee of $3,500; provided that the 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 Agent an Administrative Questionnaire.   (v) No Assignment to Certain Persons.  No such assignment shall be made to (A) the   Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or   any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute   any of the foregoing Persons described in this clause (B).   (vi) No Assignment to Natural Persons.  No such assignment shall be made to a   natural Person.     (vii) Certain Additional Payments.  In connection with any assignment of rights and   obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and   until, in addition to the other conditions thereto set forth herein, the parties to such assignment   shall make such additional payments to the Agent in an aggregate amount sufficient, upon   distribution thereof as appropriate (which may be outright payment, purchases by the assignee of   participations or subparticipations, or other compensating actions, including funding, with the   consent of the Borrower and the Agent, the applicable pro rata share of Advances previously   requested but not funded by the Defaulting Lender, to each of which the applicable assignee and   assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then   owed by such Defaulting Lender to the Agent, each Issuing Bank, each Swing Line Bank and   each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as   appropriate) its full pro rata share of all Advances and participations in Letters of Credit and   Swing Line Advances in accordance with its Ratable Share.  Notwithstanding the foregoing, in   the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall   become effective under applicable law without compliance with the provisions of this paragraph,   then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of   this Agreement until such compliance occurs.   Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of   this Section, from and after the effective date specified in each Assignment and Assumption, the assignee   thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such   Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the   assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and     





 






    58   NYDOCS02/1089790   Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment   and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such   Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.11,   2.14 and 8.04 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.  Any assignment or transfer by a Lender of   rights or obligations under this Agreement that does not comply with this paragraph shall be treated for   purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in   accordance with paragraph (d) of this Section.   (c) Register.  The Agent, acting solely for this purpose as an agent of the Borrower,   shall maintain at one of its offices in the United States a copy of each Assignment and Assumption   delivered to it and a register for the recordation of the names and addresses of the Lenders, and the   Commitments of, and principal amounts of the Advances owing to, each Lender pursuant to the terms   hereof from time to time (the “Register”).  In addition, the Agent shall maintain on the Register   information regarding the designation and revocation of designation of any Lender as a Defaulting   Lender.  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the   Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the   terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available   for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon   reasonable prior notice.   (d) Participations.  Any Lender may at any time, without the consent of, or notice to,   the Borrower or the Agent, sell participations to any Person (other than a natural Person or the Borrower   or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such   Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitments   and/or the Advances 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 Agent, the Issuing Banks and the other   Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s   rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be   responsible for the indemnity under Section 7.05 with respect to any payments made by such Lender to its   Participant(s).   Any agreement or instrument pursuant to which a Lender sells such a participation shall   provide that such Lender shall retain the sole right to enforce this Agreement and to approve any   amendment, modification or waiver of any provision of this Agreement; provided that such agreement or   instrument may provide that such Lender will not, without the consent of the Participant, agree to any   amendment, modification or waiver described in clause (a) of the first proviso of Section 8.01 that affects   such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections   2.11, 2.14 and 8.04(c) to the same extent as if it were the granting Lender; provided that such Participant   agrees to be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (b) of this   Section.  No Participant shall be entitled to the benefits of Section 8.05.   (e) Limitations upon Participant Rights.  A Participant shall not be entitled to receive   any greater payment under Sections 2.11 or 2.14 than the applicable Lender would have been entitled to   receive with respect to the participation sold to such Participant, unless the sale of the participation to   such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign   Lender if it were a Lender shall not be entitled to the benefits of Section 2.14 unless the Borrower is     





 






    59   NYDOCS02/1089790   notified of the participation sold to such Participant and such Participant agrees, for the benefit of the   Borrower, to comply with Section 2.14(e) as though it were a Lender.   (f) Certain Pledges.  Any Lender may at any time pledge or assign, or grant a   security interest in, all or any portion of its rights under this Agreement to secure obligations of such   Lender, including any pledge or assignment, or grant of a security interest, to secure obligations to a   Federal Reserve Bank; provided that no such pledge or assignment or grant shall release such Lender   from any of its obligations hereunder or substitute any such pledgee or assignee or grantee for such   Lender as a party hereto.     (g) Any Lender may, in connection with any assignment or participation or proposed   assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or   proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or   on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or   proposed assignee or participant shall agree (for the benefit of the Borrower) to preserve the   confidentiality of any Borrower Information relating to the Borrower received by it from such Lender.   SECTION 8.08.  Confidentiality.  Neither the Agent nor any Lender may disclose to any   Person any confidential, proprietary or non-public information of the Borrower furnished to the Agent or   the Lenders by or on behalf of the Borrower (such information being referred to collectively herein as the   “Borrower Information”), except that each of the Agent and each of the Lenders may disclose Borrower   Information (a) to its Related Parties (it being understood that the Persons to whom such disclosure is   made will be informed of the confidential nature of such Borrower Information and instructed to keep   such Borrower Information confidential on substantially the same terms as provided herein), (b) to the   extent required or requested by any regulatory authority having jurisdiction over such Person or its   Related Parties (including any self-regulatory authority, such as the National Association of Insurance   Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or   similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies   hereunder or under any Note or any action or proceeding relating to this Agreement or any Note or the   enforcement of rights hereunder or thereunder; (f) subject to an agreement (for the benefit of the   Borrower) containing provisions substantially the same as those of this Section, to (i) any assignee of or   Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this   Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other   transaction under which payments are to be made by reference to the Borrower and its obligations, this   Agreement or payments hereunder; (g) to the extent such Information (x) becomes publicly available   other than as a result of a breach of this Section 8.08 by the Agent or such Lender, or (y) is or becomes   available to the Agent or such Lender on a nonconfidential basis from a source other than the Borrower   and (h) with the consent of the Borrower.   The Agent agrees (i) to keep confidential the rates to be used in the calculation of the   Reference Bank Rate supplied by each Reference Bank pursuant to or in connection with this Agreement   and (ii) that it has developed procedures to ensure that such rates are not submitted by the Reference   Banks to, or shared with, any individual who is formally designated as being involved in the ICE LIBOR   submission process; provided that such rates may be shared with the Borrower and any of its employees,   directors, agents, attorneys, accountants and other professional advisors or those of any of its affiliates   that have a commercially reasonable business need to know such rates, subject to an agreement by the   recipient thereof to comply with the provisions of this paragraph as if it were the Agent.   SECTION 8.09.  Governing Law.  This Agreement and the Notes shall be governed by,   and construed in accordance with, the laws of the State of New York.     





 






    60   NYDOCS02/1089790   SECTION 8.10.  Execution in Counterparts.  This Agreement may be executed in any   number of counterparts and by different parties hereto in separate counterparts, each of which when so   executed shall be deemed to be an original and all of which taken together shall constitute one and the   same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile   shall be effective as delivery of a manually executed counterpart of this Agreement.   SECTION 8.11.  Jurisdiction, Etc.  (a)  Each party hereto 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 any other party hereto or any Related   Party of the foregoing in any way relating to this Agreement or any Note 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 for 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, 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.  The Borrower hereby agrees that service of process in any such   action or proceeding brought in the any such New York State court or in such federal court may be made   upon CT Corporation System at its offices at 111 Eighth Avenue, New York, New York 10011 (the   “Process Agent”) and the Borrower hereby irrevocably appoints the Process Agent its authorized agent to   accept such service of process, and agrees that the failure of the Process Agent to give any notice of any   such service shall not impair or affect the validity of such service or of any judgment rendered in any   action or proceeding based thereon.  The Borrower hereby further irrevocably consents to the service of   process in any action or proceeding in such courts by the mailing thereof by any parties hereto by   registered or certified mail, postage prepaid, to the Borrower at its address specified pursuant to Section   8.02.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be   conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner   provided by law.    (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest   extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying   of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any   New York State or federal court.  Each of the parties hereto hereby irrevocably waives, to the fullest   extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or   proceeding in any such court.   SECTION 8.12.  No Liability of the Issuing Banks.  The Borrower assumes all risks of   the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such   Letter of Credit.  Neither an Issuing Bank nor any of its officers or directors shall be liable or responsible   for:  (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or   transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any   endorsement thereon, even if such documents should prove to be in any or all respects invalid,   insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation of documents   that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any   reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in   making or failing to make payment under any Letter of Credit, except that the Borrower shall have a   claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of   any direct, but not consequential damages suffered by the Borrower that the Borrower proves were caused   by (i) such Issuing Bank’s willful misconduct or gross negligence in determining whether documents   presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing   Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a   draft and certificates strictly complying with the terms and conditions of the Letter of Credit.  In     





 






    61   NYDOCS02/1089790   furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear   on their face to be in order, without responsibility for further investigation.   SECTION 8.13.  Patriot Act.  Each Lender hereby notifies the Borrower that pursuant to   the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))   (the “Act”), it is required to obtain, verify and record information that identifies each borrower, guarantor   or grantor (the “Loan Parties”), which information includes the name and address of each Loan Party and   other information that will allow such Lender to identify such Loan Party in accordance with the Act.   SECTION 8.14.  Acknowledgement and Consent to Bail-In of EEA Financial   Institutions.     Notwithstanding anything to the contrary in this Agreement, any Note or in any other   agreement, arrangement or understanding among any such parties, each party hereto acknowledges that   any liability of any EEA Financial Institution arising under this Agreement, to the extent such liability is   unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and   agrees and consents to, and acknowledges and agrees to be bound by:   (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority   to any such liabilities arising hereunder which may be payable to it by any party hereto that is   an EEA Financial Institution; and   (b) the effects of any Bail-in Action on any such liability, including, if applicable:   (i) a reduction in full or in part or cancellation of any such liability;   (ii) a conversion of all, or a portion of, such liability into shares or other instruments of   ownership in such EEA Financial Institution, its parent undertaking, or a bridge   institution that may be issued to it or otherwise conferred on it, and that such shares   or other instruments of ownership will be accepted by it in lieu of any rights with   respect to any such liability under this Agreement; or   (iii) the variation of the terms of such liability in connection with the exercise of the   write-down and conversion powers of any EEA Resolution Authority.   As used in this Agreement, the following terms shall have the following meanings:   “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the   applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.   “Bail-In Legislation” means, with respect to any EEA Member Country implementing   Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European   Union, the implementing law for such EEA Member Country from time to time which is described in the   EU Bail-In Legislation Schedule.   “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;      





 






    62   NYDOCS02/1089790   “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.   “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.    “Write-Down and Conversion Powers” means, with respect to any EEA Resolution   Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time   under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion   powers are described in the EU Bail-In Legislation Schedule.     





 






    GATX – Credit Agreement   NYDOCS02/1089790   SECTION 8.15.  Waiver of Jury Trial.  Each of the Borrower, the Agent and the Lenders   hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether   based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the   actions of the Agent or any Lender in the negotiation, administration, performance or enforcement   thereof.   IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed   by their respective officers thereunto duly authorized, as of the date first above written.   GATX CORPORATION      By /s/ Eric G. Hess    Name:  Eric G. Hess   Title:  Assistant Treasurer      CITIBANK, N.A.,   as Agent and Lender      By  /s/ Maureen Maroney    Name:  Maureen Maroney   Title:  Vice President          BANK OF AMERICA, N.A.      By  /s/ Irene Bertozzi Bartenstein    Name:  Irene Bertozzi Bartenstein   Title:  Director          PNC BANK, NATIONAL ASSOCIATION      By  /s/ Kristin L. Lenda    Name:  Kristin L. Lenda   Title:  Senior Vice President         U.S. BANK NATIONAL ASSOCIATION      By  /s/ James N. DeVries    Name:  James N. DeVries   Title:  Senior Vice President        





 






    GATX – Credit Agreement   NYDOCS02/1089790    BAYERISCHE LANDESBANK, NEW YORK   BRANCH      By  /s/ Rolf Siebert    Name:  Rolf Siebert   Title:  Executive Director      By  /s/ Elke Videgain    Name:  Elke Videgain   Title:  Vice President          MORGAN STANLEY BANK, N.A.      By  /s/ Michael King    Name:  Michael King   Title:  Authorized Signatory          KEYBANK NATIONAL ASSOCIATION      By  /s/ Tad L. Stainbrook    Name:  Tad L. Stainbrook   Title:  Vice President          MIZUHO BANK, LTD.      By  /s/ Donna DeMagistris    Name:  Donna DeMagistris   Title:  Authorized Signatory          BMO HARRIS BANK N.A.      By  /s/ Kenneth J. Kramer    Name:  Kenneth J. Kramer   Title:  Director           THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.      By  /s/ Lawrence Elkins    Name:  Lawrence Elkins   Title:  Vice President     





 






    GATX – Credit Agreement   NYDOCS02/1089790    THE NORTHERN TRUST COMPANY      By  /s/ Wicks Barkhausen    Name:  Wicks Barkhausen   Title:  Vice President          THE BANK OF NEW YORK MELLON      By  /s/ John T. Smathers    Name:  John T. Smathers   Title:  First Vice President        





 






   NYDOCS02/1089790   SCHEDULE I   GATX CORPORATION   CREDIT AGREEMENT         Name of Initial Lender Revolving Credit   Commitment   Swing Line   Commitment   Letter of Credit   Commitment   Bank of America, N.A. $92,500,000     Citibank, N.A. $92,500,000 $30,000,000    PNC Bank, National   Association   $65,000,000  $20,000,000   U.S. Bank National   Association   $65,000,000  $20,000,000   Bayerische Landesbank,   New York Branch   $50,000,000     Morgan Stanley Bank,   N.A.   $50,000,000     KeyBank National   Association   $40,000,000     Mizuho Bank, Ltd. $40,000,000     BMO Harris Bank N.A. $30,000,000     The Bank of Tokyo-   Mitsubishi UFJ, Ltd.   $30,000,000     The Northern Trust   Company   $30,000,000     The Bank of New York   Mellon   $15,000,000           Total $600,000,000 $30,000,000 $40,000,000           





 






   NYDOCS02/1089790   Schedule 2.01(b)   Existing Letters of Credit         None    





 






   NYDOCS02/1089790   EXHIBIT A - FORM OF   NOTE   U.S.$_______________    Dated:  _______________, 201_   FOR VALUE RECEIVED, the undersigned, GATX CORPORATION, a New York   corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of   _________________________ (the “Lender”) for the account of its Applicable Lending Office on the   Termination Date applicable to such Lender (each as defined in the Credit Agreement referred to below)   the principal sum of U.S.$[amount of the Lender’s Revolving Credit Commitment in figures] or, if less,   the aggregate principal amount of the Revolving Credit Advances (as defined below) made by the Lender   to the Borrower pursuant to the Five Year Credit Agreement dated as of May 26, 2016 among the   Borrower, the Lender and certain other lenders parties thereto, and Citibank, N.A., as Agent for the   Lender and such other lenders (as amended or modified from time to time, the “Credit Agreement”; the   terms defined therein being used herein as therein defined) outstanding on such Termination Date.   The Borrower promises to pay interest on the unpaid principal amount of each Revolving   Credit Advance from the date of such Revolving Credit Advance until such principal amount is paid in   full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.   Both principal and interest are payable in lawful money of the United States of America   to Citibank, as Agent, at 388 Greenwich Street, New York, New York 10013, in same day funds.  Each   Revolving Credit Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and   all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any   transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.   This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,   the Credit Agreement.  The Credit Agreement, among other things, (i) provides for the making of   advances (the “Revolving Credit Advances”) by the Lender to the Borrower from time to time in an   aggregate amount not to exceed at any time outstanding the U.S. dollar amount first above mentioned, the   indebtedness of the Borrower resulting from each such Revolving Credit Advance being evidenced by   this Promissory Note and (ii) contains provisions for acceleration of the maturity hereof upon the   happening of certain stated events and also for prepayments on account of principal hereof prior to the   maturity hereof upon the terms and conditions therein specified.   GATX CORPORATION   By __________________________          Title:    





 






    2   NYDOCS02/1089790   ADVANCES AND PAYMENTS OF PRINCIPAL               Date      Amount of   Advance   Amount of   Principal Paid   or Prepaid      Unpaid Principal   Balance      Notation   Made By                                                                                                                                                                                    





 






   NYDOCS02/1089790   EXHIBIT B - FORM OF NOTICE OF   BORROWING   Citibank, N.A., as Agent     for the Lenders parties     to the Credit Agreement     referred to below     16115 Brett Road, Building #3     New Castle, Delaware 19720   [Date]   Attention: Bank Loan Syndications Department   Ladies and Gentlemen:   The undersigned, GATX Corporation, refers to the Five Year Credit Agreement, dated as   of May 26, 2016 (as amended or modified from time to time, the “Credit Agreement”, the terms defined   therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto and    Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to   Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit   Agreement, and in that connection sets forth below the information relating to such Borrowing (the   “Proposed Borrowing”) as required by Section 2.02(a) of the Credit Agreement:   (i) The Business Day of the Proposed Borrowing is _______________, 20__.   (ii) The Facility under which the Proposed Borrowing is requested is the   _______________ Facility.   (iii) The Type of Advances comprising the Proposed Borrowing is [Base Rate   Advances] [Eurodollar Rate Advances] [LIBOR Swing Line Advance] [Fed   Funds Swing Line Advance].   (iv) The aggregate amount of the Proposed Borrowing is $_______________.   (v) [The initial Interest Period for each Eurodollar Rate Advance made as part of the   Proposed Borrowing is _____ [week[s]] [month[s]].]   The undersigned hereby certifies that the following statements are true on the date hereof,   and will be true on the date of the Proposed Borrowing:   (A) the representations and warranties contained in Section 4.01 of the Credit   Agreement (except the representations set forth in subsection (d)(ii) thereof and in subsection (f)   thereof) are correct, before and after giving effect to the Proposed Borrowing and to the   application of the proceeds therefrom, as though made on and as of such date, except to the extent   such representation or warranty related to a specific earlier date, in which case such   representation or warranty shall have been true and correct as of such earlier date;     





 






    2   NYDOCS02/1089790   (B) no event has occurred and is continuing, or would result from such Proposed   Borrowing or from the application of the proceeds therefrom, that constitutes a Default; and   Very truly yours,   GATX CORPORATION   By __________________________         Title:     





 






      NYDOCS02/1089790   EXHIBIT C - FORM OF   ASSIGNMENT AND ASSUMPTION   This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the   Assignment Effective Date set forth below and is entered into by and between [the][each]1 Assignor   identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below   ([the][each, an] “Assignee”).  [It is understood and agreed that the rights and obligations of [the   Assignors][the Assignees]3 hereunder are several and not joint.]4  Capitalized terms used but not defined   herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the   “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee.  The   Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated   herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.   For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to   [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and   assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard   Terms and Conditions and the Credit Agreement, as of the Assignment Effective Date inserted by the   Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in   [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other   documents or instruments delivered pursuant thereto to the extent related to the amount and percentage   interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective   Assignors] under the respective Facilities identified below (including without limitation any letters of   credit, guarantees, and Swing Line Advances included in such Facilities), and (ii) to the extent permitted to   be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in   its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any   Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other   documents or instruments delivered pursuant thereto or the credit transactions governed thereby or in any   way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims,   malpractice claims, statutory claims and all other claims at law or in equity related to the rights and   obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by   [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein   collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without recourse to   [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without   representation or warranty by [the][any] Assignor.     1. Assignor[s]:  ________________________________          ______________________________    [Assignor [is] [is not] a Defaulting Lender]                                                      1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the   assignment is from a single Assignor, choose the first bracketed language.  If the   assignment is from multiple Assignors, choose the second bracketed language.   2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the   assignment is to a single Assignee, choose the first bracketed language.  If the assignment   is to multiple Assignees, choose the second bracketed language.   3 Select as appropriate.   4 Include bracketed language if there are either multiple Assignors or multiple Assignees.     





 






-2-   NYDOCS02/1089790      2. Assignee[s]:  ______________________________          ______________________________    [for each Assignee, indicate [Affiliate] of [identify Lender]]      3. Borrower(s):  ______________________________      4. Agent: Citibank, N.A., as the administrative agent under the Credit Agreement      5. Credit Agreement: The $600,000,000 Five Year Credit Agreement dated as of May 26, 2016   among GATX Corporation, the Lenders parties thereto, Citibank, N.A., as   Agent, and the other agents parties thereto      6.  Assigned Interest[s]:      Assignor[s]5 Assignee[s]6   Facility   Assigned 7   Aggregate Amount of   Commitment/Advances   for all Lenders 8   Amount of   Commitment/Advances   Assigned    Percentage   Assigned of   Commitment/   Advances 9   CUSIP   Number      $ $ %       $ $ %       $ $ %       [7. Trade Date:  ______________]10      [Page break]                                                      5 List each Assignor, as appropriate.   6 List each Assignee, as appropriate.   7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being   assigned under this Assignment (e.g., “Revolving Credit Commitment,” “Letter of Credit   Commitment,” etc.)   8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made   between the Trade Date and the Effective Date.   9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.   10 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to   be determined as of the Trade Date.     





 






-3-   NYDOCS02/1089790            Assignment Effective Date:   _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH   SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER   THEREFOR.]      The terms set forth in this Assignment and Assumption are hereby agreed to:      ASSIGNOR[S]11   [NAME OF ASSIGNOR]         By:______________________________      Title:      [NAME OF ASSIGNOR]         By:______________________________      Title:      ASSIGNEE[S]12   [NAME OF ASSIGNEE]         By:______________________________      Title:         [NAME OF ASSIGNEE]         By:______________________________      Title:      [Consented to and]13 Accepted:      CITIBANK, N.A., as      Agent         By: _________________________________     Title:                                                      11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the   trade (if applicable).   12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the   trade (if applicable).   13 To be added only if the consent of the Agent is required by the terms of the Credit Agreement.     





 






-4-   NYDOCS02/1089790      [Consented to:]14       [NAME OF RELEVANT PARTY]         By: ________________________________     Title:                                                        14 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Bank, Issuing   Bank) is required by the terms of the Credit Agreement.       





 






      NYDOCS02/1089790   ANNEX 1      GATX Corporation Credit Agreement      STANDARD TERMS AND CONDITIONS FOR   ASSIGNMENT AND ASSUMPTION        1. Representations and Warranties.          1.1 Assignor[s].  [The][Each] Assignor (a) represents and warrants that (i) it is the   legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is   free and clear of any lien, encumbrance or other adverse claim created by [the][such] Assignor, (iii) it has   full power and authority, and has taken all action necessary, to execute and deliver this Assignment and   Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting   Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations   made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability,   genuineness, sufficiency or value of the Credit Agreement or any collateral thereunder, (iii) the financial   condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of   the Credit Agreement, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or   Affiliates or any other Person of any of their respective obligations under the Credit Agreement.     1.2. Assignee[s].  [The][Each] Assignee (a) represents and warrants that (i) it has full   power and authority, and has taken all action necessary, to execute and deliver this Assignment and   Assumption and to consummate the transactions contemplated hereby and to become a Lender under the   Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii), (v) and   (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section   8.07(b)(iii) of the Credit Agreement), (iii) from and after the Assignment Effective Date, it shall be bound   by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant]   Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to   decisions to acquire assets of the type represented by the [relevant] Assigned Interest and either it, or the   Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in   acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has   been accorded the opportunity to receive copies of the most recent financial statements referred to in   Section 4.01(d) thereof or delivered pursuant to Section 5.01(a) thereof, as applicable, and such other   documents and information as it deems appropriate to make its own credit analysis and decision to enter   into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has,   independently and without reliance upon the Agent or any other Lender and based on such documents and   information as it has deemed appropriate, made its own credit analysis and decision to enter into this   Assignment and Assumption and to purchase [the][such] Assigned Interest, (vii) it will not be a   Defaulting Lender immediately after such assignment, (viii) if it is a Foreign Lender, attached to this   Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of   the Credit Agreement, duly completed and executed by [the][such] Assignee and (ix) if it is an Affiliate of   a Lender, either the Borrower consents or is deemed to have consented to such assignment or it will not   fund any portion of any Advance with the plan assets of any “employee benefit plan” (as defined by   Section 3(3) of ERISA) that is subject to Title I of ERISA, or any “plan” defined by and subject to   Section 4975 of the Code if it would cause the Borrower to incur any prohibited transaction excise tax   penalties under Section 4975 of the Code; and (b) agrees that (i) it will, independently and without   reliance on the Agent, [the][any] Assignor or any other Lender, and based on such documents and   information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or   not taking action under the Credit Agreement, and (ii) it will perform in accordance with their terms all of     





 






-2-   NYDOCS02/1089790   the obligations which by the terms of the Credit Agreement are required to be performed by it as a   Lender.     2. Payments.  From and after the Assignment Effective Date, the Agent shall make   all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees   and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or   after the Assignment Effective Date.  The Assignor[s] and the Assignee[s] shall make all appropriate   adjustments in payments by the Agent for periods prior to the Assignment Effective Date or with respect   to the making of this assignment directly between themselves.     3. General Provisions.  This Assignment and Assumption shall be binding upon,   and inure to the benefit of, the parties hereto and their respective successors and assigns.  This   Assignment and Assumption may be executed in any number of counterparts, which together shall   constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment   and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this   Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in   accordance with, the law of the State of New York.        





 






       i   NYDOCS02/1089790   EXHIBIT D - FORM OF   OPINION OF COUNSEL   FOR THE BORROWER