firstamendmenttocreditag






Execution Version  FIRST AMENDMENT TO CREDIT AGREEMENT  This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated  effective as of December 12, 2022 (the “First Amendment Effective Date”), by and among  NATURAL GAS SERVICES GROUP, INC., a Colorado corporation (“Holdings”), the other  Loan Parties party hereto, TEXAS CAPITAL BANK (formerly known as Texas Capital Bank,  National Association), in its capacity as Administrative Agent (the “Administrative Agent”), and  the Lenders party hereto.   RECITALS:  WHEREAS, the Loan Parties are party to that certain Credit Agreement dated as of May  11, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified prior  to the date hereof, the “Credit Agreement”), by and among Holdings, the other Loan Parties from  time to time party thereto, the Lenders from time to time party thereto and the Administrative  Agent.  Capitalized terms used but not defined herein have the meaning set forth in the Credit  Agreement, as amended by this Amendment (the “Amended Credit Agreement”).  WHEREAS, Holdings has requested the Administrative Agent and Lenders agree to amend  certain terms and provisions of the Credit Agreement as more particularly described in this  Amendment.  WHEREAS, subject to and upon the terms and conditions set forth herein, the  Administrative Agent and the Lenders have agreed to Holdings’ requests as set forth herein.  NOW THEREFORE, in consideration of the mutual agreements herein contained and other  good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,  the parties hereto agree as follows:  SECTION 1. Amendments to the Credit Agreement.  In reliance upon the  representations, warranties, covenants and conditions contained in this Amendment, and subject  to the terms, and satisfaction of the conditions precedent set forth in Section 2 hereof, the Credit  Agreement is hereby amended as of the First Amendment Effective Date in the manner provided  in this Section 1.  1.1 Amended Credit Agreement.  The Credit Agreement (other than the  signature pages, Annexes, Exhibits and Schedules thereto, except as set forth in Section 1.2  through Section 1.5 set forth below) is hereby amended (a) to delete the red or green stricken text  (indicated textually in the same manner as the following examples: stricken text and stricken text)  and (b) to add the blue or green double-underlined text (indicated textually in the same manner as  the following examples: double-underlined text and double-underlined text), in each case, as set  forth in the marked copy of the Credit Agreement attached as Annex A hereto.  1.2 Replacement of Schedule 2.1 to the Credit Agreement.  Effective as of the  First Amendment Effective Date, the aggregate Commitments are hereby increased from  $20,000,000 to $30,000,000, and Schedule 2.1 attached to the Credit Agreement is hereby replaced  in its entirety with Schedule 2.1 attached hereto.  Schedule 2.1 attached hereto shall be deemed to  be attached as Schedule 2.1 to the Credit Agreement as of the First Amendment Effective Date.  US 9466642v.3 TEX183/52000 





 






2  1.3 Replacement of Schedule 11.11 to the Credit Agreement.  Schedule 11.11  to the Credit Agreement is hereby replaced in its entirety with Schedule 11.11 attached hereto, and  Schedule 11.11 attached hereto is hereby deemed to be attached as Schedule 11.11 to the Credit  Agreement as of the First Amendment Effective Date.  1.4 Replacement of Exhibit D to the Credit Agreement.  Exhibit D to the Credit  Agreement is hereby replaced in its entirety with Exhibit D attached hereto, and Exhibit D attached  hereto is hereby deemed to be attached as Exhibit D to the Credit Agreement as of the First  Amendment Effective Date.  1.5 Amendments to Exhibits to the Credit Agreement.  Exhibits A, B, C, E, F,  G-1, G-2, G-3, G-4 and H to the Credit Agreement are each hereby amended by replacing each  reference to “Texas Capital Bank, National Association” therein with “Texas Capital Bank”.  SECTION 2. Conditions Precedent to Amendment.  This Amendment will be effective  as of the First Amendment Effective Date on the condition that the following conditions precedent  will have been satisfied:  2.1 Counterparts.  The Administrative Agent shall have received counterparts  of this Amendment duly executed by each of the Loan Parties, the Administrative Agent and each  Lender.  2.2 Notes.  The Administrative Agent shall have received duly executed Notes  (or any amendment and restatement thereof, as the case may be) payable to each Lender requesting  a Note (or amendment and restatement thereof, as the case may be) in a principal amount equal to  its Commitment dated as of the date hereof.  2.3 Officer’s Certificate.  The Administrative Agent shall have received a  certificate of a Responsible Officer of each of the Loan Parties setting forth and/or attaching thereto  (a) resolutions of the members, board of directors or other appropriate governing body with respect  to the authorization of each such Loan Party to execute and deliver this Amendment and the other  Loan Documents to which it is a party and to enter into the transactions contemplated in those  documents, (b) the officers of each such Loan Party who are authorized to sign the Loan  Documents to which such Loan Party is a party and who will, until replaced by another officer or  officers duly authorized for that purpose, act as its representative for the purposes of signing  documents and giving notices and other communications in connection with the Amended Credit  Agreement, and the transactions contemplated thereby, (c) specimen signatures of such authorized  officers, (d) the Constituent Documents of each such Loan Party, certified as being true and  complete, and (e) a certificate of the appropriate government officials of the state of incorporation  or organization of such Loan Party as to the existence and standing of such Loan Party dated as of  a recent date hereof.  2.4 Opinion of Counsel.  The Administrative Agent shall have received a  favorable opinion dated as of the First Amendment Effective Date and in form and substance  reasonably satisfactory to the Administrative Agent of  Jones & Keller P.C., legal counsel to the  Loan Parties, covering such matters as the Administrative Agent may reasonably request.  





 






3  2.5 Borrowing Base Report. The Administrative Agent shall have received an  updated Borrowing Base Report which calculates the Borrowing Base as of a date acceptable to  the Administrative Agent, along with customary supporting documentation satisfactory to the  Administrative Agent.  2.6 Closing Certificate.  The Administrative Agent shall have received a  certificate of a Responsible Officer of the Borrower Representative certifying (which statements  shall constitute a representation and warranty made by the Loan Parties to the Lenders hereunder  on the First Amendment Effective Date) that, as of the First Amendment Effective Date, (a) no  Default or Event of Default has occurred and is continuing and (b) all representations and  warranties made by any Loan Party contained in the Credit Agreement and the other Loan  Documents, in each case as amended hereby, are true and correct in all material respects (without  duplication of any materiality qualification applicable thereto) on and as of the date hereof as  though made on and as of the date hereof, except to the extent such representations and warranties  expressly relate to an earlier date, in which case such representations and warranties were true and  correct as of such earlier date, and except for any change of facts expressly permitted under the  provisions of the Amended Credit Agreement and the other Loan Documents.  2.7 Perfection Certificate.  The Administrative shall have received a Perfection  Certificate dated as of the First Amendment Effective Date signed by a Responsible Officer of  each Loan Party.  2.8 Amendment Fee.  The Administrative Agent shall have received, an  amendment fee in an amount equal to $30,000, which fee shall be fully earned and due and payable  in full in cash on the First Amendment Effective Date.  2.9 Expenses.  The Administrative Agent shall have received payment or  reimbursement of its out-of-pocket expenses in connection with this Amendment and any other  out-of-pocket expenses of the Administrative Agent required to be paid or reimbursed pursuant to  the Credit Agreement, including the reasonable fees, charges and disbursements of counsel for the  Administrative Agent.  2.10 Other Documents.  The Administrative Agent shall have been provided with  such documents, instruments and agreements, and the Borrowers shall have taken such actions, in  each case as the Administrative Agent may reasonably require in connection with this Amendment  and the transactions contemplated hereby.  SECTION 3. Representations and Warranties.  Each Loan Party hereby represents and  warrants to the Lenders the following:  3.1 Representations and Warranties. The representations and warranties  contained in the Amended Credit Agreement and the other Loan Documents are true and correct  in all material respects (without duplication of any materiality qualification applicable thereto) on  and as of the date hereof as though made on and as of the date hereof, except to the extent such  representations and warranties expressly relate to an earlier date, in which case such  representations and warranties are true and correct as of such earlier date, and except for any  





 






4  change of facts expressly permitted under the provisions of the Amended Credit Agreement and  the other Loan Documents.  3.2 No Default.  No Default or Event of Default has occurred and is continuing  as of the date hereof.  3.3 Enforceability.  This Amendment has been duly executed and delivered by  such Loan Party, and the Amended Credit Agreement constitutes a legal, valid and binding  obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms,  subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws  affecting creditors’ rights generally and subject to general principles of equity, regardless of  whether considered in a proceeding in equity or at law.  SECTION 4. Existing Eurodollar Rate Loans.  Notwithstanding anything to the  contrary in this Amendment or in the Amended Credit Agreement, all “Eurodollar Rate Loans”  (under and as defined in the Credit Agreement as in effect immediately prior to giving effect to  this Amendment) outstanding immediately prior to the effectiveness of this Amendment, if any,  shall, on the First Amendment Effective Date, be rearranged and converted into Term SOFR Loans  with an Interest Period of one-month’s duration (commencing on the First Amendment Effective  Date), and which Term SOFR Loans shall thereafter be subject to the terms and conditions of the  Amended Credit Agreement, and the Borrower Representative shall deliver any Borrowing  Request or notice of continuation or conversion as the Administrative Agent may reasonably  require in connection with the foregoing.  Each Lender hereby waives any payments owing to such  Lender that are required under Section 3.5 of the Credit Agreement (prior to giving effect to this  Amendment) in connection with or  as a result of the rearrangement and conversion contemplated  by this Section 4.  SECTION 5. Survival of Representations and Warranties.  All representations and  warranties made in this Amendment, including any Loan Document furnished in connection with  this Amendment, shall survive the execution and delivery of this Amendment and the other Loan  Documents, and no investigation by the Administrative Agent or any closing shall affect the  representations and warranties or the right of the Administrative Agent or any Lender to rely upon  them.  SECTION 6. Expenses.  As provided in Section 11.1 of the Amended Credit Agreement,  and subject to the limitations expressly set forth therein, Holdings hereby agrees to pay on demand  all legal and other fees, costs and expenses incurred by the Administrative Agent in connection  with the negotiation, preparation, and execution of this Amendment and all related documents.  SECTION 7. No Implied Waivers.  No failure or delay on the part of the Administrative  Agent or any Lender in exercising, and no course of dealing with respect to, any right, power or  privilege under this Amendment, the Credit Agreement or any other Loan Document shall operate  as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under  this Amendment, the Credit Agreement or any other Loan Document preclude any other or further  exercise thereof or the exercise of any other right, power or privilege.  





 






5  SECTION 8. Ratification and Affirmation of Loan Parties.  Each of the Loan Parties  hereby expressly (a) acknowledges the terms of this Amendment, (b) ratifies and affirms its  obligations under the Loan Documents to which it is a party, (c) acknowledges, renews and  extends its continued liability under the Loan Documents to which it is a party, and (d) agrees,  with respect to each Loan Party that is a Guarantor, that its guarantee under the Guaranty remains  in full force and effect with respect to the Obligations as amended hereby. Any and all of the  terms and provisions of the Credit Agreement and the other Loan Documents shall, except as  amended hereby, remain in full force and effect.  The Loan Parties hereby extend the Liens  securing the Obligations (as amended hereby) until the Obligations have been paid in full, and  agree that the amendments herein contained shall in no manner affect or impair the Obligations  or the Liens securing payment and performance thereof, all of which are ratified and confirmed.   SECTION 9. Severability.  Any provision of this Amendment that is prohibited or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  prohibition or unenforceability without invalidating the remaining portions hereof or affecting the  validity or enforceability of such provision in any other jurisdiction.  SECTION 10. APPLICABLE LAW.  THIS AMENDMENT SHALL BE GOVERNED  BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.  SECTION 11. Successors and Assigns.  This Amendment is binding upon and shall inure  to the benefit of the Administrative Agent, the Lenders and the Loan Parties and their respective  successors and permitted assigns, except the Loan Parties may not assign or transfer any of their  rights or obligations hereunder without the prior written consent of the Administrative Agent, other  than as expressly permitted under the terms of the Amended Credit Agreement.  SECTION 12. Counterparts.  This Amendment may be executed in any number of  counterparts and by different parties hereto in separate counterparts, each of which when so  executed and delivered shall be deemed an original but all of which when taken together shall  constitute but one and the same instrument.  Delivery of an executed signature page of this  Amendment by facsimile transmission or PDF electronic transmission shall be effective as  delivery of a manually executed counterpart hereof.  The execution and delivery of this  Amendment shall be deemed to include Electronic Signatures on electronic platforms approved by  the Administrative Agent, which shall be of the same legal effect, validity or enforceability as  delivery of a manually executed signature, to the extent and as provided for in any applicable law,  including the Federal Electronic Signatures in Global and National Commerce Act, the New York  State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform  Electronic Transactions Act; provided that, upon the request of any party hereto, such Electronic  Signature shall be promptly followed by the original thereof.  SECTION 13. Effect of Consent.  No consent or waiver, express or implied, by the  Administrative Agent to or for any breach of or deviation from any covenant, condition or duty by  the Borrowers shall be deemed a consent or waiver to or of any other breach of the same or any  other covenant, condition or duty.  SECTION 14. Headings.  The headings of this Amendment are for purposes of reference  only and shall not limit or otherwise affect the meaning hereof.  





 






6  SECTION 15. Reaffirmation of Loan Documents.  This Amendment shall be deemed to  be an amendment to the Credit Agreement, and the Amended Credit Agreement and the other Loan  Documents are hereby ratified, approved and confirmed in each and every respect.  All references  to the Credit Agreement herein and in any other document, instrument, agreement or writing shall  hereafter be deemed to refer to the Amended Credit Agreement.  SECTION 16. Loan Document.  This Amendment constitutes a “Loan Document” under  and as defined in the Amended Credit Agreement.  SECTION 17. Entire Agreement.  THE CREDIT AGREEMENT, THIS AMENDMENT,  THE OTHER LOAN DOCUMENTS, AND ALL OTHER INSTRUMENTS, DOCUMENTS  AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS  AMENDMENT REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND  MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR  SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO ORAL  AGREEMENTS AMONG THE PARTIES.  [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]  





 






 





 






 





 






 





 






ANNEX A  Amended Credit Agreement  [Attached]  





 






Execution Version  Annex A to First Amendment to Credit Agreement        CREDIT AGREEMENT      among    NATURAL GAS SERVICES GROUP, INC.,  as a Borrower,    and    THE OTHER LOAN PARTIES FROM TIME TO TIME PARTY HERETO,      THE LENDERS FROM TIME TO TIME PARTY HERETO      and      TEXAS CAPITAL BANK,  NATIONAL ASSOCIATION,as Administrative Agent, Swing Line Lender and L/C Issuer          TEXAS CAPITAL BANK,  NATIONAL ASSOCIATION,as Sole Lead Arranger and Sole Book Runner        DATED AS OF MAY 11, 2021  US 9466650v.1  US 9466650v.3 TEX183/52000  





 






   i  TABLE OF CONTENTS  Page  ARTICLE 1. DEFINITIONS .......................................................................................................... 1  Section 1.1 Definitions..........................................................................................................1  Section 1.2 Accounting Matters ..........................................................................................47  Section 1.3 ERISA Matters .................................................................................................48  Section 1.4 Letter of Credit Amounts .................................................................................48  Section 1.5 Other Definitional Provisions ..........................................................................48  Section 1.6 Interpretative Provision ....................................................................................49  Section 1.7 Times of Day....................................................................................................49  Section 1.8 Other Loan Documents ....................................................................................49  Section 1.9 Divisions ..........................................................................................................49  Section 1.10 Pro Forma Calculations....................................................................................49  Section 1.11 Rates .............................................................................................................4950  ARTICLE 2. THE COMMITMENTS AND CREDIT EXTENSIONS ....................................... 50  Section 2.1 The Loans.........................................................................................................50  Section 2.2 Letters of Credit ...............................................................................................52  Section 2.3 Swing Line Loans ............................................................................................60  Section 2.4 Fees ..................................................................................................................63  Section 2.5 Payments Generally; Administrative Agent’s Clawback ................................64  Section 2.6 Evidence of Debt..............................................................................................66  Section 2.7 Cash Collateral .................................................................................................66  Section 2.8 Interest; Payment Terms ..................................................................................67  Section 2.9 Voluntary Termination or Reduction of Commitments; Prepayments ............69  Section 2.10 Uncommitted Increase in Revolving Credit Commitments .............................70  Section 2.11 Cash Collateral Blocked Accounts ..................................................................72  Section 2.12 Collection of Accounts ....................................................................................73  Section 2.13 Appointment of Borrower Representative .......................................................73  Section 2.14 Joint and Several Liability ...............................................................................74  ARTICLE 3. TAXES, YIELD PROTECTION AND INDEMNITY........................................... 75  Section 3.1 Increased Costs ................................................................................................75  Section 3.2 Illegality ...........................................................................................................76  Section 3.3 Alternate Rate of InterestChanged Circumstances; Benchmark  Replacement .....................................................................................................77  Section 3.4 Taxes ............................................................................................................7980  Section 3.5 Compensation for Losses .................................................................................84  Section 3.6 Mitigation of Obligations; Replacement of Lenders ...................................8485  Section 3.7 Survival ........................................................................................................8586  





 






   ii  ARTICLE 4. CONDITIONS PRECEDENT ............................................................................ 8586  Section 4.1 Initial Extension of Credit ............................................................................8586  Section 4.2 All Extensions of Credit...............................................................................8990  ARTICLE 5. REPRESENTATIONS AND WARRANTIES ................................................... 9091  Section 5.1 Entity Existence ...........................................................................................9091  Section 5.2 Financial Statements; Etc .............................................................................9091  Section 5.3 Action; No Breach ...........................................................................................91  Section 5.4 Operation of Business ..................................................................................9192  Section 5.5 Litigation and Judgments .............................................................................9192  Section 5.6 Rights in Properties; Liens ...........................................................................9192  Section 5.7 Enforceability ...............................................................................................9293  Section 5.8 Approvals .....................................................................................................9293  Section 5.9 Taxes ............................................................................................................9293  Section 5.10 Use of Proceeds; Margin Securities .................................................................93  Section 5.11 ERISA ..........................................................................................................9394  Section 5.12 Disclosure ....................................................................................................9394  Section 5.13 Subsidiaries ......................................................................................................94  Section 5.14 Agreements ..................................................................................................9495  Section 5.15 Compliance with Laws ................................................................................9495  Section 5.16 Inventory ......................................................................................................9495  Section 5.17 Regulated Entities ........................................................................................9495  Section 5.18 Environmental Matters.................................................................................9495  Section 5.19 Intellectual Property .....................................................................................9596  Section 5.20 Anti-Corruption Laws; Sanctions; Etc .............................................................96  Section 5.21 Patriot Act ....................................................................................................9697  Section 5.22 Insurance ......................................................................................................9697  Section 5.23 Solvency .......................................................................................................9697  Section 5.24 Security Documents .........................................................................................97  Section 5.25 Labor Matters ...................................................................................................97  Section 5.26 Material Agreements ....................................................................................9798  Section 5.27 Additional Representations of Guarantors ...................................................9798  Section 5.28 Qualified ECP Guarantor .............................................................................9798  Section 5.29 Plan Assets; Prohibited Transactions ...........................................................9798  ARTICLE 6. AFFIRMATIVE COVENANTS......................................................................... 9798  Section 6.1 Reporting Requirements ..............................................................................9798  Section 6.2 Maintenance of Existence; Conduct of Business ...........................................102  Section 6.3 Maintenance of Properties .......................................................................102103  Section 6.4 Taxes and Claims .....................................................................................102103  Section 6.5 Insurance ..................................................................................................102103  Section 6.6 Inspection Rights; Third-Party Field Examinations; Third-Party  Appraisals ......................................................................................................103  Section 6.7 Keeping Books and Records ....................................................................104105  





 






   iii  Section 6.8 Compliance with Laws ............................................................................104105  Section 6.9 Compliance with Agreements ..................................................................104105  Section 6.10 Further Assurances...................................................................................104105  Section 6.11 ERISA ......................................................................................................104105  Section 6.12 Depository Relationship; Control Agreements; Blocked Accounts ........104105  Section 6.13 Additional Loan Parties ...........................................................................105106  Section 6.14 Sanctions; Anti-Corruption Laws ............................................................106107  Section 6.15 Inventory; Collateral Access Agreements ...............................................106107  Section 6.16 Post-Closing Obligations .........................................................................106107  ARTICLE 7. NEGATIVE COVENANTS ........................................................................... 107108  Section 7.1 Debt ..........................................................................................................107108  Section 7.2 Limitation on Liens ..................................................................................108109  Section 7.3 Mergers, Etc .............................................................................................109110  Section 7.4 Restricted Payments .................................................................................109110  Section 7.5 Loans and Investments .............................................................................110111  Section 7.6 Limitation on Issuance of Equity .............................................................111112  Section 7.7 Transactions With Affiliates ....................................................................111112  Section 7.8 Disposition of Assets ...............................................................................111112  Section 7.9 Sale and Leaseback ..................................................................................112113  Section 7.10 Prepayment of Debt .................................................................................112113  Section 7.11 Nature of Business ...................................................................................112113  Section 7.12 Environmental Protection ........................................................................112113  Section 7.13 Accounting ...............................................................................................112113  Section 7.14 Burdensome Agreements .........................................................................112113  Section 7.15 Subsidiaries ..............................................................................................113114  Section 7.16 Amendments of Certain Documents ........................................................113114  Section 7.17 Hedge Agreements ...................................................................................113114  Section 7.18 Anti-Corruption Laws; Sanctions; Anti-Terrorism Law..........................113114  ARTICLE 8. FINANCIAL COVENANTS .......................................................................... 113114  Section 8.1 Leverage Ratio .........................................................................................114115  Section 8.2 Fixed Charge Coverage Ratio ..................................................................114115  ARTICLE 9. DEFAULT ...................................................................................................... 114115  Section 9.1 Events of Default .....................................................................................114115  Section 9.2 Remedies Upon Default ...........................................................................116117  Section 9.3 Application of Funds................................................................................117118  Section 9.4 Performance by Administrative Agent ....................................................118119  ARTICLE 10. AGENCY ...................................................................................................... 118119  Section 10.1 Appointment and Authority .....................................................................118119  Section 10.2 Rights as a Lender ....................................................................................119120  Section 10.3 Exculpatory Provisions ............................................................................119120  





 






   iv  Section 10.4 Reliance by Administrative Agent ...........................................................120121  Section 10.5 Delegation of Duties ................................................................................121122  Section 10.6 Resignation or Removal of Administrative Agent...................................121122  Section 10.7 Non-Reliance on Administrative Agent and Other Lenders ....................123124  Section 10.8 Administrative Agent May File Proofs of Claim .....................................123124  Section 10.9 Collateral and Guaranty Matters ..............................................................124125  Section 10.10 Bank Product Agreements .......................................................................125126  Section 10.11 Certain ERISA Matters ............................................................................125126  Section 10.12 Acknowledgement with Respect to Erroneous Payments. ......................126128  ARTICLE 11. MISCELLANEOUS ..................................................................................... 128129  Section 11.1 Expenses ..................................................................................................128129  Section 11.2 INDEMNIFICATION..............................................................................129130  Section 11.3 Limitation of Liability..............................................................................130131  Section 11.4 No Duty ....................................................................................................130131  Section 11.5 Lenders Not Fiduciary .............................................................................130132  Section 11.6 Equitable Relief .......................................................................................131132  Section 11.7 No Waiver; Cumulative Remedies ..........................................................131132  Section 11.8 Successors and Assigns............................................................................131133  Section 11.9 Survival ....................................................................................................136137  Section 11.10 Amendment ..............................................................................................136137  Section 11.11 Notices .....................................................................................................138139  Section 11.12 Governing Law; Venue; Service of Process ............................................139141  Section 11.13 Counterparts .............................................................................................140142  Section 11.14 Severability ..............................................................................................140142  Section 11.15 Headings ..................................................................................................140142  Section 11.16 Construction .............................................................................................141142  Section 11.17 Independence of Covenants .....................................................................141142  Section 11.18 WAIVER OF JURY TRIAL ....................................................................141142  Section 11.19 Additional Interest Provision ...................................................................141143  Section 11.20 USA Patriot Act Notice ...........................................................................142144  Section 11.21 Defaulting Lenders...................................................................................143144  Section 11.22 Sharing of Payments by Lenders .............................................................145147  Section 11.23 Payments Set Aside..................................................................................146147  Section 11.24 Setoff ........................................................................................................146148  Section 11.25 Confidentiality .........................................................................................147148  Section 11.26 Electronic Execution of Assignments and Certain Other Documents .....148150  Section 11.27 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions................................................................................................148150  Section 11.28 Keepwell ..................................................................................................149151  Section 11.29 NOTICE OF FINAL AGREEMENT ......................................................149151  Section 11.30 Acknowledgement Regarding Any Supported QFCs ..............................149151  ARTICLE 12. GUARANTY ................................................................................................ 150152  Section 12.1 Guaranty ...................................................................................................150152  





 






   v  Section 12.2 Payment....................................................................................................150152  Section 12.3 Agreements and Waivers .........................................................................151152  Section 12.4 Liability ....................................................................................................153154  Section 12.5 Subordination ...........................................................................................153154  Section 12.6 Subrogation ..............................................................................................153155  Section 12.7 Other Indebtedness or Obligations of Guarantors ...................................154155  Section 12.8 Costs and Expenses ..................................................................................154156  Section 12.9 Exercising Rights, Etc ..............................................................................154156  Section 12.10 Benefit; Binding Effect ............................................................................154156  Section 12.11 Multiple Guarantors .................................................................................154156  Section 12.12 Additional Guarantors ..............................................................................155156  Section 12.13 Reinstatement ...........................................................................................155157  Section 12.14 Maximum Liability ..................................................................................155157         





 






   vi  INDEX TO SCHEDULES      Schedule Description of Schedule Section     2.1 Commitments and Applicable Percentages 2.1 2.11 Deposit Accounts; Blocked Accounts 2.11 5.5 Litigation and Judgments 5.5 5.6(b) Owned Real Property 5.6 5.6(c) Leased Real Property (Lessee) 5.6 5.9 Taxes 5.9 5.13 Subsidiaries 5.13 5.26 Material Agreements 5.26 7.1 Existing Debt 7.1 7.2 Existing Liens 7.2 7.5 Existing Investments 7.5 11.11 Notices 11.11     INDEX TO EXHIBITS     Exhibit Description of Exhibit Section    A Assignment and Assumption 1.1 B Borrowing Base Report 1.1 C Compliance Certificate 1.1 D Borrowing Request 1.1 E Note 1.1 F Swing Line Loan Request 1.1 G Tax Forms 3.4(g) H Joinder Agreement 1.1      





 






  CREDIT AGREEMENT – Page 1    CREDIT AGREEMENT  This CREDIT AGREEMENT dated as of May 11, 2021 (as the same may be amended,  restated, supplemented or otherwise modified from time to time, this “Agreement”), is among  NATURAL GAS SERVICES GROUP, INC., a Colorado corporation (“Holdings”; and together  with any Domestic Subsidiary of Holdings that becomes a party hereto as a “Borrower” pursuant  to Section 6.13, including their permitted successors and assigns, individually, a “Borrower” and  collectively, “Borrowers”), each of the other Loan Parties from time to time party hereto, the  Lenders from time to time party hereto, and TEXAS CAPITAL BANK, NATIONAL  ASSOCIATION, a national banking associationa state bank, as Administrative Agent, Swing  Line Lender and L/C Issuer.  RECITALS  The Borrowers have requested that Lenders extend credit to Borrowers as described in this  Agreement.  Lenders are willing to make such credit available to Borrowers upon and subject to  the provisions, terms and conditions hereinafter set forth.  NOW THEREFORE, in consideration of the premises and the mutual covenants herein  contained, the parties hereto agree as follows:  ARTICLE 1.    DEFINITIONS  Section 1.1 Definitions.  As used in this Agreement, all exhibits, appendices and  schedules hereto and in any note, certificate, report or other Loan Document made or delivered  pursuant to this Agreement, the following terms will have the meanings given such terms in this  Article 1 or in the provision, section or recital referred to below:  “Account” means an account, as defined in the UCC.  “Account Agings” has the meaning set forth in Section 6.1(m).  “Additional Guarantor” has the meaning set forth in Section 12.12.  “Adjusted Eurodollar Rate” means, with respect to any Loan for any Interest Period or  day, as applicable, an interest rate per annum equal to the Eurodollar Rate for such Interest Period  or day multiplied by the Statutory Reserve Rate; provided, however, if the Eurodollar Rate shall  be less than zero, such rate shall be deemed zero for purposes of this Agreement.  “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal  to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if  Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR  shall be deemed to be the Floor.  “Administrative Agent” means Texas Capital Bank, National Association, in its capacity  as administrative agent under any of the Loan Documents, until the appointment of a successor  





 






  CREDIT AGREEMENT – Page 2    administrative agent pursuant to the terms of this Agreement and, thereafter, shall mean such  successor administrative agent.  “Administrative Questionnaire” means an Administrative Questionnaire in a form  supplied by or reasonably acceptable to Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affiliate” means, as to any Person, any other Person (a) that directly or indirectly, through  one or more intermediaries, controls or is controlled by, or is under common control with, such  Person; (b) that directly or indirectly beneficially owns or holds 10% or more of any class of voting  stock of such Person; or (c) 10% or more of the voting stock of which is directly or indirectly  beneficially owned or held by such Person.  The term “control” means the possession, directly or  indirectly, of the power to direct or cause direction of the management or policies of a Person,  whether through the ownership of voting securities, by contract, or otherwise; provided, however,  in no event shall any Lender be deemed an Affiliate of Holdings, any Borrower or any of their  respective Subsidiaries or Affiliates.  “Affiliated Debt” has the meaning set forth in Section 12.5.  “Agent Parties” means, collectively, Administrative Agent or any of its Related Parties.  “Agreement” has the meaning set forth in the introductory paragraph hereto, and includes  all schedules, exhibits and appendices attached or otherwise identified therewith.  “Annualized EBITDA” means, for any date of determination, the EBITDA of Holdings  and its Subsidiaries on a consolidated basis (in accordance with GAAP) for the fiscal quarter period  then ending multiplied by four (4).  “Anti-Corruption Laws” means all state or federal Laws, rules, and regulations applicable  to the Loan Parties or any of their Affiliates from time to time concerning or relating to bribery or  corruption, including the FCPA and the Bank Secrecy Act, and other similar anti-corruption  legislation in other jurisdictions.  “Anti-Terrorism Laws” has the meaning set forth in Section 5.21.  “Applicable Margin” means the applicable percentages per annum set forth below, based  upon the Leverage Ratio, as set forth in the most recent Compliance Certificate received by  Administrative Agent for each fiscal quarter from time to time pursuant to Section 6.1(d):  Pricing  Level Leverage Ratio  Base Rate  Loans  Eurodollar  Rate Term  SOFR Loans  and Letter  of Credit Fee  Commitment  Fee  1 < 1.00:1.00 0.250% 1.250% 0.250%  





 






  CREDIT AGREEMENT – Page 3    2 ≥ 1.00:1.00 but <  2.00:1.00  0.500% 1.500% 0.250%  3 > 2.00:1.00 0.750% 1.750% 0.250%    Any increase or decrease in the Applicable Margin resulting from a change in the Leverage  Ratio shall become effective as of the first day immediately following the date a Compliance  Certificate is delivered for each fiscal quarter from time to time pursuant to Section 6.1(d);  provided that if such Compliance Certificate is not delivered within five (5) days after the date  when due in accordance with such Section, then upon the request of the Required Lenders, Pricing  Level 3 shall apply as of the first day after the date on which such Compliance Certificate was  required to have been delivered and shall remain in effect until the date on which such Compliance  Certificate is delivered.  The Applicable Margin from the Closing Date through the date such  Compliance Certificate is delivered pursuant to Section 6.1(d) in respect of the second full fiscal  quarter of Holdings ending after the Closing Date shall be determined based upon Pricing Level  1.  If, as a result of any restatement of or other adjustment to the financial statements of  Holdings or for any other reason, Holdings, Borrowers or the Required Lenders determine that (a)  the Leverage Ratio as calculated by Holdings as of any applicable date was inaccurate and (b) a  proper calculation of the Leverage Ratio would have resulted in higher pricing for such period,  Borrowers shall immediately and retroactively be obligated to pay to Administrative Agent for the  account of the applicable Lenders, L/C Issuer or Swing Line Lender, as the case may be, promptly  on demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an  order for relief with respect to any Loan Party under the Bankruptcy Code of the United States,  automatically and without further action by Administrative Agent, any Lender, L/C Issuer or  Swing Line Lender), an amount equal to the excess of the amount of interest and fees that should  have been paid for such period over the amount of interest and fees actually paid for such period.   This paragraph shall not limit the rights of Administrative Agent, any Lender, L/C Issuer or Swing  Line Lender, as the case may be, including the rights available under Article 2 or under Article 9.   Each Borrower’s obligations under this paragraph shall survive the termination of the  Commitments and the repayment of all other Obligations hereunder.  “Applicable Percentage” means, with respect to any Lender at any time, the percentage  (carried out to the ninth decimal place) of such Lender’s Commitment at such time divided by the  aggregate Commitments of all Lenders; provided that if the Commitments have been terminated  pursuant to the terms hereof, then the Applicable Percentage of each Lender shall be determined  based upon the Applicable Percentage of such Lender immediately prior to such termination and  after giving effect to any subsequent assignments made pursuant to the terms hereof.  “Applicable Rate” means (a) in the case of a Base Rate Loan, the Base Rate plus the  Applicable Margin; and (b) in the case of a Eurodollar Rate Term SOFR Loan, the Adjusted  Eurodollar Rate Term SOFR plus the Applicable Margin.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.  





 






  CREDIT AGREEMENT – Page 4    “Arranger” means Texas Capital Bank in its capacity as sole lead arranger and sole book  runner.  “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an Eligible Assignee (with the consent of any party whose consent is required by  Section 11.8), and accepted by Administrative Agent, in substantially the form of Exhibit A or  any other form approved by Administrative Agent.  “Authorized Party” has the meaning set forth in Section 11.11(d)(iii).  “Availability” means, as of any date, the difference between (a) an amount equal to the  Line Cap in effect on such date less (b) the total Revolving Credit Exposure of the Lenders on such  date.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest  calculated with reference to such Benchmark, as applicable, that is or may be used for determining  the length of an Interest Period pursuant to this Agreement as of such date and not including, for  the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of  “Interest Period” pursuant to Section 3.3(e).  “Availability Reserves” means, as of any date of determination, such amounts as  Administrative Agent may from time to time establish and revise in its Permitted Discretion: (a) to  reflect events, conditions, contingencies or risks which, as determined by Administrative Agent,  do or may affect either (i) the Collateral or any other Property which is security for the Obligations,  (ii) the assets, business or prospects of the Loan Parties, (iii) the security interests and other rights  of any Secured Party in the Collateral (including the enforceability, perfection and priority  thereof), (b) to reflect Administrative Agent’s belief that any collateral report or financial  information furnished by or on behalf of the Loan Parties to Administrative Agent is or may have  been incomplete, inaccurate or misleading in any material respect, (c) in respect of Bank Products,  Rent Reserves and Hedge Agreements, and (d) in respect of any state of facts which  Administrative Agent determines in its Permitted Discretion constitutes a Default or an Event of  Default or may, with notice or passage of time or both, constitute a Default or an Event of Default.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest  calculated with reference to such Benchmark, as applicable, that is or may be used for determining  the length of an Interest Period pursuant to this Agreement as of such date and not including, for  the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of  “Interest Period” pursuant to Section 3.3(b)(iv).  “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 Affected Financial  Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing Law for such EEA Member Country from time to time which is described  





 






  CREDIT AGREEMENT – Page 5    in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the  United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation  or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Bank Product Agreements” means those certain agreements entered into from time to  time between any Loan Party or any of its Subsidiaries and a Bank Product Provider in connection  with any of the Bank Products, including without limitation, Hedge Agreements.  “Bank Product Obligations” means all obligations, liabilities, contingent reimbursement  obligations, fees, and expenses owing by any Loan Party or any of its Subsidiaries to any Bank  Product Provider pursuant to or evidenced by the Bank Product Agreements and irrespective of  whether for the payment of money, whether direct or indirect, absolute or contingent, due or to  become due, now existing or hereafter arising, and including all such amounts that any Loan Party  or such Subsidiary is obligated to reimburse to any Bank Product Provider as a result of such Bank  Product Provider purchasing participations or executing indemnities or reimbursement obligations  with respect to the Bank Products provided to any Loan Party or such Subsidiaries pursuant to the  Bank Product Agreements.  For the avoidance of doubt, the Bank Product Obligations arising  under any Hedge Agreement shall be determined by the Hedge Termination Value thereof.  “Bank Product Provider” means any (a) Person that is a party to a Bank Product  Agreement with or provides Bank Products to any Loan Party or any of its Subsidiaries that entered  into such Bank Product Agreement or provided such Bank Product before or while such Person  was a Lender or an Affiliate of a Lender, whether or not such Person at any time ceases to be a  Lender or an Affiliate of a Lender, as the case may be, or (b) assignee of any Bank Product  Agreement or Bank Product (by novation or otherwise) from any Person described in clause (a)  above so long as such assignee is a Lender or an Affiliate of a Lender.  “Bank Products” means any service provided to, facility extended to, or transaction  entered into with, any Loan Party by any Bank Product Provider consisting of (a) deposit accounts,  (b) cash management services, including treasury, depository, return items, overdraft, controlled  disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate  depository network, automatic clearing house transfer (including the Automated Clearing House  processing of electronic funds transfers through the direct Federal Reserve Fedline system) and  other cash management arrangements maintained with any Bank Product Provider, (c) debit cards,  stored value cards, and credit cards (including commercial credit cards (including so-called  “procurement cards” or “P-cards”)) and debit card and credit card processing services or (d) Hedge  Agreements.  “Base Rate” means, for any day, a rate of interest per annum equal to the highest of (a) the  Prime Rate for such day; (b) the sum of the Federal Funds Rate for such day plus one half of one  percent (0.5%); and (c)  the Adjusted Eurodollar Rate Term SOFR for such day plus one percent  (1.00%); provided, however, if the Base Rate as determined pursuant to the foregoing shall be less  than 1.00%, such rate shall be deemed 1.00% for purposes of this Agreement.  Any change in the  Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR  





 






  CREDIT AGREEMENT – Page 6    shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Rate or  Adjusted Term SOFR, respectively.  “Base Rate Borrowing” means, as to any Borrowing, the Base Rate Loans comprising such  Borrowing.  “Base Rate Loan” means a Loan bearing interest based on the Base Rate.  “Base Rate Term SOFR Determination Day” has the meaning set forth in the definition  of “Term SOFR”.  “Benchmark” means, initially, USD LIBORthe Term SOFR Reference Rate; provided that  if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related  Benchmark Replacement Date have has occurred with respect to USD LIBOR the Term SOFR  Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable  Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior  benchmark rate pursuant to Section 3.3(b)(i).  “Benchmark Rate Borrowing” means, as to any Borrowing, the Benchmark Rate Loans  comprising such Borrowing.  “Benchmark Rate Loan” means a Loan bearing interest based on the then existing  Benchmark (initially, Adjusted Term SOFR).   “Benchmark Replacement” means, for any Available Tenor with respect to any  Benchmark Transition Event, the first alternative set forth in the order below that can be  determined by the Administrative Agent for the applicable Benchmark Replacement Date :  (a) the sum of: (i) Term SOFR and (ii) the related Benchmark Replacement  Adjustment;(b)the sum of: (ii) Daily Simple SOFR and (ii) the related Benchmark Replacement  Adjustment;  (b)  BSBY; or  (c) the sum of: (i) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower Representative as the replacement for the then-current  Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection  or recommendation of a replacement benchmark rate or the mechanism for determining such a rate  by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for  determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar- denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement  Adjustment;.  provided that, in the case of clause (a), such Unadjusted Benchmark Replacement is  displayed on a screen or other information service that publishes such rate from time to time as  selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement  as determined pursuant to clauses If the Benchmark Replacement as determined pursuant to clause  





 






  CREDIT AGREEMENT – Page 7    (a), (b) or (c) above would be less than the Floor, the Benchmark Replacement will be deemed to  be the Floor for the purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, (a) with respect to Daily Simple SOFR,  0.10%, and (b) with respect to any other replacement of the then-current Benchmark with an  Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for  any setting of such Unadjusted Benchmark Replacement  :(a) for purposes of clauses (a) and (b) of the definition of “Benchmark Replacement,”  the first alternative set forth in the order below that can be determined by the Administrative Agent:  (i), the spread adjustment, or method for calculating or determining such spread  adjustment, (which may be a positive or negative value or zero) as of the Reference Time such  Benchmark Replacement is first set for such Interest Period that has been selected   or recommended by the Relevant Governmental Body for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable  Corresponding Tenor;(ii) the spread adjustment (which may be a positive or negative  value or zero) as of the Reference Time such Benchmark Replacement is first set for such  Interest Period that would apply to the fallback rate for a derivative transaction referencing  the ISDA Definitions to be effective upon an index cessation event with respect to such  Benchmark for the applicable Corresponding Tenor; and  (b)for purposes of clause (c) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the  Borrower Representative for the applicable Corresponding Tenor giving due consideration to (i)  any selection or recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted  Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark  Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining  a spread adjustment, or method for calculating or determining such spread adjustment, for the  replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S.  dollar-denominated syndicated credit facilities; at such time.  provided that, in the case of clause (a) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as  selected by the Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the  definitions of “Adjusted Eurodollar Rate, “Base Rate”, “Business Day”, “Eurodollar Rate”,  “Interest Period,” timing and frequency of determining rates and making payments of interest,  timing of borrowing requests or prepayment, conversion or continuation notices, length of  lookback periods, the applicability of breakage provisions, and other technical, administrative or  operational matters) that the Administrative Agent decides may be appropriate to reflect the  adoption and implementation of such Benchmark Replacement and to permit the administration  thereof by the Administrative Agent in a manner substantially consistent with market practice (or,  if the Administrative Agent decides that adoption of any portion of such market practice is not  administratively feasible or if the Administrative Agent determines that no market practice for the  





 






  CREDIT AGREEMENT – Page 8    administration of such Benchmark Replacement exists, in such other manner of administration as  the Administrative Agent decides is reasonably necessary in connection with the administration of  this Agreement and the other Loan Documents).  “Benchmark Replacement Date” means the earliest to occur of the following events with  respect to the then-current Benchmark:  (a) in the case of clauses clause (a) or (b) of the definition of “Benchmark Transition  Event”, the later of (i) the date of the public statement or publication of information referenced  therein and (ii) the date on which the administrator of such Benchmark (or the published  component used in the calculation thereof) permanently or indefinitely ceases to provide all  Available Tenors of such Benchmark (or such component thereof); or  (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the date  of the public statement or publication of information referenced therein; or,” the first date on which  all Available Tenors of such Benchmark (or the published component used in the calculation  thereof) have been determined and announced by the regulatory supervisor for the administrator  of such Benchmark (or such component thereof) to be non-representative; provided that such non- representativeness will be determined by reference to the most recent statement or publication  referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date;  provided that if the then-current Benchmark is BSBY, “Benchmark Replacement Date” shall mean  the BSBY Replacement Date.  (c) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date  notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative  Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such  Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in  Election from Lenders comprising the Required Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs  on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for  such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clauses clause (a) or (b) with respect to any Benchmark upon the occurrence of the  applicable event or events set forth therein with respect to all then-current Available Tenors of  such Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the then-current Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator  of such Benchmark (or the published component used in the calculation thereof) announcing that  such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or  such component thereof), permanently or indefinitely, provided that, at the time of such statement  or publication, there is no successor administrator that will continue to provide any Available  Tenor of such Benchmark (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof),  the Board of Governors, the Federal Reserve Bank of New York, an insolvency official with  jurisdiction over the administrator for such Benchmark (or such component), a resolution authority  with jurisdiction over the administrator for such Benchmark (or such component) or a court or an  





 






  CREDIT AGREEMENT – Page 9    entity with similar insolvency or resolution authority over the administrator for such Benchmark  (or such component), which states that the administrator of such Benchmark (or such component)  has ceased or will cease to provide all Available Tenors of such Benchmark (or such component  thereof) permanently or indefinitely, provided that, at the time of such statement or publication,  there is no successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof); or  (c) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are no  longer not, or as of a specified future date will not be, representative.; or  (d) if the then current Benchmark is BSBY, the occurrence of a BSBY Transition  Event.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above  has occurred with respect to each then-current Available Tenor of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (a) beginning at the time  that a Benchmark Replacement Date pursuant to clauses (a) or (b) of the definition thereof has  occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark  for all purposes hereunder and under any Loan Document in accordance with Section 3.3 (b) and  (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for  all purposes hereunder and under any Loan Document in accordance with Section 3.3(b).  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation.    “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to  which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of  the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the  Code) the assets of any such “employee benefit plan” or “plan”.  “BHC Act Affiliate” means, as to any Person, an “affiliate” (as such term is defined under,  and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.  “Blocked Accounts” has the meaning set forth in Section 2.11.  “Bloomberg” means Bloomberg Index Services Limited.  “Board of Governors” means the Board of Governors of the Federal Reserve System of  the United States of America.  “Borrower” or “Borrowers” has the meaning set forth in the introductory paragraph hereto.  “Borrower Representative” has the meaning set forth in Section 2.13(a).  





 






  CREDIT AGREEMENT – Page 10    “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the  context may require.  “Borrowing Base” means, as of any date, an amount equal to the sum of, without  duplication:  (a) ninety percent (90%) of the Borrowers’ Eligible Accounts owing by  Investment Grade Account Debtors, plus  (b) eighty-five percent (85%) of the Borrowers’ Eligible Accounts owing by  Non-Investment Grade Account Debtors, plus   (c) 50% of the Borrowers’ Eligible Inventory (other than Eligible Inventory  constituting Eligible Compressors), valued at the lower of cost (calculated on a first-in,  first out basis) or market value at such time; provided that the maximum amount of  Borrowers’ Eligible Inventory (other than Eligible Inventory constituting Eligible  Compressors and after giving effect to the advance rate set forth herein) which may be  included as part of this component of the Borrowing Base shall not exceed $2,000,000,  plus   (d) the lesser of (i) 95% of the net book value of the Borrowers’ Eligible  Compressors (other than Eligible Compressors constituting a Eligible New Compressor  Fleet), valued at the lower of cost or market value with depreciation not to exceed 25 years,  at such time and (ii) 80% of the Net Orderly Liquidation Value Percentage of the net book  value of the Borrowers’ Eligible Compressors (other than Eligible Compressors  constituting a Eligible New Compressor Fleet), valued at the lower of cost or market value  with depreciation not to exceed 25 years, at such time, plus   (e) 80% of the value at cost (calculated on a first-in, first-out basis and  excluding any costs for capitalized interest or other non-cash capitalized costs) of the  Borrowers’ Eligible New Compressor Fleet, minus   (f) any Availability Reserves.  Notwithstanding anything to contrary in the foregoing, the Borrowing Base shall be deemed to be  $0 for the period commencing on the Closing Date until such date the first Borrowing Base Report  is delivered to the Administrative Agent pursuant Section 6.16(b) calculating the Borrowing Base  pursuant to the foregoing definition.   “Borrowing Base Report” means, as of any date of preparation, a certificate, substantially  the form of Exhibit B, or in any other form agreed to in writing by Borrowers and Administrative  Agent, prepared by and certified by a Responsible Officer of the Borrower Representative.  “Borrowing Request” means a writing, substantially in the form of Exhibit D, properly  completed and signed by the Borrower Representative, requesting a Revolving Credit Borrowing.  “BSBY” means the Bloomberg Short-Term Bank Yield Index rate.  





 






  CREDIT AGREEMENT – Page 11    “BSBY Rate” means:  (a)  for any Interest Period with respect to a BSBY Rate Loan, the rate per  annum equal to the BSBY Screen Rate two Business Days prior to the commencement of  such Interest Period with a term equivalent to such Interest Period; provided that if the rate  is not published on such determination date then BSBY Rate means the BSBY Screen Rate  on the first Business Day immediately prior thereto; and  (b) for any interest calculation with respect to a Base Rate Loan on any date,  the rate per annum equal to the BSBY Screen Rate with a term of one month commencing  that day;  provided that if the BSBY Rate determined in accordance with the foregoing provisions of this  definition would otherwise be less than the Floor, the BSBY Rate shall be deemed to be the Floor  for purposes of this Agreement.  “BSBY Rate Loan” means each Loan bearing interest based on the BSBY Rate.  “BSBY Replacement Date” has the meaning set forth in Section 3.3(b)(vi).  “BSBY Screen Rate” means the Bloomberg Short-Term Bank Yield Index rate  administered by Bloomberg and published on the applicable Reuters screen page (or such other  commercially available source providing such quotations as may be designated by the  Administrative Agent from time to time).  “BSBY Transition Event” means the occurrence of any of the events described in Section  3.3(b)(vi)(A) or (B).  “Business Day” means (a) for all purposes, a weekday, Monday through Friday, except a  legal holiday or a day on which banking institutions in Dallas, Texas are authorized or required by  Law to be closed, and (b) for purposes of the calculation of the Eurodollar Rate, a day that satisfies  the requirements of clause (a) and that is a day on which commercial banks in the City of London,  England are open for business and dealing in offshore Dollars.  Unless otherwise provided, the  term “days” when used herein means calendar days.  “Capital Expenditure” means, with respect to any Person, any expenditure by such Person  for (a) an asset which will be used in a year or years subsequent to the year in which the expenditure  is made and which asset is properly classified in relevant financial statements of such Person as  equipment, real Property, a fixed asset or a similar type of capitalized asset in accordance with  GAAP or (b) an asset relating to or acquired in connection with an acquired business, and any and  all acquisition costs related to clause (a) or (b) above.  “Capitalized Lease Obligation” means, with respect to any Person, the amount of Debt  under a lease of Property by such Person that would be shown as a liability on a balance sheet of  such Person prepared for financial reporting purposes in accordance with GAAP.  “Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent,  for the benefit of one or more of L/C Issuer or Lenders, as collateral for L/C Obligations or  





 






  CREDIT AGREEMENT – Page 12    obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit account  balances or, if Administrative Agent and L/C Issuer shall agree in their sole discretion, other credit  support, in each case pursuant to documentation in form and substance satisfactory to  Administrative Agent and L/C Issuer. “Cash Collateral” shall have a meaning correlative to the  foregoing and shall include the proceeds of such cash collateral and other credit support.  “Cash Interest Expense” means, for any Person for any period, total interest expense in  respect of all outstanding Debt actually paid or that is payable by such Person during such period,  including, without limitation, all commissions, discounts, and other fees and charges with respect  to letters of credit and all net costs under Hedge Agreements in respect of interest rates to the extent  such costs are allocable to such period, but excluding interest expense not payable in cash, all as  determined in accordance with GAAP.   “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change  in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule, guideline or directive (whether or not having the force of law) by any Governmental  Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall  Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives  promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States or foreign regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, implemented, adopted or issued.  “Change of Control” means an event or series of events by which:  (a)  any “person” or “group” (as such terms are used in Sections 13(d) or 14(d)  of the Exchange Act), shall at any time have become the “beneficial owner” (as defined in Rules  13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of greater than  35% of the  aggregate ordinary voting power represented by the issued and outstanding Equity Interests in  Holdings;  (b) the occupation of a majority of the seats (other than vacant seats) on the  board of directors of Holdings by Persons who were neither (i) directors of Holdings on the Closing  Date, (ii) nominated, appointed or approved for consideration by shareholders for election by at  least 51% of the then directors of Holdings or (iii) appointed by directors so nominated, appointed  or approved; or  (c) Holdings shall cease to own, free and clear of all Liens or other  encumbrances (other than Permitted Liens), directly or indirectly, at least 100% of the outstanding  direct or indirect Equity Interests of the Borrowers and any other Loan Party on a fully diluted  basis.   “Closing Date” means the first date all the conditions precedent in Section 4.1 are satisfied  or waived in accordance with Section 11.10.  





 






  CREDIT AGREEMENT – Page 13    “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any  successor statute, together with the regulations promulgated thereunder.  “Collateral” means substantially all of the Property of the Loan Parties and their   Subsidiaries as described in the Security Documents, including 100% of the Equity Interest in any  Loan Party (other than Holdings), together with any other Property and collateral described in the  Security Documents, including, among other things, any Property which may now or hereafter  secure the Obligations or any part thereof (but which in no event will include any Excluded Asset).    “Collateral Access Agreement” means a landlord waiver, mortgagee waiver, bailee letter  or similar acknowledgment of any lessor, warehouseman, processor or other Person in possession  of any Collateral or on whose Property any Collateral is located, in form and substance reasonably  satisfactory to Administrative Agent.  “Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit  Loans to Borrowers pursuant to Section 2.1(a), (b) purchase participations in L/C Obligations, and  (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time  outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1 under  the caption “Commitment” or opposite such caption in the Assignment and Assumption pursuant  to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from  time to time in accordance with this Agreement.  The aggregate Commitment of the Lenders as of  the First Amendment Effective Date is $30,000,000.  “Commodity Account Control Agreement” has the meaning assigned to such term in the  Security Agreement.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),  as amended from time to time, and any successor statute.  “Communications” means, collectively, any notice, demand, communication, information,  document or other material provided by or on behalf of the Loan Parties pursuant to any Loan  Document or the transactions contemplated therein which is distributed to Administrative Agent,  any Lender, L/C Issuer or Swing Line Lender by means of electronic communications pursuant to  Section 11.11(d), including through the Platform.  “Compliance Certificate” means a certificate, substantially in the form of Exhibit C, or in  any other form agreed to by Holdings and Administrative Agent, prepared by and certified by a  Responsible Officer of Holdings.  “Compressor Components” means each of the major serial numbered components of a  Compressor Package, including an engine, compressor, compressor cylinders, natural gas and  engine jacket cooler, control devices, safety shutdown panel and ancillary piping mounted on a  metal skid.  “Compressor Packages” means natural gas compression equipment generally consisting  of an engineered package of Compressor Components.  





 






  CREDIT AGREEMENT – Page 14    “Compressor Units” means Inventory of the Borrowers consisting of completed  Compressor Packages.  “Conforming Changes” means, with respect to the use, administration of or any  conventions associated with Term SOFR or any Benchmark Replacement, as applicable, any  technical, administrative or operational changes (including changes to the definitions of “Base  Rate”, “Business Day”, “Interest Period” (or any similar or analogous definition), “U.S.  Government Securities Business Day”, or the timing and frequency of determining rates and  making payments of interest, timing of borrowing requests or prepayment, conversion or  continuation notices, the applicability and length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Administrative  Agent decides may be appropriate to reflect the adoption and implementation of any such rate or  to permit the use and administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any  portion of such market practice is not administratively feasible or if the Administrative Agent  determines that no market practice for the administration of any such rate exists, in such other  manner of administration as the Administrative Agent decides is reasonably necessary in  connection with the administration of this Agreement and the other Loan Documents).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Constituent Documents” means (a) in the case of a corporation, its articles or certificate  of incorporation and bylaws; (b) in the case of a general partnership, its partnership agreement;  (c) in the case of a limited partnership, its certificate of limited partnership or certificate of  formation, as applicable, and partnership agreement; (d) in the case of a trust, its trust agreement;  (e) in the case of a joint venture, its joint venture agreement; (f) in the case of a limited liability  company, its articles of organization, operating agreement, regulations and/or other organizational  and governance documents and agreements; and (g) in the case of any other entity, its  organizational and governance documents and agreements.  “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 correlative meanings  thereto.  “Control Agreements” means, collectively, the Commodity Account Control Agreements,  the Deposit Account Control Agreements and the Securities Account Control Agreements, in each  case, as the same may be amended, restated, supplemented or otherwise modified from time to  time.  “Corresponding Tenor” means, with respect to any Available Tenor, as applicable, either  a tenor (including overnight) or an interest payment period having approximately the same length  (disregarding business day adjustment) as such Available Tenor.  





 






  CREDIT AGREEMENT – Page 15    “Covered Entity” means any of the following: (a) a “covered entity” as that term is defined  in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is  defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that  term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning set forth in Section 11.30.  “Credit Extension” means each of (a) a Borrowing and (b) an L/C Credit Extension.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which  will include a lookback) being established by the Administrative Agent in accordance with the  conventions for this rate selected or recommended by the Relevant Governmental Body for  determining “Daily Simple SOFR” for syndicated business loans; provided, that if the  Administrative Agent decides that any such convention is not administratively feasible for the  Administrative Agent, then the Administrative Agent may establish another convention in its  reasonable discretion.  “Daily Simple SOFR Loan” means a Loan bearing interest based on Daily Simple SOFR.  “Debt” means, of any Person as of any date of determination (without duplication):  (a) all  obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by  bonds, notes, debentures, or other similar instruments; (c) all obligations of such Person to pay the  deferred purchase price of Property or services, except trade accounts payable of such Person  arising in the ordinary course of business that are not past due by more than ninety (90) days;  (d) all Capitalized Lease Obligations of such Person; (e) all Debt or other obligations of others  Guaranteed by such Person; (f) all obligations secured by a Lien existing on Property owned by  such Person, whether or not the obligations secured thereby have been assumed by such Person or  are non-recourse to the credit of such Person; (g) any other obligation for borrowed money or other  financial accommodations which in accordance with GAAP would be shown as a liability on the  balance sheet of such Person; (h) any repurchase obligation or liability of a Person with respect to  Accounts, chattel paper or notes receivable sold by such Person; (i) any liability under a sale and  leaseback transaction that is not a Capitalized Lease Obligation; (j) any obligation under any so  called “synthetic leases;” (k) any obligation arising with respect to any other transaction that is the  functional equivalent of borrowing but which does not constitute a liability on the balance sheet  of a Person; (l) all payment and reimbursement obligations of such Person (whether contingent or  otherwise) in respect of letters of credit, bankers’ acceptances, surety or other bonds and similar  instruments; (m) all liabilities of such Person in respect of unfunded vested benefits under any  Plan; (n) all Hedge Obligations of such Person, valued at the Hedge Termination Value thereof;  and (o) all obligations of such Person in respect of Disqualified Equity Interests.  For all purposes, the Debt of any Person shall include the Debt of any partnership or joint  venture (other than a joint venture that is itself a corporation or limited liability company) in which  such Person is a general partner or a joint venturer, unless such Debt is expressly made non- recourse to such Person.  “Debt Service” means, for any Person for any period, the sum of all regularly scheduled  principal payments (including without limitation, mandatory and voluntary prepayments of  





 






  CREDIT AGREEMENT – Page 16    principal payments made in respect of the Subordinated Debt) and all Cash Interest Expense that  are paid or payable during such period in respect of all Debt of such Person (other than scheduled  payments of principal on Debt which pay such Debt in full, but only to the extent such final  payment is greater than the scheduled principal payment immediately preceding such final  payment).  “Debtor Relief Laws” means Title 11 of the United States Code, as now or hereafter in  effect, or any other applicable Law, domestic or foreign, as now or hereafter in effect, relating to  bankruptcy, insolvency, liquidation, receivership, reorganization, assignment for the benefit of  creditors, moratorium, arrangement or composition, extension or adjustment of debts, or similar  Laws affecting the rights of creditors.  “Default” means an event or condition which constitutes an Event of Default or which  upon notice or lapse of time or both would become an Event of Default.  “Default Interest Rate” means (a) when used with respect to Obligations other than Letter  of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin, if any,  applicable to a Base Rate Loan plus (iii) two percent (2%) per annum; provided, however, that  with respect to a Eurodollar Benchmark Rate Loan, the Default Interest Rate shall be an interest  rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan  plus two percent (2%) per annum, and (b) when used with respect to Letter of Credit Fees, a rate  equal to the Applicable Margin plus two percent (2%) per annum; provided, however, in no event  shall the Default Interest Rate exceed the Maximum Rate.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means, subject to Section 11.21(b), any Lender that (a) has failed to  (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were  required to be funded hereunder, or (ii) pay to Administrative Agent, the L/C Issuer, the Swing  Line Lender or any other Lender any other amount required to be paid by it hereunder (including  in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business  Days of the date when due, (b) has notified the Borrower Representative, Administrative Agent,  L/C Issuer or Swing Line Lender in writing that it does not intend to comply with its funding  obligations hereunder, or has made a public statement to that effect, (c) has failed, within three (3)  Business Days after written request by Administrative Agent or the Borrower Representative, to  confirm in writing to Administrative Agent and the Borrower Representative that it will comply  with its prospective funding obligations hereunder (provided that such Lender shall cease to be a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by  Administrative Agent and the Borrower Representative), or (d) has, or has a direct or indirect  parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,  (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the  benefit of creditors or similar Person charged with reorganization or liquidation of its business or  assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory  authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a  Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any  Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental  





 






  CREDIT AGREEMENT – Page 17    Authority so long as such ownership interest does not result in or provide such Lender with  immunity from the jurisdiction of courts within the United States or from the enforcement of  judgments or writs of attachment on its assets or permit such Lender (or such Governmental  Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such  Lender.  Any determination by Administrative Agent that a Lender is a Defaulting Lender under  any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest  error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 11.21(b))  upon delivery of written notice of such determination to the Borrower Representative and each  Lender.  “Deposit Account Control Agreement” has the meaning assigned to such term in the  Security Agreement.  “Disposition” means any sale, lease, sub-lease, license, transfer, assignment, conveyance,  release, loss or other disposition, or entry into any contract the performance of which would result  in any of the foregoing, of any interest in Property, or of any interest in a Subsidiary that owns  Property, in any transaction or event or series of transactions or events, and “Dispose” has the  correlative meaning thereto.  “Disqualified Equity Interest” means any Equity Interest that, by its terms (or the terms of  any security or other Equity Interests into which it is convertible or for which it is exchangeable),  or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other  than solely for Equity Interests that are not Disqualified Equity Interests), pursuant to a sinking  fund obligation or otherwise (except as a result of a change of control or asset sale so long as any  rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be  subject to the prior repayment in full of the Loans and all other Obligations that are accrued and  payable and the termination of the Commitments), (b) is redeemable at the option of the holder  thereof, in whole or in part, (c) provides for scheduled payments of dividends in cash, or (d) is or  becomes convertible into or exchangeable for Debt or any other Equity Interests that would  constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one days after  the Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit  of employees of any Loan Party or any of its Subsidiaries or by any such plan to such employees,  such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be  required to be repurchased by any Loan Party or its Subsidiaries in order to satisfy applicable  statutory or regulatory obligations or as a result of such employee’s termination, death or disability.  “Document” shall have the meaning set forth in Article 9 of the UCC.  “Dollars” and “$” mean lawful money of the United States of America.  “Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any  political subdivision of the United States.  “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the  occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower  Representative to the Administrative Agent to notify) each of the other parties hereto that at least  





 






  CREDIT AGREEMENT – Page 18    five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain  (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term  SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit  facilities are identified in such notice and are publicly available for review), and  (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback  from USD LIBOR and the provision by the Administrative Agent of written notice of such election  to the Lenders.  “EBITDA” means, for any period, the total amount of the following for Holdings and its  Subsidiaries on a consolidated basis, each calculated for such period: (a) Net Income, plus (b) the  sum (in each case, without duplication) of the following to the extent deducted in the calculation  of Net Income: (i) interest expense; (ii) Taxes based on income or profits; (iii) depreciation; (iv)  amortization; (v)  losses that are unusual and infrequently occurring determined in accordance with  GAAP; (vi) the amount of any non-cash equity-based compensation charges or expenses approved  by the board of directors of Holdings; (vii) other non-recurring expenses reducing such Net Income  which do not represent a cash item in such period or any future period; minus (c) the sum (in each  case, without duplication) of the following to the extent included in the calculation of Net Income:  (i) income tax credits; (ii) gains that are unusual and infrequently occurring determined in  accordance with GAAP; and (iii) all non-recurring, non-cash items increasing Net Income.  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this  definition and is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.  “Electronic Record” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Electronic Signature” has the meaning assigned to that term in, and shall be interpreted  in accordance with, 15 U.S.C. 7006.  “Eligible Accounts” means, as of any applicable period of determination thereof, all  Accounts of Borrowers (net of service charges, interest and finance fees) created in the ordinary  course of business that Administrative Agent determines in its Permitted Discretion is eligible as  the basis for the extension of Credit Extensions.  Without limiting the foregoing, no Account shall  be an Eligible Account if:  





 






  CREDIT AGREEMENT – Page 19    (a) it does not comply in all material respects with all applicable Laws, rules,  and regulations, including, without limitation, usury Laws, the Federal Truth in Lending  Act, and Regulation Z of the Board of Governors;  (b) it has been outstanding for more than ninety (90) days past the original date  of invoice or sixty (60) days after the original date payment is due;  (c) (i) the goods giving rise to it have not been delivered to the account debtor  and do not constitute a final sale or (ii) the services giving rise to it have not been performed  for the account debtor;  (d) it represents a progress billing or retainage, or relates to services for which  a performance, surety or completion bond or similar assurance has been issued;  (e) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, bill- and-hold, sale-or-return, sale-on-approval, consignment, or other repurchase or return  basis, or from a sale for personal, family or household purposes;  (f) it is not subject to a duly perfected, first priority Lien in favor of  Administrative Agent;  (g) which is subject to any Lien other than (i) a Lien in favor of Administrative  Agent, or (ii) a Permitted Lien which does not have priority over the Lien in favor of  Administrative Agent;  (h) with respect to which  (i) any representation contained herein or in the other  Loan Documents with respect to such Account is not true in any material respect or (ii) any  covenant contained herein or in the other Loan Documents with respect to such Account  has been breached and the resultant Event of Default has not been waived;  (i) it is owing by a creditor or supplier of any Borrower or any Subsidiary  thereof, or is otherwise subject to a potential offset, counterclaim, dispute, deduction,  discount, recoupment, reserve, defense, chargeback, credit or allowance that has been  asserted in writing;  (j) the account debtor is insolvent or the subject of any bankruptcy or  insolvency proceeding, or has made an assignment for the benefit of creditors, suspended  normal business operations, dissolved, liquidated, terminated its existence, ceased to pay  its debts as they become due, or suffered a receiver or trustee to be appointed for any of its  assets or affairs;  (k) it is evidenced by chattel paper or an instrument (other than any chattel  paper which, upon the written request of the Administrative Agent, the original copy of  such chattel paper has been delivered to the Administrative Agent within five (5) days after  such written request);  (l) a default exists under the Account by any party thereto;  





 






  CREDIT AGREEMENT – Page 20    (m) it is owed by an Affiliate, employee, officer or director of any Borrower or  any of their Subsidiaries;  (n) it is owed in currency other than Dollars by the account debtor;  (o) the account debtor is organized or has its principal offices or assets outside  the United States or Canada;  (p) the Account is owed by an individual or a Sanctioned Person;  (q) if more than twenty-five percent (25%) of the aggregate balances then  outstanding on all Accounts owed by such account debtor and its Affiliates are unpaid for  more than (i) sixty (60) days after the original date payment is due or (ii) ninety (90) days  past the dates of their original invoices;  (r) it is owing by a Governmental Authority, unless the account debtor is the  United States of America or any department, agency, or instrumentality thereof and the  Account has been assigned to Administrative Agent in compliance with the Federal  Assignment of Claims Act of 1940;  (s) it includes a billing for interest, fees or late charges;  (t) when aggregated with all other Accounts owed (i) by an Investment Grade  Account Debtor and its Affiliates (in each case, other than Occidental) to which such  Account relates exceeds thirty-five percent (35%) of all Eligible Accounts owed by all of  Borrowers’ account debtors, (ii) by a Non-Investment Grade Account Debtor and its  Affiliates (in each case, other than Occidental)  to which such Account relates exceeds  twenty-five percent (25%) of all Eligible Accounts owed by all of Borrowers’ account  debtors or (iii) by Occidental Petroleum Corporation or its Subsidiaries (collectively,  “Occidental”) to which such Account relates exceeds thirty-five percent (35%) of all  Eligible Accounts owed by all of Borrowers’ account debtors (provided, however, that, in  each case under the foregoing clauses (i) through (iii), if such aggregate exceeds such  percentage of all Eligible Accounts, only such excess shall be ineligible); or  (u) Administrative Agent otherwise reasonably determines it be ineligible.  The amount of the Eligible Accounts owed by an account debtor to any Borrower shall be  reduced by the amount of all “contra accounts” and other obligations owed, whether by such  Borrower or any other Borrower or Subsidiary, to such account debtor.  Administrative Agent shall  have the right to create and adjust eligibility standards and related services from time to time in its  Permitted Discretion.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 11.8(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under  Section 11.8(b)(iii)).  “Eligible Compressors” means the Eligible Inventory owned by the Borrowers consisting  of Compressor Units.  





 






  CREDIT AGREEMENT – Page 21    “Eligible Inventory” means, as of any applicable period of determination thereof, all  Inventory of the Borrowers that Administrative Agent determines in its Permitted Discretion is  eligible as the basis for the extension of Credit Extensions.  Without limiting the foregoing,  Eligible Inventory shall not include any Inventory:  (a) which is not subject to a first priority perfected Lien in favor of  Administrative Agent;  (b) which is subject to any Lien other than (i) a Lien in favor of Administrative  Agent or (ii) a Permitted Lien which does not have priority over the Lien in favor of  Administrative Agent;  (c) which is, in Administrative Agent’s opinion based on its Permitted  Discretion, slow moving, obsolete, unmerchantable, defective, used, unfit for sale, not  salable at prices approximating at least the cost of such Inventory in the ordinary course of  business or unacceptable due to age, type, category and/or quantity;  (d) with respect to which (i) any representation contained herein or in the other  Loan Documents with respect to such Inventory is not true in any material respect, (ii) any  covenant contained herein or in the other Loan Documents with respect to such Inventory  has been breached and the resultant Event of Default has not been waived or (iii) does not  conform in all material respects to all standards imposed by any Governmental Authority;  (e) in which any Person other than the Borrowers shall (i) have any direct or  indirect ownership, interest or title or (ii) be indicated on any purchase order or invoice  with respect to such Inventory as having or purporting to have an interest therein;  (f) which (i) constitutes work in process or raw materials; provided that  Compressor Components are not raw materials, or (ii) constitutes packaging and shipping  material, manufacturing supplies, samples, prototypes, displays or display items, bill and  hold or ship in place goods, goods that are returned or marked for return, repossessed  goods, defective or damaged goods, goods held on consignment, or goods which are not of  a type (x) held for sale, lease or rental or (y) to be used to provide compression services, in  each case in the ordinary course of business;  (g) which is not located in the United States or is in transit with a common  carrier from vendors and suppliers;  (h) which is located in any location leased by any Borrower unless (i) the lessor  has delivered to Administrative Agent a Collateral Access Agreement or (ii) a Rent Reserve  for rent, charges and other amounts due or to become due with respect to such facility has  been established by Administrative Agent in its Permitted Discretion; provided, that  notwithstanding the foregoing, it is agreed and understood that no Rent Reserve will be  implemented during the first sixty (60) days after the Closing Date with respect to any  leased location not covered by a Collateral Access Agreement;   (i) which is located in any third party warehouse or is in the possession of a  bailee (other than a third party processor) and is not evidenced by a Document, unless (i)  





 






  CREDIT AGREEMENT – Page 22    such warehouseman or bailee has delivered to Administrative Agent a Collateral Access  Agreement and such other documentation as Administrative Agent may reasonably require  or (ii) an appropriate Rent Reserve for rent, charges and other amounts due or to become  due with respect to such location has been established by Administrative Agent in its  Permitted Discretion; provided, that notwithstanding the foregoing, it is agreed and  understood that no Rent Reserve will be implemented during the first sixty (60) days after  the Closing Date with respect to any third party warehouse or bailee and not covered by a  Collateral Access Agreement;   (j) which is being processed offsite at a third party location or outside  processor, or is in transit to or from such third party location or outside processor, unless  (i) such processor or other third party has delivered to Administrative Agent a Collateral  Access Agreement and such other documentation as Administrative Agent may reasonably  require or (ii) an appropriate Rent Reserve has been established by Administrative Agent  in its Permitted Discretion; provided, that notwithstanding the foregoing, it is agreed and  understood that no Rent Reserve will be implemented during the first sixty (60) days after  the Closing Date with respect to any of the same not covered by a Collateral Access  Agreement;  (k) which is located at any customer site or location or is in the possession of a  customer of any Borrower, unless such customer has delivered to Administrative Agent a  Collateral Access Agreement or such other documentation as Administrative Agent may  reasonably require, including, without limitation, a gas compression agreement with terms  acceptable to Administrative Agent;  (l) which is a discontinued product or component thereof;  (m) which is the subject of a consignment by any Borrower or any Subsidiary  hereof as consignor;  (n) which is perishable;  (o) which contains or bears any intellectual property rights licensed to any  Borrower unless Administrative Agent is satisfied that it may sell or otherwise dispose of  such Inventory without (i) infringing the rights of such licensor, (ii) violating any contract  with such licensor, or (iii) incurring any liability with respect to payment of royalties other  than royalties incurred pursuant to sale of such Inventory under the current licensing  agreement;  (p) which is not reflected in a current perpetual inventory report of the  Borrowers (unless such Inventory is reflected in a report to Administrative Agent as “in  transit” Inventory);   (q) for which reclamation rights have been asserted by the seller;   (r) which has been acquired from a Sanctioned Person; or   (s) Administrative Agent otherwise reasonably determines it be ineligible.  





 






  CREDIT AGREEMENT – Page 23    In the event that Inventory which was previously Eligible Inventory ceases to be Eligible  Inventory hereunder, the Borrowers shall notify Administrative Agent thereof on and at the time  of submission to Administrative Agent of the next Borrowing Base Report.  “Eligible New Compressor Fleet” means Eligible Compressors, whether held or deployed  by the Borrowers in the ordinary course of business, and which are not included in the most recent  appraisal, which is prepared on a basis satisfactory to Administrative Agent, and ordered and  received by Administrative Agent pursuant to Section 6.6(c).  “Environmental Laws” means any and all federal, state, and local Laws, regulations,  judicial decisions, orders, decrees, plans, rules, permits, licenses, and other governmental  restrictions and requirements pertaining to health, safety, or the environment, including, without  limitation, the Comprehensive Environmental Response, Compensation and Liability Act as  amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §9601 et  seq., the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., the Federal Water  Pollution Control Act, as amended by the Clean Water Act, 33 U.S.C. §1251 et seq., the Clean Air  Act, 42 U.S.C. §7401 et seq., the Emergency Planning and Community Right-to-Know Act, 42  U.S.C. §11001 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq., the  Toxic Substances Control Act, 15 U.S.C. §2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C.  §2701 et seq., the Safe Drinking Water Act, 42 U.S.C. §300f et seq., the Occupational Safety and  Health Act, 29 U.S.C. §651 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7  U.S.C. §136 et seq., the Endangered Species Act, U.S.C. §1531 et seq., the National Environmental  Policy Act, 42 U.S.C. §4321 et seq., the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.  §407, all similar state statutes and local ordinances, and all regulations promulgated under any of  those statutes, and all administrative and judicial actions respecting such legislation, all as  amended from time to time.  “Environmental Liabilities” means, as to any Person, all liabilities, obligations,  responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages,  treble damages, costs, and expenses (including, without limitation, all reasonable fees,  disbursements and expenses of counsel, expert and consulting fees and costs of investigation and  feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or  demand, by any Person, whether based in contract, tort, implied or express warranty, strict liability,  criminal or civil statute, including any Environmental Law, permit, order or agreement with any  Governmental Authority or other Person, arising from environmental, health or safety conditions  or the Release or threatened Release of a Hazardous Material into the environment, resulting from  the past, present, or future operations of such Person or its Affiliates.  “Equipment” has the meaning assigned to such term in the Security Agreement.   “Equity Interests” means, as to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the  purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit  interests in) such Person, all of the securities convertible into or exchangeable for shares of capital  stock of (or other ownership or profit interests in) such Person or warrants, rights or options for  the purchase or acquisition from such Person of such shares (or such other interests), and all of the  other ownership or profit interests in such Person (including partnership, member or trust interests  





 






  CREDIT AGREEMENT – Page 24    therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or  other interests are outstanding on any date of determination.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, together with the regulations promulgated thereunder.  “ERISA Affiliate” means any corporation or trade or business which is a member of the  same controlled group of corporations (within the meaning of Section 414(b) of the Code) as a  Loan Party, is under common control (within the meaning of Section 414(c) of the Code) with a  Loan Party, or is otherwise considered a single employer with a Loan Party pursuant to  Sections 414(m) or (o) of the Code, for purposes of the provisions relating to Section 412 of the  Code or Section 303 of ERISA.  “ERISA Event” means (a) a Reportable Event with respect to a Plan, (b) a withdrawal by  any Loan Party or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a  plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a  cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA,  (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a  Multiemployer Plan, (d) the filing of a notice of intent to terminate a Plan, the treatment of a Plan  or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or  the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan, (e) the  occurrence of an event or condition which might reasonably be expected to constitute grounds  under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,  any Plan or Multiemployer Plan, (f) the imposition of any liability to the PBGC under Title IV of  ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,  upon any Loan Party or any ERISA Affiliate, (g) the failure of any Loan Party or ERISA Affiliate  to meet any funding obligations with respect to any Plan or Multiemployer Plan, or (h) a Plan  becomes subject to the at-risk requirements in Section 303 of ERISA or Section 430 of the Code  or is in endangered or critical status under Section 305 of ERISA or Section 432 of the Code.  “Erroneous Payment” has the meaning set forth in Section 10.12(a).  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.  “Eurodollar Rate” means, subject to Section 3.3:  (a) with respect to any Eurodollar Rate Loan for any Interest Period, the per  annum rate appearing on the ICE Benchmark Administration LIBOR Rates Page (or on any  successor or substitute page or service providing quotations of interest rates applicable to Dollar  deposits in the London interbank market comparable to those currently provided on such page, as  determined by Administrative Agent from time to time) at approximately 11:00 a.m., London time,  on the related Eurodollar Rate Determination Date, as the rate for Dollar deposits with a maturity  comparable to such Interest Period, and if such rate does not appear on such screen or service, or  such screen or service shall cease to be available, then the Eurodollar Rate shall be the offered rate  (as determined by Administrative Agent in its sole discretion; provided that no Benchmark  Transition Event shall have occurred at such time) on such other screen or service that displays an  





 






  CREDIT AGREEMENT – Page 25    average interest settlement rate for deposits in Dollars (for delivery on the first day of such Interest  Period) by such other authoritative source (as is selected by Administrative Agent in its sole  discretion; provided that no Benchmark Transition Event shall have occurred at such time)  to  major banks in the London interbank eurodollar market for a term equivalent to such Interest  Period as of 11:00 a.m. on the relevant Eurodollar Rate Determination Date; and  (b) with respect to any interest calculation with respect to a Base Rate Loan on  any date, the per annum rate appearing on the ICE Benchmark Administration LIBOR Rates Page  (or on any successor or substitute page or service providing quotations of interest rates applicable  to Dollar deposits in the London interbank market comparable to those currently provided on such  page, as determined by Administrative Agent from time to time) at approximately 11:00 a.m.,  London time, on the related Eurodollar Rate Determination Date for a term of one (1) month  commencing on the date of calculation, and if such rate does not appear on such screen or service,  or such screen or service shall cease to be available, then the Eurodollar Rate shall be the offered  rate (as determined by Administrative Agent in its sole discretion; provided that no Benchmark  Transition Event shall have occurred at such time) on such other screen or service that displays an  average interest settlement rate for deposits in Dollars (for delivery on such date of calculation) by  such other authoritative source (as is selected by Administrative Agent in its sole discretion;  provided that no Benchmark Transition Event shall have occurred at such time)  to major banks in  the London interbank eurodollar market for a term of one (1) month as of 11:00 a.m. on the relevant  Eurodollar Rate Determination Date.  Notwithstanding the foregoing, unless otherwise specified in any amendment to this Agreement  entered into in accordance with Section 3.3, in the event that a Benchmark Replacement with  respect to Eurodollar Rate is implemented then all references herein to Eurodollar Rate shall be  deemed references to such Benchmark Replacement.  “Eurodollar Rate Borrowing” means, as to any Borrowing, the Eurodollar Rate Loans  comprising such Borrowing.  “Eurodollar Rate Determination Date” means a day that is two (2) Business Days prior  to the beginning of the relevant Interest Period or prior to the applicable date, as applicable.  “Eurodollar Rate Loan” means each Loan bearing interest based on the Adjusted  Eurodollar Rate where the Eurodollar Rate is determined pursuant to clause (a) of the definition  thereof.  “Event of Default” has the meaning set forth in Section 9.1.  “Excess Availability Activation Conditions” means, as of any date of determination, one  or more of the following conditions as the context requires: (a) Availability is greater than the  greater of (i) $17,500,000 and (ii) 80% of the Line Cap then in effect or (b) the Borrowing Base  then in effect is greater than (i) the aggregate amount of the Commitments of the Lenders then in  effect multiplied by (ii) two.  “Excess Availability Period” means any period commencing on the first date on which  both (a) no Event of Default has occurred and is continuing, and (b) either of the Excess  Availability Activation Conditions have been satisfied, and continuing until the date upon which  





 






  CREDIT AGREEMENT – Page 26    either (i) an Event of Default has occurred or (ii) both of the Excess Availability Activation  Conditions are not satisfied for a ten (10) consecutive day period.  “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.  “Excluded Accounts” means any commodity account, deposit account or securities  account (a) established solely as a payroll account and other zero-balance disbursement account,  (b) held in a fiduciary capacity and established in connection with employee benefit plans in the  ordinary course of business or pursuant to applicable legal requirements, or (c) with a balance in  each such account individually not exceeding $100,000 at any time and the aggregate balance of  all such accounts not exceeding $250,000.   “Excluded Assets” means, collectively:  (a) assets as to which Administrative Agent and Loan Parties agree in writing  that the cost of creating or perfecting a pledge of, or a security interest in, such assets is  excessive in relation to the value of the security to be afforded thereby;  (b) any rights or interest in any lease, contract, license or license agreement  covering personal Property or real Property and/or such assets subject thereto, so long as  under the terms of such lease, contract, license or license agreement, the grant of a security  interest or Lien therein for the benefit of the Secured Parties (i) is prohibited, (ii) would  give any other party to such lease, contract, license or license agreement, instrument or  indenture the right to terminate its obligations thereunder, or (iii) is permitted only with the  consent of another party (including, without limitation, any Governmental Authority) (or  would render such lease, contract, license or license agreement cancelled, invalid or  unenforceable) and such prohibition has not been or is not waived or the consent of the  other party to such lease, contract, license or license agreement has not been or is not  otherwise obtained; provided that, this exclusion shall in no way be construed to apply if  any such prohibition is unenforceable under the UCC or any other Law (including any  Debtor Relief Law) or so as to limit, impair or otherwise affect the unconditional  continuing security interests in and Liens for the benefit of the Secured Parties upon any  rights or interests in or to monies due or to become due under any such lease, contract,  license or license agreement (including any receivables) and provided further that, with  respect to any lease, contract, license or license agreement entered into after the Closing  Date, the Loan Parties shall use commercially reasonable efforts to permit Liens for the  benefit of the Secured Parties on each such lease, contract, license or license agreement  and avoid prohibitions of the types described in clauses (i) through (iii) above;  (c) any such account described in clause (b) of the definition of “Excluded  Accounts”;  (d) any application for registration of a trademark filed in the United States  Patent and Trademark Office on an intent to use basis to the extent that the grant of a  security interest in any such trademark application would adversely affect the validity or  enforceability or result in cancellation or voiding of such trademark application, provided,  





 






  CREDIT AGREEMENT – Page 27    however, that such trademark applications shall no longer be considered Excluded Assets  upon the filing of a Statement of Use or an Amendment to Allege Use has been filed and  accepted in the United States Patent and Trademark Office;   (e) any assets that are subject to a Lien permitted under Section 7.2(j) if the  contract or other agreement in which the Lien is granted (or the documentation providing  for the Debt secured thereby) prohibits the creation of any other Lien on such assets;  provided that immediately upon the ineffectiveness, lapse or termination of any such Lien  permitted under Section 7.2(j), such assets shall no longer be considered Excluded Assets  pursuant to this clause (e) and the Collateral shall include all such rights and interest in  such assets as if such Lien permitted under Section 7.2(j) had never been in effect (unless  such asset would constitute as an Excluded Asset under any other clause herein);   (f) any real Property owned by any Loan Party and each of its Subsidiaries on  the Closing Date as set forth on Schedule 5.6(b) hereto (such Property, the “Excluded Real  Property”); and  (g) so long as a Domestic Subsidiary constitutes as an “Excluded Subsidiary”  under this Agreement, any Equity Interests in the Excluded Subsidiary.   To the extent that such Property constitutes as an “Excluded Asset” due to the failure by  any Loan Party to obtain a consent as described in clause (b) above, such Loan Party shall  use commercially reasonable efforts to obtain such consent and, upon obtaining such  consent, such Property shall cease to constitute as an “Excluded Asset”.  Notwithstanding  anything herein to the contrary, Excluded Assets shall not include any right to receive  proceeds from the sale or other disposition of Excluded Assets, any Proceeds (as defined  in the UCC), products, substitutions or replacements of any Excluded Asset (unless such  rights, Proceeds, products, substitutions or replacements independently constitute  Excluded Assets), all of which shall expressly be Collateral.  “Excluded Real Property” has the meaning set forth in clause (f) of the definition of  “Excluded Assets”.  “Excluded Subsidiary” means, as of the Closing Date, the Rabbi Trust under the Natural  Gas Services Group, Inc. Deferred Compensation Plan; provided that such Person shall only  constitute as an “Excluded Subsidiary” for purposes of this Agreement and the other Loan  Documents so long as (a) such Person complies with the requirements of a “grantor trust” under  the IRS’s Revenue Procedures 92-64 and 92-65 and (b) the principal and income of such Person  shall be subject to the claims of creditors of the Loan Parties under federal and state Law.  “Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation  if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by  such Loan Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or  becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the  Commodity Futures Trading Commission (or the application or official interpretation of any  thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract  participant” as defined in the Commodity Exchange Act (determined after giving effect to any  





 






  CREDIT AGREEMENT – Page 28    “keepwell, support or other agreement” for the benefit of such Loan Party and any and all  guarantees of such Loan Party’s Swap Obligations by any Borrower or any other Loan Party) at  the time the Guarantee of such Loan Party, or a grant by such Loan Party of a Lien, becomes  effective with respect to such Swap Obligation.  If a Swap Obligation arises under a Master  Agreement governing more than one swap, such exclusion shall apply only to the portion of such  Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or becomes  excluded in accordance with the first sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having  its principal office or, in the case of any Lender, its applicable Lending Office located in, the  jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other  Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts  payable to or for the account of such Lender with respect to an applicable interest in a Loan or  Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such  interest in such Loan or Commitment (other than pursuant to an assignment request by any  Borrower under Section 3.6(b)) or (ii) such Lender changes its Lending Office, except in each case  to the extent that, pursuant to Section 3.4, amounts with respect to such Taxes were payable either  to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender  immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure  to comply with Section 3.4(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof and  any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory  legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or  convention among Governmental Authorities and implementing such Sections of the Code.  “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.  “Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if  necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight  federal funds transactions with members of the Federal Reserve System arranged by federal funds  brokers on such day, as published by the Federal Reserve Bank of New York, on the Business Day  next succeeding such day, provided that (a) if the day for which such rate is to be determined is  not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on  the next preceding Business Day as so published on the next succeeding Business Day, and (b) if  such rate is not so published for any day, the Federal Funds Rate for such day shall be the average  rate charged to Administrative Agent on such day on such transactions as determined by  Administrative Agent; provided, however, if the Federal Funds Rate shall be less than zero, such  rate shall be deemed zero for purposes of this Agreement.  





 






  CREDIT AGREEMENT – Page 29    “Fee Letter” means (a) the separate fee letter dated as of May 11, 2021 between Borrower  Representative and Texas Capital Bank and (b) any other engagement letter or fee letter among  Borrower Representative and Administrative Agent, Arranger and/or Texas Capital Bank  concerning fees to be paid by Borrower Representative in connection with this Agreement  including any amendments, restatements, supplements or modifications thereof.  By its execution  of this Agreement, each Lender acknowledges and agrees that Administrative Agent, Arranger  and/or Texas Capital Bank may elect to treat as confidential and not share with Lenders any Fee  Letter executed from time to time in connection with this Agreement.  “Financial Covenants” means the covenants set forth in Sections 8.1 and 8.2.  “First Amendment” means that certain First Amendment to Credit Agreement dated as of  the First Amendment Effective Date, by and among Holdings, the other Borrowers and Loan  Parties party thereto, the Administrative Agent and the Lenders party thereto.  “First Amendment Effective Date” means December 12, 2022.  “Fixed Charge Coverage Ratio” means, for any date of determination, the ratio of (a)  Annualized EBITDA minus Unfinanced Capital Expenditures; provided that, solely for purposes  of calculating the Fixed Charge Coverage Ratio, such Unfinanced Capital Expenditures during  such period, the proceeds of which were used to acquire or construct Compressor Units, shall not  include more than twenty percent (20%) of the total Capital Expenditures made during such period  to (b) Fixed Charges for Holdings and its Subsidiaries for the four (4) fiscal quarter period then  ending.  “Fixed Charges” means, for any Person for any period, the sum of (a) Debt Service for  such period, plus (b) cash income taxes paid during such period, plus (c) the sum of any dividends,  distributions and other Restricted Payments (including any management, advisory or similar fees  paid to any holder of any Equity Interests of a Loan Party or their Affiliates) made during such  period.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of  the Closing Date or any modification, amendment or renewal of this Agreement or otherwise) with  respect to USD LIBOR.  “Floor” means a rate of interest equal to 0%.  “Foreign Lender” means a Lender that is not a U.S. Person.  “Foreign Subsidiaries” means each Subsidiary other than a Domestic Subsidiary.  “Fraudulent Transfer Laws” has the meaning set forth in Section 12.14.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to  L/C Issuer, such Defaulting Lender’s Applicable Percentage of the Outstanding Amount of the  L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation  obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the  terms hereof, and (b) with respect to Swing Line Lender, such Defaulting Lender’s Applicable  





 






  CREDIT AGREEMENT – Page 30    Percentage of the Outstanding Amount of Swing Line Loans other than Swing Line Loans as to  which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in  accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its activities.  “Funded Debt” means, as of any date of determination, the aggregate amount of all Debt  of Holdings and its Subsidiaries, on a consolidated basis in accordance with GAAP, (a) of the type  described in clauses (a), (b), (c), (d), (g), (j), (l) (to the extent such amounts have been drawn or  funded and not reimbursed), or (o), of the definition thereof or (b) of the type described in clauses  (e) or (f) of the definition thereof to the extent in respect of the Debt described in the foregoing  clause (a), in each case, excluding non-cash obligations under ASC 815.  “GAAP” means generally accepted accounting principles, applied on a consistent basis, as  set forth in opinions of the Accounting Principles Board of the American Institute of Certified  Public Accountants and/or in statements of the Financial Accounting Standards Board and/or their  respective successors and which are applicable in the circumstances as of the date in question.   Accounting principles are applied on a “consistent basis” when the accounting principles applied  in a current period are comparable in all material respects to those accounting principles applied  in a preceding period.  “Governmental Authority” means the government of the United States of America or any  other nation, or of any political subdivision thereof, whether state or local, and any agency,  authority, instrumentality, regulatory body, court, central bank, tribal body or other entity  exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions  of or pertaining to government (including any supra-national bodies such as the European Union  or the European Central Bank), and any group or body charged with setting financial accounting  or regulatory capital rules or standards (including without limitation, the Financial Accounting  Standards Board, the Bank for International Settlements or the Basel Committee on Banking  Supervision or any successor or similar authority to any of the foregoing).  “Guarantee” by any Person means any obligation or liability, contingent or otherwise, of  such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person  as well as any obligation or liability, direct or indirect, contingent or otherwise, of such Person  (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or  other obligation or liability (whether arising by virtue of partnership arrangements, by agreement  to keep-well, to purchase assets, goods, securities or services, to operate Property, to take-or-pay,  or to maintain net worth or working capital or other financial statement conditions or otherwise)  or (b) entered into for the purpose of indemnifying or assuring in any other manner the obligee of  such Debt or other obligation or liability of the payment thereof or to protect the obligee against  loss in respect thereof (in whole or in part); provided that the term Guarantee shall not include  endorsements for collection or deposit in the ordinary course of business.  The terms “Guarantee”  and “Guaranteed” used as a verb have a corresponding meaning.  





 






  CREDIT AGREEMENT – Page 31    “Guarantors” means, collectively, (a) each of the Borrowers with respect to the  Obligations under any Bank Product Agreement to the extent that each such Borrower is not the  primary obligor with respect thereto, (b) NGSG Properties, LLC, a Colorado limited liability  company, and any other wholly-owned Domestic Subsidiary of Holdings (other than any Borrower  and the Excluded Subsidiary) and (c) each Person who from time to time Guarantees all or any  part of the Obligations under the Loan Documents, including any Person who becomes a party to  this Agreement pursuant to a Joinder Agreement.  “Guaranty” means, collectively, the guaranty made by the Loan Parties party to this  Agreement pursuant to Article 12 and each other written guaranty executed by one or more of the  other Guarantors in favor of Administrative Agent, for the benefit of Secured Parties, in form and  substance satisfactory to Administrative Agent.  “Hazardous Material” means any substance, product, waste, pollutant, material, chemical,  contaminant, constituent, or other material which is or becomes listed, regulated, or addressed  under any Environmental Law, including, without limitation, any petroleum and petroleum  byproducts, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel  (or mixture of natural gas and such synthetic gas), polychlorinated biphenyls, lead and lead-based  paint, radon, radioactive materials, flammables and explosives, and mold.  “Hazardous  SubstancesMaterial” shall include, without limitation, any hazardous or toxic substance, material  or waste or any chemical, element, compound or mixture which is: (i) asbestos and asbestos- containing materials; (ii) designated as a “pollutant” or “toxic pollutant” pursuant to the Federal  Water Pollution Control Act (33 U.S.C. Paragraph 1251 et seq.); (iii) defined as a “solid or  hazardous waste” pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C.  Paragraph 6901 et seq.); (iv) defined as “hazardous substances” pursuant to the Comprehensive  Environmental Response, Compensation and Liability Act (42 U.S.C. Paragraph 9601 et seq.); (v)  listed in the United States Department of Transportation Table (49 CFR 172.101) or by the  Environmental Protection Agency as hazardous substances (40 CFR part 302); (vi) chemicals,  elements, compounds, mixtures, substances, materials or wastes otherwise regulated under any  applicable federal, state or local Environmental Laws; (vii) polychlorinated biphenyls; (ixviii)  “pesticides” as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§  136 et seq.; (xix) “contaminant” as defined in the Safe Drinking Water Act, 42 U.S.C. §§ 300f et  seq.; (xi(x) “extremely hazardous substances” as defined in the Emergency Planning and  Community Right to Know Act, 42 U.S.C. §§ 11001 et seq.; (xiixi) “hazardous materials” as  defined in the Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101 et seq.; (xiiixii)  “hazardous air pollutants” as defined in the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; and (xiv(xiii)  “oil” as defined in the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq.  “Hedge Agreement” means (a) any and all interest rate swap transactions, basis swaps,  credit derivative transactions, forward rate transactions, commodity swaps, commodity options,  forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond  index swaps or options or forward bond or forward bond price or forward bond index transactions,  interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,  collar transactions, currency swap transactions, cross-currency rate swap transactions, currency  options, spot contracts, or any other similar transactions or any combination of any of the foregoing  (including any options to enter into any of the foregoing), whether or not any such transaction is  governed by or subject to any master agreement, (b) any and all transactions of any kind, and the  





 






  CREDIT AGREEMENT – Page 32    related confirmations, which are subject to the terms and conditions of, or governed by, any form  of master agreement published by the International Swaps and Derivatives Association, Inc., any  International Foreign Exchange Master Agreement, or any other master agreement (any such  master agreement, together with any related schedules and annexes, a “Master Agreement”),  (c) any and all Master Agreements and any and all related confirmations and (d) any other  agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47)  of the Commodity Exchange Act.  “Hedge Obligations” means, at any time with respect to any Person, all indebtedness,  liabilities, and obligations of such Person under or in connection with any Hedge Agreement,  whether actual or contingent, due or to become due and existing or arising from time to time.  “Hedge Termination Value” means, in respect of any one or more Hedge Agreements,  after taking into account the effect of any legally enforceable netting agreement relating to such  Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed  out and settlement amounts, early termination amounts or termination value(s) determined in  accordance therewith, such settlement amounts, early termination amounts or termination value(s),  and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the  mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more  commercially reasonable mid-market or other readily available quotations provided by any dealer  which is a party to such Hedge Agreement or any other recognized dealer in such Hedge  Agreements (which may include a Lender or any Affiliate of a Lender).  “Holdings” has the meaning set forth in the introductory paragraph hereto.  “Honor Date” has the meaning set forth in Section 2.2(c)(i).  “Increase Effective Date” has the meaning set forth in Section 2.10(c).  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of Borrowers or any other Loan  Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other  Taxes.  “Information” has the meaning set forth in Section 11.25.  “Intellectual Property” means all copyrights, copyrightable works, patents, patent  applications, trademarks, service marks, trade names, brand names, trade dress, slogans, logos and  internet domain names and uniform resource locators, and the goodwill associated with any of the  foregoing, and other types of intellectual or industrial property rights and foreign equivalent or  counterpart rights and forms of protection of a similar or analogous nature to any of the foregoing  or having similar effect in any jurisdiction throughout the world, and registrations and applications  for registration of any of the foregoing, and all documentation and embodiments of the foregoing,  in whatever form, now owned or hereafter acquired.  “Interest Period” means with respect to any Eurodollar Rate Term SOFR Loan, the period  commencing on the date such Loan becomes a Eurodollar Rate Term SOFR Loan (whether by the  making of a Loan or its continuation or conversion) and ending on the numerically corresponding  





 






  CREDIT AGREEMENT – Page 33    day in the fiscal month that is one (1), two (2), (1),three (3) or six (6) months thereafter, or if  available to each applicable Lender, twelve (12) months thereafter (in each case subject to the  availability of the Eurodollar Rate Term SOFR for such period), as the Borrower Representative  may elect; provided that (a) if any Interest Period would end on a day other than a Business Day,  such Interest Period shall be extended to the next succeeding Business Day unless such next  succeeding Business Day would fall in the next fiscal month, in which case such Interest Period  shall end on the next preceding Business Day and , (b) any Interest Period pertaining to a  Eurodollar Rate Term SOFR Loan that commences on the last Business Day of a fiscal month (or  on a day for which there is no numerically corresponding day in the last fiscal month of such  Interest Period) shall end on the last Business Day of the last fiscal month of such Interest Period  and (c) no tenor that has been removed from this definition pursuant to Section 3.3(b)(iv) and not  thereafter reinstated pursuant to such Section shall be available for specification in any Borrowing  Request or notice of continuation or conversion thereof.  “Inventory” means inventory, as defined in the UCC.  “Investment Grade Account Debtor” means, any account debtor whose securities are rated  BBB- (or then equivalent grade) or higher by S&P or Baa3 (or then equivalent grade) or higher by  Moody’s, or whose credit rating or credit quality has the characteristics of an Investment Grade  Account Debtor as determined by Administrative Agent in its sole discretion.  “IRS” means the Internal Revenue Service or any entity succeeding to all or any of its  functions.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented  from time to time, or any successor definitional booklet for interest rate derivatives published from  time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.  “ISP” means, with respect to any Letter of Credit, the “International Standby Practices  1998” published by the Institute of International Banking Law & Practice, Inc. (or such later  version thereof as may be in effect at the time of issuance).  “Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit  Application, and any other document, agreement and instrument entered into by L/C Issuer and  any Borrower or in favor of L/C Issuer and relating to such Letter of Credit.  “Joinder Agreement” means a Joinder Agreement in the form of Exhibit H hereto.  “L/C Advance” means, with respect to each Lender, such Lender’s funding of its  participation in any L/C Borrowing in accordance with its Applicable Percentage.  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter  of Credit which has not been reimbursed by Borrowers on the date when made or refinanced as a  Revolving Credit Borrowing.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof  or extension of the expiry date thereof, or the increase of the amount thereof.  





 






  CREDIT AGREEMENT – Page 34    “L/C Issuer” means Texas Capital Bank in its capacity as issuer of Letters of Credit  hereunder, or any successor issuer of Letters of Credit hereunder.  “L/C Obligations” means, as of any date of determination, without duplication, the  aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate  of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the  amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall  be determined in accordance with Section 1.4.  For all purposes of this Agreement, if on any date  of determination a Letter of Credit has expired by its terms but any amount may still be drawn  thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed  to be “outstanding” in the amount so remaining available to be drawn.  “Laws” means, collectively, all international, foreign, federal, state, provincial and local  statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial  precedents or authorities, including the interpretation or administration thereof by any  Governmental Authority charged with the enforcement, interpretation or administration thereof,  and all applicable administrative orders, directed duties, requests, licenses, authorizations and  permits of, and agreements with, any Governmental Authority, in each case whether or not having  the force of law.  “Lease” of any Person means all of the right, title and interest of such Person as lessee or  licensee in, to and under a lease or license of land, improvements and/or fixtures.  “Lenders” means, (a) at any time prior to the termination of the Commitments, any Person  that has a Commitment at such time, and (b) at any time after the termination of the Commitments,  any Person that has Revolving Credit Exposure at such time.  Unless the context otherwise  requires, the term “Lenders” includes Swing Line Lender, L/C Issuer and their respective  successors and assigns permitted hereunder.  “Lending Office” means, as to any Lender, the office or offices of such Lender described  as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender  may from time to time notify the Borrower Representative and Administrative Agent.  “Letter of Credit” means any standby letter of credit issued hereunder providing for the  payment of cash upon the honoring of a presentation thereunder.   “Letter of Credit Application” means an application and agreement for the issuance or  amendment of a Letter of Credit in the form from time to time in use by L/C Issuer.  “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the  Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).  “Letter of Credit Fee” has the meaning set forth in Section 2.4(b).  “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $12,500,000 and (b)  the aggregate Commitments of the Lenders then in effect.  The Letter of Credit Sublimit is part of,  and not in addition to, the Commitments.  





 






  CREDIT AGREEMENT – Page 35    “Leverage Ratio” means, as of the last day of each fiscal quarter, the ratio of (i) all Funded  Debt as of such date to (ii) Annualized EBITDA as of such date.  “Lien” means, as to any Property of any Person, (a)  any lien, mortgage, security interest,  tax lien, pledge, charge, hypothecation, collateral assignment, preference, priority, or other  encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale  or title retention agreement), whether arising by contract, operation of law, or otherwise, affecting  such Property and (b) the signing or filing of a financing statement which names the Person as  debtor or the signing of any security agreement or the signing of any document authorizing a  secured party to file any financing statement which names such Person as debtor.  “Line Cap” means, as of any date of determination, the lesser of (a) the aggregate amount  of the Commitments of the Lenders on such date and (b) the Borrowing Base in effect on such  date.  “Loan” means an extension of credit by a Lender to any Borrower under Article 2 in the  form of a Revolving Credit Loan or a Swing Line Loan.  “Loan Documents” means this Agreement, the First Amendment, each Guaranty, the  Security Documents, the Notes, the Issuer Documents, each Fee Letter, and all other promissory  notes, security agreements, deeds of trust, assignments, letters of credit, guaranties, and other  instruments, documents, or agreements executed and delivered pursuant to or in connection with  this Agreement or the Security Documents; provided that the term “Loan Documents” shall not  include any Bank Product Agreement.  “Loan Party” means each Borrower, each Guarantor or any other Person who is or  becomes party to any agreement with any Secured Party that obligates such Person to pay or  perform, or that Guarantees or secures payment or performance of, the Obligations under the Loan  Documents or any part thereof.  For the avoidance of doubt, the Excluded Subsidiary shall not  constitute a “Loan Party” for all purposes under this Agreement and the other Loan Documents.  “Master Agreement” has the meaning set forth in clause (b) of the definition of Hedge  Agreement.   “Material Adverse Effect” means any act, event, condition, or circumstance which could  reasonably be expected to materially and adversely affect (a) the operations, business, Properties,  liabilities (actual or contingent), or condition (financial or otherwise) of the Loan Parties and their  Subsidiaries, taken as a whole; (b) the ability of any Loan Party to perform its obligations under  any Loan Document to which it is a party; (c) the legality, validity, binding effect or enforceability  against any Loan Party of any Loan Document to which it is a party; or (d) the rights, remedies  and benefits available to, or conferred upon, Administrative Agent or any Secured Party under any  Loan Documents.  “Maturity Date” means May 11, 2026, or such earlier date on which the Commitment of  each Lender terminates as provided in this Agreement.    “Maximum Rate” means, at all times, the maximum rate of interest which may be charged,  contracted for, taken, received or reserved by Lenders in accordance with applicable Texas Law  





 






  CREDIT AGREEMENT – Page 36    (or applicable United States federal Law to the extent that such Law permits Lenders to charge,  contract for, receive or reserve a greater amount of interest than under Texas Law).  The Maximum  Rate shall be calculated in a manner that takes into account any and all fees, payments, and other  charges in respect of the Loan Documents that constitute interest under applicable Law.  Each  change in any interest rate provided for herein based upon the Maximum Rate resulting from a  change in the Maximum Rate shall take effect without notice to any Borrower at the time of such  change in the Maximum Rate.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral  consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure  during the time that a Defaulting Lender exists, an amount equal to 103% of the Fronting Exposure  of L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect  to Cash Collateral consisting of cash or deposit account balances provided in accordance with the  provisions of Section 2.7(a)(i), (a)(ii) or (a)(iii), an amount equal to 103% of the Outstanding  Amount of all L/C Obligations, and (c) otherwise, an amount determined by Administrative Agent  and L/C Issuer in their sole discretion.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of  ERISA to which contributions are being made or have been made by, or for which there is an  obligation to make contributions by or there is any liability, contingent or otherwise, with respect  to a Loan Party or any ERISA Affiliate and which is covered by Title IV of ERISA.  “Net Cash Proceeds” means:  (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries  the excess, if any, of (i) the sum of cash and cash equivalents received in connection with  such transaction (including any cash or cash equivalents received by way of deferred  payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and  when so received), over (ii) the sum of (A) the principal amount of any Debt that is secured  by the applicable asset and that is required to be repaid in connection with such transaction   (other than Debt under the Loan Documents), (B) the reasonable out-of-pocket expenses  incurred by such Loan Party or such Subsidiary in connection with such transaction  including legal, accounting, investment banking and other professional fees and (C) taxes  paid or reasonably estimated to be payable within the year such relevant transaction  occurred and the year immediately following the date of such transaction as a result of any  gain recognized in connection therewith; provided that, if (1) reserves established pursuant  to subclause (A) exceeds the actual purchase price adjustment required to be paid in  connection with such transactions, or (2) the amount of any estimated taxes pursuant to  subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect  of such Disposition, in each case, the aggregate amount of such excess shall constitute Net  Cash Proceeds.  (b) with respect to the sale or issuance of any Equity Interests by any Loan Party  or any of its Subsidiaries, or the incurrence or issuance of any Debt by any Loan Party or  any of its Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received  





 






  CREDIT AGREEMENT – Page 37    in connection with such transaction over (ii) the underwriting discounts and commissions,  and other reasonable and customary out-of-pocket expenses, incurred by such Loan Party  or such Subsidiary in connection therewith.  “Net Income” means, for any Person for any period, the net income (or loss) of such Person  and its Subsidiaries on a consolidated basis as determined in accordance with GAAP; provided  that Net Income shall exclude (a) the net income of any Subsidiary of such Person during such  period to the extent that the declaration or payment of dividends or similar distributions by such  Subsidiary of such income is not permitted by operation of the terms of its Constituent Documents  or any agreement, instrument or Law applicable to such Subsidiary during such period, except that  such Person’s equity in any net loss of any such Subsidiary for such period shall be included in  determining Net Income, and (b) any income (or loss) for such period of any other Person if such  other Person is not a Subsidiary, except that Holdings’ equity in the net income of any such Person  for such period shall be included in Net Income up to the aggregate amount of cash actually  distributed by such Person during such period to Holdings or a Subsidiary as a dividend or other  distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is  not precluded from further distributing such amount to Holdings as described in clause (a) of this  proviso).  “Net Orderly Liquidation Value Percentage” means, with respect to Inventory of any  Person, the orderly liquidation value thereof , expressed as a percentage, as determined in a manner  acceptable to the Administrative Agent pursuant to the most recent appraisal (including  compressor fleet appraisal) ordered, received and relied upon by the Administrative Agent  pursuant to Section 6.6(c) and conducted by an appraiser acceptable to the Administrative Agent,  net of all costs of liquidation thereof.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (a) requires the approval of all or all affected Lenders in accordance with the  terms of Section 11.10 and (b) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.  “Non-Investment Grade Account Debtor” means any account debtor which is not an  Investment Grade Account Debtor.  “Notes” means, collectively, each promissory note made by Borrowers in favor of a Lender  evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such  Lender, substantially in the form of Exhibit E.  “Obligations” means all obligations, indebtedness, and liabilities of Borrowers and each  other Loan Party to Administrative Agent, each Lender and each other Secured Party now existing  or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated,  unliquidated, joint, several, or joint and several, arising under or pursuant to this Agreement, any  Bank Product Agreements or the other Loan Documents, and all interest accruing thereon (whether  a claim for post-filing or post-petition interest is allowed in any bankruptcy, insolvency,  reorganization or similar proceeding) and all attorneys’ fees and other expenses incurred in the  





 






  CREDIT AGREEMENT – Page 38    enforcement or collection thereof; provided that, as to any Loan Party, the “Obligations” shall  exclude any Excluded Swap Obligations of such Loan Party.  “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party  to, performed its obligations under, received payments under, received or perfected a security  interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or  sold or assigned an interest in any Loan or Loan Document).  “Other Guaranties” has the meaning set forth in Section 12.11.  “Other Guarantors” has the meaning set forth in Section 12.11.  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 3.6).  “Outstanding Amount” means (a) with respect to the Revolving Credit Loans and the  Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving  effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swing  Line Loans, as the case may be, occurring on such date, and (b) with respect to any L/C Obligations  on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit  Extension occurring on such date and any other changes in the aggregate amount of the L/C  Obligations as of such date, including as a result of any reimbursements by Borrowers of  Unreimbursed Amounts.  “Participant” means any Person (other than (a) a natural person, (b) a holding company,  investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person,  (c) a Defaulting Lender, or (d) Holdings, any of Holdings’ Affiliates, any Subsidiaries of Holdings  or any other Loan Party) to which a participation is sold by any Lender in all or a portion of such  Lender’s rights and/or obligations under this Agreement (including all or a portion of its  Commitment and/or the Loans owing to it).  “Participant Register” means a register in the United States on which each Lender that  sells a participation enters the name and address of each Participant and the principal amounts (and  stated interest) of each Participant’s interest in the Loans or other obligations under the Loan  Documents.  “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate  Tools to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law  October 26, 2001).  





 






  CREDIT AGREEMENT – Page 39    “Payment Conditions” means, with respect to any Restricted Payments made pursuant to  Section 7.4(d) or any Permitted Acquisition, (a) no Default or Event of Default shall have occurred  and be continuing on the date of such Restricted Payment or Permitted Acquisition or would result  after giving effect to such transaction, (b) after giving effect to and at all times during the sixty  (60) consecutive day period immediately prior to the making of such Restricted Payment or  consummation of such Permitted Acquisition, Availability shall be greater than or equal to the  greater of (A) $10,000,000 and (B) thirty percent (30%) of the Line Cap then in effect, (c) after  giving effect to such Restricted Payment or Permitted Acquisition, the Fixed Charge Coverage  Ratio for Holdings and its Subsidiaries for the most recently ended fiscal, calculated on a pro forma  basis, shall be greater than 1.25 to 1.00 and (d) the Administrative Agent shall have received a  certificate of a Responsible Officer of the Borrower Representative demonstrating satisfaction of  the foregoing conditions concurrently with such Restricted Payment or Permitted Acquisition.  “Payment Date” means (a) in respect of each Base Rate Loan, the first day of each and  every calendar month during the term of this Agreement, upon prepayment of such Loan and the  Maturity Date, and (b) in respect of each Eurodollar Rate Term SOFR Loan, the last day of each  Interest Period applicable to such Eurodollar Rate Term SOFR Loan (or the day that is three (3)  months after the first day of such Interest Period if such Interest Period has a length of more than  three (3) months), upon prepayment of such Loan and the Maturity Date and (c) in respect of each  Daily Simple SOFR Loan, the first day of each and every calendar month during the term of this  Agreement, upon prepayment of such Loan, and the Maturity Date.  “Payment Notice” has the meaning set forth in Section 10.12(b).  “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to all  or any of its functions under ERISA.  “Perfection Certificate” means, collectively, (a) that certain Perfection Certificate dated as  of the Closing Date, executed by the Loan Parties at such time and addressed to Administrative  Agent and (b) any other perfection certificate from time to time delivered to Administrative Agent,  executed by the Loan Parties, in each case in form and substance reasonably satisfactory to  Administrative Agent.  “Periodic Term SOFR Determination Day” has the meaning set forth in the definition of  “Term SOFR”.  “Permitted Acquisition” means any acquisition by any Loan Party or any Domestic  Subsidiary of any Loan Party, whether by purchase, merger or otherwise, of all or substantially all  of the assets of, all of the Equity Interests of, or a business line or unit or a division of, any Person;  provided, that:  (a) no Default or Event of Default shall have occurred and be continuing either  immediately prior to or immediately after giving effect to such acquisition;  (b) such acquisition is not a hostile or contested acquisition;  (c) the business acquired in connection with such acquisition is (i) principally  located in the United States, Canada or Mexico (ii) organized under applicable laws, and (iii) not  





 






  CREDIT AGREEMENT – Page 40    engaged, directly or indirectly, in any line of business other than the businesses in which the Loan  Parties are engaged on the Closing Date or any Permitted Other Business Lines, and any business  activities that are substantially similar, related, or incidental thereto;  (d) at or prior to the closing of any such proposed Permitted Acquisition,  Administrative Agent will be granted a first priority perfected Lien (subject only to Permitted  Liens) in substantially all assets constituting Collateral acquired pursuant thereto and Equity  Interests of the Person being acquired (to the extent required by this Agreement) if such Person  will become a Loan Party hereunder, and the Borrowers and such Person shall have executed such  documents and taken such actions as may be reasonably required by Administrative Agent in  connection therewith (including, without limitation, the delivery of (A) certified copies of the  resolutions of the board of directors, board of managers, sole member or other comparable  governing body of, as applicable, any applicable Loan Party and such Person authorizing such  Permitted Acquisition and the granting of Liens described herein, (B) legal opinions, in form and  substance reasonably acceptable to Administrative Agent, with respect to the transactions  described herein, (C) evidence of insurance of the business to be acquired consistent with the  requirements of this Agreement and (D) if applicable, a Joinder Agreement and any joinders or  other agreements required pursuant to Section 6.13);  (e) the aggregate purchase price (including merger consideration, if applicable)  paid by the Loan Parties in any transaction or series of transactions with respect to such acquisition   does not exceed $25,000,000 in any period of twelve consecutive months (and the aggregate  purchase prices (including merger consideration) paid by the Loan Parties over the term of this  Agreement with respect to all acquisitions does not exceed $75,000,000);  (f) the Borrower Representative shall have furnished Administrative Agent  with twenty (20) days’ (or such shorter period as may be agreed by Administrative Agent in its  sole discretion) prior written notice of such proposed acquisition;  (g) if such acquisition is an acquisition of the Equity Interests of a Person, the  acquisition is structured so that the acquired Person shall become (i) a Domestic Subsidiary of  Holdings of which greater than fifty percent (50%) of the issued and outstanding Equity Interests  thereof are owned and held by Holdings and/or one or more Subsidiaries of Holdings and (ii) a  Guarantor pursuant to the terms of this Agreement to the extent such acquired Person is a wholly- owned Domestic Subsidiary;  (h) in connection with an acquisition of the Equity Interests of any Person, all  Liens on property of such Person shall be terminated unless the Administrative Agent in its sole  discretion consents otherwise, and in connection with an acquisition of the assets of any Person,  all Liens on such assets shall be terminated;   (i) the Borrower Representative shall have furnished Administrative Agent (as  soon as available, and in event at least five (5) Business Days’ prior to the consummation of such  acquisition (or such shorter period as may be agreed by Administrative Agent in its sole  discretion)) with a current draft of the applicable material acquisition documents (and final copies  thereof as and when executed);   





 






  CREDIT AGREEMENT – Page 41    (j) the Payment Conditions shall have been satisfied; and  (k) the Borrower Representative shall have furnished to Administrative Agent  at least three (3) Business Days prior to the date on which any such acquisition is to be  consummated or such shorter time as Administrative Agent may allow, a certificate of a  Responsible Officer of Borrower, in form and substance reasonably satisfactory to Administrative  Agent, certifying that (i) immediately after giving effect such acquisition, the Payment Conditions  shall have been satisfied and (ii) all of the other requirements for a Permitted Acquisition will be  satisfied on or prior to the closing date of such acquisition.  Notwithstanding anything to the contrary herein, no Accounts, Inventory, or Compressor Units  (other than any Eligible New Compressor Fleet to the extent acquired by a Borrower) acquired in  connection with such acquisition will be included in the determination of the Borrowing Base until  the Administrative Agent shall have conducted an appraisal, audit and/or field examination of such  Accounts, Inventory or Compressor Units, as the case may be, the results of which shall be  satisfactory to the Administrative Agent in its sole discretion.  “Permitted Discretion” means a determination made in good faith and in the exercise of  reasonable (from the perspective of a secured asset-based lender) business judgment.  “Permitted Liens” means those Liens permitted by Section 7.2.  “Permitted Other Business Lines” means any and all of the following: (a) sales, rental  and/or servicing of gas treating and/or processing equipment and/or the providing of gas treating  and/or processing services; (b) sales, rental and/or servicing of oil and gas measurement and/or  treating equipment and/or the providing of oil and gas measurement and/or treating services; (c)  sales, rental and/or servicing of natural gas emissions equipment and/or the providing of natural  gas emissions measurement services; (d) operation of pipelines for in-state transportation of oil  and/or gas from a wellhead to a treatment or processing facility; (e) fabrication, sales, rental and/or  servicing of portable power generation equipment; and (f) any other businesses directly related to  the servicing of crude oil and natural gas producers and producing properties approved by the  Administrative Agent, such approval not to be unreasonably withheld.  “Permitted Refinancing” means, with respect to any Debt, any refinancings or refundings  thereof; provided that (a) the principal amount (or accreted value, if applicable) of such Debt is  not increased at the time of such refinancing or refunding from the principal amount (or accreted  value, if applicable) of such refinanced or refunded Debt outstanding immediately prior to such  refinancing or refunding, except by an amount equal to a reasonable premium or other reasonable  amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, (b)  the average life to maturity of any refinancing or refunding of such Debt permitted hereby is not  less than the then average life to maturity of the Debt so refinanced or replaced, (c) the direct or  contingent obligors with respect to such Debt provided comparable credit accommodations with  respect to the Debt being refinanced or refunded (provided that additional obligors may be added  so long as such additional obligors are Loan Parties pursuant to the Loan Documents), (d) any  refinancing or refunding of Subordinated Debt shall be on terms no less favorable to  Administrative Agent and the Lenders (taken as a whole), and no more restrictive to the Loan  Parties (taken as a whole), than the Subordinated Debt being refinanced or refunded, (e) the all-in- 





 






  CREDIT AGREEMENT – Page 42    yield applicable to any such refinancing or refunding Debt does not exceed the all-in-yield for the  Debt being refinanced or refunded or, if greater, the market all-in-yield for similar Debt at such  time, and (f) such refinancing or refunding does not impair or restrict, in any material respect  greater than as contained in the Debt being refinanced or refunded, the ability of the Loan Parties  to make distributions or transfer money and other property to or otherwise enter into transactions  among the other Loan Parties.  “Person” means any natural person, corporation, limited liability company, trust,  association, company, partnership, joint venture, Governmental Authority, or other entity, and  shall include such Person’s heirs, administrators, personal representatives, executors, successors  and assigns.  “Plan” means any employee benefit or other plan, other than a Multiemployer Plan,  established or maintained by, or for which there is an obligation to make contributions by or there  is any liability, contingent or otherwise with respect to a Borrower or any ERISA Affiliate and  which is covered by Title IV of ERISA or subject to Section 412 of the Code.  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.  “Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic  transmission system.  “Prime Rate” means the rate of interest per annum publicly announced from time to time  by Texas Capital Bank as its prime rate in effect at its Principal Office; each change in the Prime  Rate shall be effective from and including the date such change is publicly announced as being  effective.  Such rate is set by Texas Capital Bank as a general reference rate of interest, taking into  account such factors as Texas Capital Bank may deem appropriate; it being understood that many  of Texas Capital Bank’s commercial or other loans are priced in relation to such rate, that it is not  necessarily the lowest or best rate actually charged to any customer and that Texas Capital Bank  may make various commercial or other loans at rates of interest having no relationship to such  rate.  “Prime Rate” means the rate of interest published by The Wall Street Journal, from time  to time, as the “U.S. Prime Rate”.  “Principal Office” means the principal office of Administrative Agent, presently located  at the address set forth on Schedule 11.11.  “Prohibited Transaction” means any transaction set forth in Section 406 of ERISA or  Section 4975 of the Code.  “Property” means, with respect to any Person, any and all property, whether real, personal,  tangible, intangible or mixed, of such Person, or any other assets owned, operated or leased by  such Person.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  





 






  CREDIT AGREEMENT – Page 43    “Purchase Money Debt” means Debt, the proceeds of which are used to finance the  acquisition, lease, completion of construction, repair of, replacement, improvement to or  installation of any Property; provided, however, that such Debt is incurred no later than 180 days  after such acquisition, leasing, completion, construction, repairment, replacement, improvement  or installation.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning set forth in Section 11.30.  “Qualified ECP Guarantor” means, at any time, each Loan Party with total assets  exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the  Commodity Exchange Act or any regulation promulgated thereunder and can cause another Person  to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the  Commodity Exchange Act.  “Qualified Financial Institution” means any financial institution that is a commercial  bank (or an Affiliate thereof, including an investment bank, but excluding any special situation  investor), which is regularly engaged in making, purchasing, holding or otherwise investing in  revolving commercial loans and similar extensions of credit in asset-based, secured revolving  credit facilities in the United States.  “Receipts” has the meaning set forth in Section 2.12(a).  “Recipient” means Administrative Agent, L/C Issuer, Swing Line Lender, or any Lender,  as applicable.  “Reference Time” means, with respect to any setting of the then-current Benchmark, (a) if  such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking  days preceding the date of such setting, and (b) if such Benchmark is not USD LIBOR, the time  determined by the Administrative Agent in its reasonable discretion.  “Register” means a register for the recordation of the names and addresses of Lenders, and  the Commitments of, and principal amounts of  and stated interest on the Loans owing to, each  Lender pursuant to the terms hereof from time to time.  “Related Indebtedness” means any and all indebtedness paid or payable by any Borrower  or any other Loan Party to Administrative Agent or any Lender pursuant to any Loan Document  other than any Note.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the  partners, directors, officers, employees, agents, sub agents, trustees, administrators, managers,  advisors and representatives of such Person and of such Person’s Affiliates.  “Release” means, as to any Person, any release, spill, emission, leaking, pumping,  injection, deposit, disposal, disbursement, leaching, or migration of Hazardous Materials into the  indoor or outdoor environment or into or out of Property owned by such Person, including, without  





 






  CREDIT AGREEMENT – Page 44    limitation, the movement of Hazardous Materials through or in the air, soil, surface water, ground  water, or Property.  “Release Date” means the last to occur of the dates on which Liens securing the  Obligations may be released pursuant to Section 10.9(a)(i)(A).  “Relevant Governmental Body” means the Board of Governors or the Federal Reserve  Bank of New York, or a committee officially endorsed or convened by the Board of Governors or  the Federal Reserve Bank of New York, or any successor thereto.  “Remedial Action” means all actions required to (a) clean up, remove, treat, or otherwise  address Hazardous Materials in the indoor or outdoor environment, (b) prevent the Release or  threat of Release or minimize the further Release of Hazardous Materials so that they do not  migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor  environment, or (c) perform pre-remedial studies and investigations and post-remedial monitoring  and care.  “Removal Effective Date” has the meaning set forth in Section 10.6(b).  “Rent Reserve” means, with respect to any facility, warehouse distribution center, regional  distribution center or depot where any Inventory subject to Liens arising by operation of law is  located and with respect to which no Collateral Access Agreement is in effect, a reserve equal to  (a) in the case of any leased location, all rent, charges and fees scheduled or customarily falling  due for payment during (i) a two (2) month period at such facility, warehouse distribution center,  regional distribution center or depot where any Inventory (other than Compressor Units) is stored  or located and (ii) a six (6) month period at such facility, warehouse distribution center, regional  distribution center or depot where any Compressor Units are stored or located, and (b) in the case  of any other location, an amount determined by Administrative Agent in its Permitted Discretion  in respect of liabilities owed to the applicable consignee, bailee, processor or warehouseman.   Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no  Rent Reserve will be implemented during the first sixty (60) days after the Closing Date with  respect to any such location not covered by a Collateral Access Agreement.  “Reportable Event” means any of the events set forth in Section 4043 of ERISA.  “Required Lenders” means, as of any date of determination, Lenders holding more than  66 2/3% of the sum of the (a) the Revolving Credit Exposure of all Lenders (with the aggregate  amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing  Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate  unused Commitments; provided that, if one Lender holds more than 66 2/3% but less than 100%  of the sum of the Revolving Credit Exposure and the unused Commitments at such time, subject  to the last sentence of Section 11.10, Required Lenders shall be at least two Lenders.  The unused  Commitment of, and the portion of the Revolving Credit Exposure of all Lenders held or deemed  held by, any Defaulting Lender shall be excluded for purposes of making a determination of  Required Lenders.  “Resignation Effective Date” has the meaning set forth in Section 10.6(a).  





 






  CREDIT AGREEMENT – Page 45    “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Responsible Officer” means the chief executive officer, president, chief financial officer,  or treasurer of a Loan Party (or the chief executive officer, president, chief financial officer, or  treasurer of the general partner or managing member of a Loan Party, as applicable); solely for  purposes of the delivery of incumbency certificates pursuant to Section 4.1, the secretary or  assistant secretary of a Loan Party (or the secretary or any assistant secretary of the general partner  or managing member of a Loan Party, as applicable) or any Person designated by a Responsible  Officer to act on behalf of a Responsible Officer; provided that such designated Person may not  designate any other Person to be a Responsible Officer.  Any document delivered hereunder that  is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been  authorized by all necessary corporate, partnership and/or other action on the part of such Person  and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan  Party.  “Restricted Payment” means, collectively, (a) any dividend or other distribution (whether  in cash, securities or other Property) with respect to any capital stock or other Equity Interest of  Holdings or any Subsidiary thereof, (b) any payment (whether in cash, securities or other  Property), including any sinking fund or similar deposit, on account of the purchase, redemption,  retirement, acquisition, cancellation or termination of any capital stock or other Equity Interest or  on account of any return of capital to Holdings’ stockholders, partners or members (or the  equivalent Person thereof) and (c) any payment of management, advisory or similar fees to any  holders of Equity Interests of a Loan Party or their Affiliates.  “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving  Credit Loans of the same Type and, in the case of Eurodollar Rate Term SOFR Loans, having the  same Interest Period made by each of the Lenders pursuant to Section 2.1(a).  “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate  Outstanding Amount of its Revolving Credit Loans and such Lender’s participation in L/C  Obligations and Swing Line Loans at such time.  “Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’  Commitments at such time.  “Revolving Credit Loan” has the meaning set forth in Section 2.1(a).  “RICO” means the Racketeer Influenced and Corrupt Organization Act of 1970.  “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill  Companies, Inc. S&P Global Ratings, a S&P Global Inc. business and any successor thereto that  is a nationally-recognized rating agency.  “Sanctioned Country” means, at any time, a country , region or territory which is itself (or  whose government is) the subject or target of any Sanctions (including, as of the First Amendment  Effective Date, the so-called Donetsk People’s Republic and the so-called Luhansk People’s  Republic regions of Ukraine, Cuba, Iran, North Korea, Syria and Crimea).  





 






  CREDIT AGREEMENT – Page 46    “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list  of designated Persons maintained by OFAC (including OFAC’s Specially Designated Nationals  and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State  or by the United Nations Security Council, the European Union, any European Union member  state or Her His Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized  or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or  Persons, in each case, to the extent dealings are prohibited or restricted with such Person under  Sanctions.  “Sanctions” means economic or financial sanctions or , sectoral sanctions, secondary  sanctions, trade embargoes and restrictions imposed, administered or enforced from time to time  by the U.S. government (including those administered by OFAC or the U.S. Department of State),  the United Nations Security Council, the European Union, any European Union member state or  Her His Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority in which  (a) any Loan Party or any of their Subsidiaries or Affiliates is located or conducts business, (b) in  which any of the proceeds of the Credit Extensions will be used, or (c) from which repayment of  the Obligations will be derived.  “Scheduled Unavailability Date” has the meaning set forth in Section 3.3(b)(vi).  “SEC” means the Securities and Exchange Commission or any successor Governmental  Authority.  “Secured Parties” means the collective reference to Administrative Agent, each Lender,  L/C Issuer, Swing Line Lender, each Bank Product Provider, and any other Person the Obligations  owing to which are, or are purported to be, secured by the Collateral under the terms of the Security  Documents.  “Securities Account Control Agreement” has the meaning assigned to such term in the  Security Agreement.  “Security Agreement” means that certain Pledge and Security Agreement (including any  and all supplements thereto), dated as of the Closing Date, among the Loan Parties and  Administrative Agent, for the benefit of Administrative Agent and the other Secured Parties, and  any other pledge or security agreement entered into, after the date of this Agreement by any other  Loan Party (as required by this Agreement or any other Loan Document) or any other Person for  the benefit of Administrative Agent and the other Secured Parties, as the same may be amended,  restated, supplemented or otherwise modified from time to time.  “Security Documents” means (a) the Security Agreement, (b) the Control Agreements and  (c) every mortgage, security agreement, pledge agreement, mortgage, deed of trust, control  agreement or other collateral security agreement required by or delivered to Administrative Agent  from time to time that purport to create a Lien in favor of any of the Secured Parties to secure  payment or performance of the Obligations or any portion thereof.  “SOFR” means, with respect to any Business Day,  a rate per annum equal to the secured  overnight financing rate for such Business Day published as administered by the SOFR  





 






  CREDIT AGREEMENT – Page 47    Administrator on the SOFR Administrator’s Website on the immediately succeeding Business  Day.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New  York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight  financing rate identified as such by the SOFR Administrator from time to time.  “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of  which is the number one (1) and the denominator of which is the number one (1) minus the  aggregate of the maximum reserve percentages (including any marginal, special, emergency or  supplemental reserves) expressed as a decimal established by the Board of Governors to which  Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding  (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board of Governors).   Such reserve percentages shall include those imposed pursuant to such Regulation D.  Eurodollar  Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve  requirements without benefit of or credit for proration, exemptions or offsets that may be available  from time to time to any Lender under such Regulation D or any comparable regulation.  The  Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change  in any reserve percentage.  “Subordinated Debt” means, collectively, all Debt incurred by any Loan Party or any  Subsidiary that is, in each case, subordinated to the Obligations (pursuant to a subordination,  intercreditor, or other similar agreement in form and substance satisfactory to Administrative  Agent entered into among Administrative Agent, the applicable creditor and the Loan Parties), in  a manner satisfactory to Administrative Agent, and contains terms, including, without limitation,  payment terms, satisfactory to Administrative Agent.   “Subordinated Debt Documents” means, collectively, any and all instruments, documents  and agreements executed and/or delivered in connection with any Subordinated Debt, in each case,  as amended, amended and restated, supplemented or otherwise modified from time to time in  accordance with the terms of the applicable Subordination Agreement.  “Subordination Agreement” means, individually and collectively, all subordination  agreements, intercreditor agreements, consent and similar agreements among any Loan Party or  the Administrative Agent and any holder of Subordinated Debt, whether entered into on or prior  to the date hereof or from time to time hereafter, together with all modifications, amendments and  restatements of any of the foregoing.   “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which a majority of the shares of securities or other interests  having ordinary voting power for the election of directors or other governing body (other than  securities or interests having such power only by reason of the happening of a contingency) are at  the time beneficially owned, or the management of which is otherwise controlled, directly, or  indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise  





 






  CREDIT AGREEMENT – Page 48    specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or  Subsidiaries of Holdings.  “Supported QFC” has the meaning set forth in Section 11.30.  “Sureties” has the meaning set forth in Section 12.3(b).  “Swap Obligations” means, with respect to any Loan Party, any obligation to pay or  perform under any agreement, contract or transaction that constitutes a “swap” within the meaning  of Section 1a(47) of the Commodity Exchange Act.  “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to  Section 2.3.  “Swing Line Lender” means Texas Capital Bank in its capacity as provider of Swing Line  Loans, or any successor swing line lender hereunder.  “Swing Line Loan” has the meaning set forth in Section 2.3(a).  “Swing Line Loan Request” means a writing, substantially in the form of Exhibit F, or in  such other form agreed to by the Borrower Representative and Administrative Agent, properly  completed and signed by the Borrower Representative, requesting a Swing Line Borrowing.  “Swing Line Sublimit” means an amount not to exceed $5,000,000; provided that there is  more than one Lender.  The Swing Line Sublimit is part of, and not in addition to, the  Commitments.  “Tax Return” means any return (including any information report), report, statement,  schedule, notice, form, or other document or information filed with or submitted to, or required to  be filed with or submitted to, any Governmental Authority in connection with the determination,  assessment, collection, or payment of any Tax or in connection with the administration,  implementation, or enforcement of any Tax.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means:  (a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference  Rate for a tenor comparable to the applicable Interest Period on the day (such day, a “Periodic  Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior  to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator;  provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR  Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been  published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to  the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR  Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding  





 






  CREDIT AGREEMENT – Page 49    U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such  tenor was published by the Term SOFR Administrator so long as such first preceding U.S.  Government Securities Business Day is not more than three (3) U.S. Government Securities  Business Days prior to such Periodic Term SOFR Determination Day, and  (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR  Reference Rate for a tenor of one month on the day (such day, a “Base Rate Term SOFR  Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day,  as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00  p.m. (New York City time) on any Base Rate Term SOFR Determination Day, the Term SOFR  Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator  and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not  occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by  the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day  for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR  Administrator so long as such first preceding U.S. Government Securities Business Day is not  more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR  Determination Day.  “Term SOFR Adjustment” means, for any calculation (a) with respect to a Base Rate Loan  (if calculated pursuant to clause (c) of the definition of “Base Rate”), a percentage per annum  equal to 0.10% for such Base Rate Loan or (b) with respect to a Term SOFR Loan, a percentage  per annum as set forth below for such Term SOFR Loan and Interest Period therefor:  Interest Period Percentage  One month 0.10% Three months 0.15% Six months 0.25%   “Term SOFR Administrator” means CME Group Benchmark Administration Limited  (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the  Administrative Agent in its reasonable discretion).  “Term SOFR Borrowing” means, as to any Borrowing, the Term SOFR Loans comprising  such Borrowing.  “Term SOFR Loan” means a Loan bearing interest based on Adjusted Term SOFR.  “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.  “Texas Capital Bank” means Texas Capital Bank, National Association, a national  banking association,  and its successors and assigns.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or  recommended by the Relevant Governmental Body.  





 






  CREDIT AGREEMENT – Page 50    “Trigger Period” means any period commencing on the first date on which (a) an Event of  Default has occurred or (b) Availability is less than the Trigger Period Threshold, and continuing,  in either case, until the date upon which both (i) Availability has been equal to or greater than the  Trigger Period Threshold at all times during the preceding sixty (60) consecutive day period, and  (ii) no Event of Default has occurred and is continuing during such sixty (60) consecutive day  period.  “Trigger Period Threshold” means, as of any date of determination, the greater of (a)  $7,500,000 and (b) fifteen percent (15%) of the Line Cap then in effect.  “Type” means, with respect to a Loan, refers to whether such Loan is a Base Rate Loan or  a Eurodollar Rate Term SOFR Loan, and, with respect to a Borrowing, refers to whether such  Borrowing is a Base Rate Borrowing or a Eurodollar Rate Term SOFR Borrowing.  “UCC” means the Uniform Commercial Code as in effect from time to time in the State of  Texas or any other state the laws of which are required to be applied in connection with the issue  of perfection of security interests.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended  from time to time) promulgated by the United Kingdom Financial Conduct Authority, which  includes certain credit institutions and investment firms, and certain affiliates of such credit  institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfinanced Capital Expenditures” means, for any date of determination, Capital  Expenditures (or any portion thereof) of Holdings and its Subsidiaries made in cash during the  four (4) quarter period then ending (excluding Capital Expenditures to the extent financed from  the proceeds of any Debt (other than the Revolving  Credit Loans)); provided, that in no event  shall the amount of Unfinanced Capital Expenditures for any period be less than zero.  “Unfunded Pension Liability” means the excess, if any, of (a) the funding target as defined  under Section 430(d) of the Code without regard to the special at-risk rules of Section 430(i) of  the Code, over (b) the value of plan assets as defined under Section 430(g)(3)(A) of the Code  determined as of the last day of each plan year, without regard to the averaging which may be  allowed under Section 430(g)(3)(B) of the Code and reduced for any prefunding balance or  funding standard carryover balance as defined and provided for in Section 430(f) of the Code.  “Unreimbursed Amount” has the meaning set forth in Section 2.2(c)(i).  “USD LIBOR” means the London interbank offered rate for U.S. dollars.  





 






  CREDIT AGREEMENT – Page 51    “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b)  a Sunday or (c) a day on which the Securities Industry and Financial Markets Association  recommends that the fixed income departments of its members be closed for the entire day for  purposes of trading in United States government securities.  “U.S. Person” means any Person that is a “United States Person” as defined in  Section 7701(a)(30) of the Code.  “U.S. Special Resolution Regimes” has the meaning set forth in Section 11.30.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.4(g)(ii)(B)(3).  “Withholding Agent” means each of the Loan Parties and Administrative Agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect  to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In  Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial  Institution or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that person or any other person, to provide that  any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  Section 1.2 Accounting Matters.  (a) Generally.  All accounting terms not specifically or completely defined  herein shall be construed in conformity with, and all financial data (including financial  ratios and other financial calculations) required to be submitted pursuant to this Agreement  shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from  time to time, applied in a manner consistent with that used in preparing the audited financial  statements described in Section 5.2, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing or anything to the contrary herein, (i) for purposes of  determining compliance with any covenant (including the computation of any Financial  Covenant) contained herein, Debt of Holdings and its Subsidiaries shall be deemed to be  carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC  825 on financial liabilities shall be disregarded and (ii) any lease that is treated as an  operating lease for purposes of GAAP as of December 15, 2018 shall continue to be treated  as an operating lease (and any future lease, if it were in effect on December 15, 2018, that  would be treated as an operating lease for purposes of GAAP as of December 15, 2018  shall be treated as an operating lease), in each case for purposes of this Agreement,  notwithstanding any change in GAAP after December 15, 2018.  (b) Changes in GAAP.  If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth herein, and either the Borrower  Representative or the Required Lenders shall so request, Administrative Agent, Lenders  





 






  CREDIT AGREEMENT – Page 52    and the Borrower Representative shall negotiate in good faith to amend such ratio or  requirement to preserve the original intent thereof in light of such change in GAAP (subject  to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or  requirement shall continue to be computed in accordance with GAAP prior to such change  therein and (ii) the Borrower Representative shall provide to Administrative Agent and  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.   Section 1.3 ERISA Matters.  If, after the date hereof, there shall occur, with respect to  ERISA, the adoption of any applicable Law, rule, or regulation, or any change therein, or any  change in the interpretation or administration thereof by the PBGC or any other Governmental  Authority, then either the Borrower Representative or Required Lenders may request a  modification to this Agreement solely to preserve the original intent of this Agreement with respect  to the provisions hereof applicable to ERISA, and the parties to this Agreement shall negotiate in  good faith to complete such modification.  Section 1.4 Letter of Credit Amounts.  Unless otherwise specified herein, the amount  of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit  in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms  or the terms of any Issuer Document related thereto, provides for one or more automatic increases  in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the  maximum stated amount of such Letter of Credit after giving effect to all such increases, whether  or not such maximum stated amount is in effect at such time.  Section 1.5 Other Definitional Provisions.  All definitions contained in this  Agreement are equally applicable to the singular and plural forms of the terms defined.  The words  “hereof”, “herein”, and “hereunder” and words of similar import referring to this Agreement refer  to this Agreement as a whole and not to any particular provision of this Agreement.  Unless  otherwise specified, all references in a Loan Document to Articles, Sections, Exhibits and  Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,  the Loan Document in which such references appear.  Terms used herein that are defined in the  UCC, unless otherwise defined herein, shall have the meanings specified in the UCC.  Any  definition of or reference to any agreement, instrument or other document shall be construed as  referring to such agreement, instrument or other document as from time to time amended,  supplemented or otherwise modified (subject to any restrictions on such amendments, supplements  or modifications set forth herein or in any other Loan Document).  Any reference to any Law shall  include all statutory and regulatory provisions consolidating, amending, replacing or interpreting  such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to  such Law or regulation as amended, modified or supplemented from time to time.  Words denoting  gender shall be construed to include the masculine, feminine and neuter, when such construction  is appropriate; specific enumeration shall not exclude the general but shall be constructed as  cumulative; the word “or” is not exclusive; the word “including” (in its various forms) means  “including, without limitation”; in the computation of periods of time, the word “from” means  “from and including” and the words “to” and “until” mean “to but excluding”; and all references  to money refer to the legal currency of the United States of America.  





 






  CREDIT AGREEMENT – Page 53    Section 1.6 Interpretative Provision.  For purposes of Section 9.1, a breach of a  Financial Covenant shall be deemed to have occurred as of any date of determination thereof by  Holdings, Borrowers, or the Required Lenders or as of the last date of any specified measurement  period, regardless of when the financial statements or the Compliance Certificate reflecting such  breach are delivered to Administrative Agent.  Section 1.7 Times of Day.  Unless otherwise specified, all references herein to times of  day shall be references to central time (daylight or standard, as applicable).  Section 1.8 Other Loan Documents.  The other Loan Documents, including the  Security Documents, contain representations, warranties, covenants, defaults and other provisions  that are in addition to and not limited by, or a limitation of, similar provisions of this Agreement.   Such provisions in such other Loan Documents may be different or more expansive than similar  provisions of this Agreement and neither such differences nor such more expansive provisions  shall be construed as a conflict.  Section 1.9 Divisions.  For all purposes under the Loan Documents, in connection with  any division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,  right, obligation or liability of a different Person, then it shall be deemed to have been transferred  from the original Person to the subsequent Person, and (b) if any new Person comes into existence,  such new Person shall be deemed to have been organized on the first date of its existence by the  holders of its Equity Interests at such time.  Section 1.10 Pro Forma Calculations.  To the extent the Fixed Charge Coverage Ratio  of Holdings and its Subsidiaries is required under this Agreement to be calculated on a “pro forma  basis”, then for purposes of making any calculation with respect to such financial ratio required by  this Agreement, such calculation shall be made in good faith as determined by Holdings and for  the period of four fiscal quarters of Holdings most recently ended for which financial statements  have been delivered in accordance with Section 6.1(a) or Section 6.1(b), as applicable, and such  calculation shall be acceptable to the Administrative Agent in its sole discretion and factually  supportable, as certified by a Responsible Officer of Holdings to the Administrative Agent (along  with evidence supporting such pro forma calculation).  Section 1.11 Rates.  The interest rate on Eurodollar Rate Loans and Base Rate Loans  (when determined by reference to clause (c) of the definition of Base Rate) is determined by  reference to USD LIBOR, which is derived from the London interbank offered rate.  The London  interbank offered rate is intended to represent the rate at which contributing banks may obtain  short-term borrowings from each other in the London interbank market.  On March 5, 2021, ICE  Benchmark Administration (the “IBA”), the administrator of the London interbank offered rate,  and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of the IBA, announced  in public statements (the “Announcements”) that the final publication or representativeness date  for the London interbank offered rate for dollars for: (a) 1-week and 2-month tenor settings will  be December 31, 2021 and (b) overnight, 1-month, 3-month, 6-month and 12-month tenor settings  will be June 30, 2023. No successor administrator for the IBA was identified in such  Announcements. As a result, it is possible that commencing immediately after such dates, the  London interbank offered rate for such tenors may no longer be available or may no longer be  





 






  CREDIT AGREEMENT – Page 54    deemed a representative reference rate upon which to determine the interest rate on Eurodollar  Rate Loans or Base Rate Loans (when determined by reference to clause (c) of the definition of  Base Rate). There is no assurance that the dates set forth in the Announcements will not change or  that the IBA or the FCA will not take further action that could impact the availability, composition  or characteristics of any London interbank offered rate. Public and private sector industry  initiatives have been and continue, as of the date hereof, to be underway to implement new or  alternative reference rates to be used in place of the London interbank offered rate.  In the event  that the London interbank offered rate or any other then-current Benchmark is no longer available  or in certain other circumstances set forth in Section 3.3, such Section 3.3 provides a mechanism  for determining an alternative rate of interest. The Administrative Agent will notify the Borrower  Representative, pursuant to Section 3.3, of any change to the reference rate upon which the interest  rate on Eurodollar Rate Loans and Base Rate Loans (when determined by reference to clause (c)  of the definition of Base Rate) is based.  However, the Administrative Agent does not warrant or  accept any responsibility for, and shall not have any liability with respect to, (ia) the continuation  of, administration of, submission of, calculation of or any other matter related to the London  interbank offered rate or other rates Base Rate, the Term SOFR Reference Rate, Adjusted Term  SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition of  “LIBOR” or with respect to thereof, or any alternative, comparable or successor rate thereto, or  replacement rate thereof thereto (including any then-current Benchmark or any Benchmark  Replacement), including the selection of such rate and any related spread or other adjustment or  whether the composition or characteristics of any such alternative, successor or replacement  reference rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant  to Section 3.3,  will be similar to, or produce the same value or economic equivalence of, USD  LIBOR or any other Benchmark, or have the same volume or liquidity as did the London interbank  offered rate , the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR  or any other Benchmark prior to its discontinuance or unavailability,  or (iib) the effect,  implementation or composition of any Conforming Changes. The Administrative Agent and its  Affiliates or other related entities may engage in transactions that affect the calculation of the Base  Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative,  successor or replacement rate (including any Benchmark Replacement Conforming Changes) or  any relevant adjustments thereto, in each case, in a manner adverse to the Loan Parties.  The  Administrative Agent may select information sources or services in its reasonable discretion to  ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or  any other Benchmark, or any component definition thereof or rates referred to in the definition  thereof, in each case, pursuant to the terms of this Agreement, and shall have no liability to any  Loan Party, any Lender or any other Person or entity for damages of any kind, including direct or  indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether  in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any  such rate (or component thereof) provided by any such information source or service.  ARTICLE 2.    THE COMMITMENTS AND CREDIT EXTENSIONS  Section 2.1 The Loans.  





 






  CREDIT AGREEMENT – Page 55    (a) Revolving Credit Borrowings.  Subject to the terms and conditions of this  Agreement, each Lender severally agrees to make one or more revolving credit loans (each  such loan, a “Revolving Credit Loan”) to Borrowers from time to time from the Closing  Date until the Maturity Date in an aggregate principal amount for such Lender at any time  outstanding up to but not exceeding the amount of such Lender’s Commitment, provided  that the Revolving Credit Exposure of all Lenders shall not exceed the Line Cap then in  effect.  Subject to the foregoing limitations, and the other terms and provisions of this  Agreement, Borrowers may borrow, repay, and reborrow Revolving Credit Loans  hereunder.  (b) Borrowing Procedure.  Each Revolving Credit Borrowing, each  conversion of a Borrowing from one Type to the other, and each continuation of a  Eurodollar Rate Term SOFR Borrowing shall be made upon the Borrower Representative’s  irrevocable notice to Administrative Agent, which may be given by telephone.  Each such  notice must be received by Administrative Agent not later than 11:00 a.m. (i) three (3) U.S.  Government Securities Business Days prior to the requested date of any Borrowing of,  conversion to or continuation of a Eurodollar Rate Borrowing or of any conversion of a  Eurodollar Rate Term SOFR Borrowing to a Base Rate Borrowing, and (ii) on the  requested date of any Base Rate Borrowing.  Each telephonic notice by the Borrower  Representative pursuant to this Section 2.1(b) must be confirmed promptly by delivery to  Administrative Agent of a written Borrowing Request, appropriately completed and signed  by a Responsible Officer of the Borrower Representative.  Each Borrowing of, conversion  to or continuation of a Eurodollar Rate Term SOFR Borrowing shall be in a principal  amount of $250,000 or a whole multiple of $50,000 in excess thereof.  Except as provided  in Sections 2.2(c) and 2.3(c), each Borrowing of or conversion to a Base Rate Borrowing  shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof;  provided that a Base Rate Borrowing may be in an amount equal to Availability.  Each  Borrowing Request (whether telephonic or written) shall specify (A) whether the Borrower  Representative is requesting a Revolving Credit Borrowing, a conversion of Borrowings  from one Type to the other, or a continuation of Borrowings, (B) the requested date of the  Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),  (C) the principal amount of Borrowings to be borrowed, converted or continued, (D) the  Type of Borrowings to be borrowed or to which existing Borrowings are to be converted,  and (E) if applicable, the duration of the Interest Period with respect thereto.  If the  Borrower Representative fails to specify a Type of Borrowing in a Borrowing Request or  if the Borrower Representative fails to give a timely notice requesting a conversion or  continuation, then the applicable Borrowing shall be made as, or converted to, a Base Rate  Borrowing.  Any such automatic conversion to Base Rate Borrowings shall be effective as  of the last day of the Interest Period then in effect with respect to the applicable Eurodollar  Rate Term SOFR Borrowing.  If the Borrower Representative requests a Borrowing of,  conversion to, or continuation of a Eurodollar Rate Term SOFR Borrowing in any such  Borrowing Request, but fails to specify an Interest Period, it will be deemed to have  specified an Interest Period of one (1) month.  (c) Funding.  Following receipt of a Borrowing Request, Administrative Agent  shall promptly notify each Lender of the amount of its Applicable Percentage of the  applicable Borrowing, and if no timely notice of a conversion or continuation is provided  





 






  CREDIT AGREEMENT – Page 56    by the Borrower Representative, Administrative Agent shall notify each Lender of the  details of any automatic conversion to Base Rate Borrowing as described in Section 2.1(b).   In the case of a Revolving Credit Borrowing, each Lender shall make the amount of its  Loan available to Administrative Agent in immediately available funds at Administrative  Agent’s Principal Office not later than 1:00 p.m. on the Business Day specified in the  applicable Borrowing Request.  Upon satisfaction of the applicable conditions set forth in  Section 4.2 (and, if such Borrowing is the initial Credit Extension, Section 4.1),  Administrative Agent shall make all funds so received available to the applicable Borrower  in like funds as received by Administrative Agent either by (i) crediting the account of the  applicable Borrower on the books of Texas Capital Bank with the amount of such funds or  (ii) wire transfer of such funds, in each case in accordance with instructions provided to  (and reasonably acceptable to) Administrative Agent by the Borrower Representative;  provided, however, that if, on the date the Borrowing Request with respect to such  Borrowing is given by the Borrower Representative, there are L/C Borrowings outstanding,  then the proceeds of such Borrowing, first, shall be applied to the payment in full of any  such L/C Borrowings, and second, shall be made available to the applicable Borrower as  provided above.  (d) Continuations and Conversions.  Except as otherwise provided herein, a  Eurodollar Rate Term SOFR Borrowing may be continued or converted only on the last  day of an Interest Period for such Eurodollar Rate Term SOFR Borrowing.  While an Event  of Default has occurred and is continuing, (i) no Loans may be requested as, converted to  or continued as Eurodollar Rate Term SOFR Borrowings without the consent of the  Required Lenders and (ii) unless repaid, each Eurodollar Rate Term SOFR Borrowing shall  be converted to a Base Rate Borrowing at the end of the Interest Period applicable thereto.  (e) Notifications.  Administrative Agent shall promptly notify the Borrower  Representative and Lenders of the interest rate applicable to any Interest Period for  Eurodollar Rate Term SOFR Borrowings upon determination of such interest rate.  At any  time that Base Rate Borrowings are outstanding, Administrative Agent shall notify the  Borrower Representative and Lenders of any change in Texas Capital Bank’s prime rate  used in determining the Base Rate promptly following the public announcement of such  change.  (f) Interest Periods.  After giving effect to all Borrowings, all conversions of  Borrowings from one Type to the other, and all continuations of Borrowings as the same  Type, there shall not be more than five (5) Interest Periods in effect with respect to   Eurodollar Benchmark Rate Borrowings.  Section 2.2 Letters of Credit.  (a) The Letter of Credit Commitment.  (i) Subject to the terms and conditions set forth herein, (A) L/C Issuer  agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.2,  (1) from time to time on any Business Day during the period from the Closing Date  until the Letter of Credit Expiration Date, to issue Letters of Credit for the account  





 






  CREDIT AGREEMENT – Page 57    of any Borrower, and to amend or extend Letters of Credit previously issued by it,  in accordance with subsection (b) below, and (2) to honor drawings under the  Letters of Credit; and (B) Lenders severally agree to participate in Letters of Credit  issued for the account of any Borrower and any drawings thereunder; provided that  immediately after giving effect to any L/C Credit Extension with respect to any  Letter of Credit, (x) the Revolving Credit Exposure of all Lenders shall not exceed  the Line Cap in effect at such time, (y) the Revolving Credit Exposure of any  Lender shall not exceed such Lender’s Commitment, and (z) the Outstanding  Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each  request by the Borrower Representative for the issuance or amendment of a Letter  of Credit shall be deemed to be a representation by Borrowers that the L/C Credit  Extension so requested complies with the conditions set forth in the proviso to the  preceding sentence.  Within the foregoing limits, and subject to the terms and  conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully  revolving, and accordingly Borrowers may, during the foregoing period, obtain  Letters of Credit to replace Letters of Credit that have expired or that have been  drawn upon and reimbursed.    (ii) L/C Issuer shall not issue any Letter of Credit, if:  (A) subject to Section 2.2(b)(iii), the expiry date of the requested  Letter of Credit would occur more than twelve (12) months after the date of  issuance or last extension, unless Required Lenders have approved such  expiry date; or  (B) the expiry date of the requested Letter of Credit would occur  after the Letter of Credit Expiration Date, unless all Lenders have approved  such expiry date.  (iii) L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental  Authority or arbitrator shall by its terms purport to enjoin or restrain L/C  Issuer from issuing the Letter of Credit, or any Law applicable to L/C Issuer  or any request or directive (whether or not having the force of law) from  any Governmental Authority with jurisdiction over L/C Issuer shall  prohibit, or request that L/C Issuer refrain from, the issuance of letters of  credit generally or the Letter of Credit in particular or shall impose upon  L/C Issuer with respect to the Letter of Credit any restriction, reserve or  capital requirement (for which L/C Issuer is not otherwise compensated  hereunder) not in effect on the Closing Date, or shall impose upon L/C  Issuer any unreimbursed loss, cost or expense which was not applicable on  the Closing Date and which L/C Issuer in good faith deems material to it;  (B) except as otherwise agreed by Administrative Agent and L/C  Issuer, the Letter of Credit is in an initial stated amount less than $50,000;  





 






  CREDIT AGREEMENT – Page 58    (C) the Letter of Credit is to be denominated in a currency other  than Dollars;  (D) any Lender is at that time a Defaulting Lender, unless L/C  Issuer has entered into arrangements, including the delivery of Cash  Collateral, satisfactory to L/C Issuer (in its sole discretion) with Borrowers  or such Lender to eliminate L/C Issuer’s actual or potential Fronting  Exposure (after giving effect to Section 11.21(a)(iv)) with respect to the  Defaulting Lender arising from either the Letter of Credit then proposed to  be issued or that Letter of Credit and all other L/C Obligations as to which  L/C Issuer has actual or potential Fronting Exposure, as it may elect in its  sole discretion; or  (E) the Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (iv) L/C Issuer shall not amend any Letter of Credit if L/C Issuer would  not be permitted at such time to issue the Letter of Credit in its amended form under  the terms hereof.  (v) L/C Issuer shall be under no obligation to amend any Letter of Credit  if (A) L/C Issuer would have no obligation at such time to issue the Letter of Credit  in its amended form under the terms hereof, or (B) the beneficiary of the Letter of  Credit does not accept the proposed amendment to the Letter of Credit.  (vi) L/C Issuer shall act on behalf of Lenders with respect to any Letters  of Credit issued by it and the documents associated therewith, and L/C Issuer shall  have all of the benefits and immunities (A) provided to Administrative Agent in  Article 10 with respect to any acts taken or omissions suffered by L/C Issuer in  connection with Letters of Credit issued by it or proposed to be issued by it and  Issuer Documents pertaining to such Letters of Credit as fully as if the term  “Administrative Agent” as used in Article 10 included L/C Issuer with respect to  such acts or omissions, and (B) as additionally provided herein with respect to L/C  Issuer.  (b) Procedures for Issuance and Amendment of Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may  be, upon the request of the Borrower Representative delivered to L/C Issuer (with  a copy to Administrative Agent) in the form of a Letter of Credit Application,  appropriately completed and signed by a Responsible Officer of the Borrower  Representative.  Such Letter of Credit Application may be sent by facsimile, by  United States mail, by overnight courier, by electronic transmission using the  system provided by L/C Issuer, by personal delivery or by any other means  acceptable to L/C Issuer.  Such Letter of Credit Application must be received by  L/C Issuer and Administrative Agent not later than 11:00 a.m. at least two (2)  Business Days (or such later date and time as Administrative Agent and L/C Issuer  





 






  CREDIT AGREEMENT – Page 59    may agree in a particular instance in their sole discretion) prior to the proposed  issuance date or date of amendment, as the case may be.  In the case of a request  for an initial issuance of a Letter of Credit, such Letter of Credit Application shall  specify in form and detail satisfactory to L/C Issuer: (A) the proposed issuance date  of the requested Letter of Credit (which shall be a Business Day); (B) the amount  thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary  thereof; (E) the documents to be presented by such beneficiary in case of any  drawing thereunder; (F) the full text of any certificate to be presented by such  beneficiary in case of any drawing thereunder; (G) the purpose and nature of the  requested Letter of Credit; and (H) such other matters as L/C Issuer may require.   In the case of a request for an amendment of any outstanding Letter of Credit, such  Letter of Credit Application shall specify in form and detail satisfactory to L/C  Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment  thereof (which shall be a Business Day); (3) the nature of the proposed amendment;  and (4) such other matters as L/C Issuer may require.  Additionally, the Borrower  Representative shall furnish to L/C Issuer and Administrative Agent such other  documents and information pertaining to such requested Letter of Credit issuance  or amendment, including any Issuer Documents, as L/C Issuer or Administrative  Agent may require.  (ii) Promptly after receipt of any Letter of Credit Application, L/C  Issuer will confirm with Administrative Agent (by telephone or in writing) that  Administrative Agent has received a copy of such Letter of Credit Application from  the Borrower Representative and, if not, L/C Issuer will provide Administrative  Agent with a copy thereof.  Unless L/C Issuer has received written notice from  Administrative Agent or any Loan Party, at least one (1) Business Day prior to the  requested date of issuance or amendment of the applicable Letter of Credit, that one  or more applicable conditions contained in Article 4 shall not then be satisfied, then,  subject to the terms and conditions hereof, L/C Issuer shall, on the requested date,  issue a Letter of Credit for the account of the applicable Borrower or enter into the  applicable amendment, as the case may be, in each case in accordance with L/C  Issuer’s usual and customary business practices.  Immediately upon the issuance of  each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from L/C Issuer a risk participation in such  Letter of Credit in an amount equal to the product of such Lender’s Applicable  Percentage times the amount of such Letter of Credit.  (iii) Promptly after its delivery of any Letter of Credit or any amendment  to a Letter of Credit to an advising bank with respect thereto or to the beneficiary  thereof, L/C Issuer will also deliver to the Borrower Representative and  Administrative Agent a true and complete copy of such Letter of Credit or  amendment.  (c) Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any  notice of a drawing under such Letter of Credit, L/C Issuer shall notify the Borrower  





 






  CREDIT AGREEMENT – Page 60    Representative and Administrative Agent thereof.  Not later than 11:00 a.m. on the  date of any payment by L/C Issuer under a Letter of Credit (each such date, an  “Honor Date”), Borrowers shall reimburse L/C Issuer through Administrative  Agent in an amount equal to the amount of such drawing.  If Borrowers fail to so  reimburse L/C Issuer by such time, Administrative Agent shall promptly notify  each Lender of the Honor Date, the amount of the unreimbursed drawing (the  “Unreimbursed Amount”), and the amount of such Lender’s Applicable  Percentage thereof.  In such event, Borrowers shall be deemed to have requested a  Revolving Credit Borrowing to be disbursed on the Honor Date in an amount equal  to the Unreimbursed Amount, subject to the amount of Availability and the  conditions set forth in Section 4.2 (other than the delivery of a Borrowing Request).   Any notice given by L/C Issuer or Administrative Agent pursuant to this  Section 2.2(c)(i) may be given by telephone if immediately confirmed in writing;  provided that the lack of such an immediate confirmation shall not affect the  conclusiveness or binding effect of such notice.  (ii) Each Lender shall upon any notice pursuant to Section 2.2(c)(i)  make funds available (and Administrative Agent may apply Cash Collateral  provided for this purpose) for the account of L/C Issuer at Administrative Agent’s  Principal Office in an amount equal to its Applicable Percentage of the  Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in  such notice by Administrative Agent, whereupon, subject to the provisions of  Section 2.2(c)(iii), each Lender that so makes funds available shall be deemed to  have made a Revolving Credit Loan (or, if the conditions set forth in Section 4.2  are not satisfied, an L/C Borrowing as further described in clause (iii) below) to  Borrowers in such amount.  Administrative Agent shall remit the funds so received  to L/C Issuer.  (iii) With respect to any Unreimbursed Amount that is not fully  refinanced by a Revolving Credit Borrowing because the conditions set forth in  Section 4.2 cannot be satisfied or for any other reason, Borrowers shall be deemed  to have incurred from L/C Issuer an L/C Borrowing in the amount of the  Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due  and payable on demand (together with interest) and shall bear interest at the Default  Interest Rate.  In such event, each Lender’s payment to Administrative Agent for  the account of L/C Issuer pursuant to Section 2.2(c)(ii) shall be deemed payment  in respect of its participation in such L/C Borrowing and shall constitute an L/C  Advance from such Lender in satisfaction of its participation obligation under this  Section 2.2.  (iv) Until each Lender funds its Revolving Credit Loan or L/C Advance  pursuant to this Section 2.2(c) to reimburse L/C Issuer for any amount drawn under  any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of  such amount shall be solely for the account of L/C Issuer.  (v) Each Lender’s obligation to make Revolving Credit Loans or L/C  Advances to reimburse L/C Issuer for amounts drawn under Letters of Credit, as  





 






  CREDIT AGREEMENT – Page 61    contemplated by this Section 2.2(c), shall be absolute and unconditional and shall  not be affected by any circumstance, including (A) any setoff, counterclaim,  recoupment, defense or other right which such Lender may have against L/C Issuer,  Borrowers or any other Person for any reason whatsoever, (B) the occurrence or  continuance of a Default, or (C) any other occurrence, event or condition, whether  or not similar to any of the foregoing; provided, however, that each Lender’s  obligation to make Revolving Credit Loans (but not its obligation to fund it pro rata  share of L/C Advances) pursuant to this Section 2.2(c) is subject to the conditions  set forth in Section 4.2 (other than delivery by the Borrower Representative of a  Borrowing Request).  No such making of an L/C Advance shall relieve or otherwise  impair the obligation of Borrowers to reimburse L/C Issuer for the amount of any  payment made by L/C Issuer under any Letter of Credit, together with interest as  provided herein.  (vi) If any Lender fails to make available to Administrative Agent for  the account of L/C Issuer any amount required to be paid by such Lender pursuant  to the foregoing provisions of this Section 2.2(c) by the time specified in  Section 2.2(c)(ii), then, without limiting the other provisions of this Agreement,  L/C Issuer shall be entitled to recover from such Lender (acting through  Administrative Agent), on demand, such amount with interest thereon for the period  from the date such payment is required to the date on which such payment is  immediately available to L/C Issuer at a rate per annum equal to the greater of the  Federal Funds Rate and a rate determined by L/C Issuer in accordance with banking  industry rules on interbank compensation, plus any administrative, processing or  similar fees customarily charged by L/C Issuer in connection with the foregoing.   If such Lender pays such amount (with interest and fees as aforesaid), the amount  so paid shall constitute such Lender’s Revolving Credit Loan included in the  relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C  Borrowing, as the case may be.  A certificate of L/C Issuer submitted to any Lender  (through Administrative Agent) with respect to any amounts owing under this  clause (vi) shall be conclusive absent manifest error.  (d) Repayment of Participations.  (i) At any time after L/C Issuer has made a payment under any Letter  of Credit and has received from any Lender such Lender’s L/C Advance in respect  of such payment in accordance with Section 2.2(c), if Administrative Agent  receives for the account of L/C Issuer any payment in respect of the related  Unreimbursed Amount or interest thereon (whether directly from Borrowers or  otherwise, including proceeds of Cash Collateral applied thereto by Administrative  Agent), Administrative Agent will distribute to such Lender its Applicable  Percentage thereof in the same funds as those received by Administrative Agent.  (ii) If any payment received by Administrative Agent for the account of  L/C Issuer pursuant to Section 2.2(c)(i) is required to be returned under any of the  circumstances described in Section 11.23 (including pursuant to any settlement  entered into by L/C Issuer in its discretion), each Lender shall pay to Administrative  





 






  CREDIT AGREEMENT – Page 62    Agent for the account of L/C Issuer its Applicable Percentage thereof on demand  of Administrative Agent, plus interest thereon from the date of such demand to the  date such amount is returned by such Lender, at a rate per annum equal to the  Federal Funds Rate from time to time in effect.  The obligations of Lenders under  this clause (ii) shall survive the payment in full of the Obligations and the  termination of this Agreement.  (e) Obligations Absolute.  The obligation of Borrowers to reimburse L/C  Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall  be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the  terms of this Agreement under all circumstances, including the following:  (i) any lack of validity or enforceability of such Letter of Credit, this  Agreement, or any other Loan Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other  right that any Borrower or any Subsidiary may have at any time against any  beneficiary or any transferee of such Letter of Credit (or any Person for whom any  such beneficiary or any such transferee may be acting), L/C Issuer or any other  Person, whether in connection with this Agreement, the transactions contemplated  hereby or by such Letter of Credit or any agreement or instrument relating thereto,  or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under  such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any  respect or any statement therein being untrue or inaccurate in any respect; or any  loss or delay in the transmission or otherwise of any document required in order to  make a drawing under such Letter of Credit;  (iv) waiver by L/C Issuer of any requirement that exists for L/C Issuer’s  protection and not the protection of a Borrower or any waiver by L/C Issuer which  does not in fact materially prejudice such Borrower;  (v) honor of a demand for payment presented electronically even if such  Letter of Credit requires that demand be in the form of a draft;  (vi) any payment made by L/C Issuer in respect of an otherwise  complying item presented after the date specified as the expiration date of, or the  date by which documents must be received under such Letter of Credit if  presentation after such date is authorized by the UCC or the ISP, as applicable;  (vii) any payment by L/C Issuer under such Letter of Credit against  presentation of a draft or certificate that does not strictly comply with the terms of  such Letter of Credit; or any payment made by L/C Issuer under such Letter of  Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,  assignee for the benefit of creditors, liquidator, receiver or other representative of  or successor to any beneficiary or any transferee of such Letter of Credit, including  any arising in connection with any proceeding under any Debtor Relief Law; or  





 






  CREDIT AGREEMENT – Page 63    (viii) any other circumstance or happening whatsoever, whether or not  similar to any of the foregoing, including any other circumstance that might  otherwise constitute a defense available to, or a discharge of, any Borrower or any  Subsidiary.  The applicable Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of  noncompliance with such Borrower’s instructions or other irregularity, such Borrower will  immediately notify L/C Issuer.  Each Borrower shall be conclusively deemed to have  waived any such claim against L/C Issuer and its correspondents unless such notice is given  as aforesaid.  (f) Role of L/C Issuer.  Each Lender and each Borrower agree that, in paying  any drawing under a Letter of Credit, L/C Issuer shall not have any responsibility to obtain  any document (other than any sight draft, certificates and documents expressly required by  the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such  document or the authority of the Person executing or delivering any such document.  None  of L/C Issuer, Administrative Agent, any of their respective Related Parties nor any  correspondent, participant or assignee of L/C Issuer shall be liable to any Lender for (i) any  action taken or omitted in connection herewith at the request or with the approval of  Required Lenders; (ii) any action taken or omitted in the absence of gross negligence or  willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of  any document or instrument related to any Letter of Credit or Issuer Document.  Each  Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee  with respect to its use of any Letter of Credit; provided, however, that this assumption is  not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies  as it may have against the beneficiary or transferee at law or under any other agreement.   None of L/C Issuer, Administrative Agent, any of their respective Related Parties nor any  correspondent, participant or assignee of L/C Issuer shall be liable or responsible for any  of the matters described in clauses (i) through (viii) of Section 2.2(e); provided, however,  that anything in such clauses to the contrary notwithstanding, each Borrower may have a  claim against L/C Issuer, and L/C Issuer may be liable to such Borrower, to the extent, but  only to the extent, of any direct, as opposed to consequential or exemplary, damages  suffered by such Borrower which such Borrower proves were directly caused by L/C  Issuer’s willful misconduct or gross negligence or L/C Issuer’s willful failure to pay under  any Letter of Credit after the presentation to it by the beneficiary of a sight draft and  certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In  furtherance and not in limitation of the foregoing, L/C Issuer may accept documents that  appear on their face to be in order, without responsibility for further investigation,  regardless of any notice or information to the contrary, and L/C Issuer shall not be  responsible for the validity or sufficiency of any instrument transferring or assigning or  purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or  proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any  reason.  L/C Issuer may send a Letter of Credit or conduct any communication to or from  the beneficiary via the Society for Worldwide Interbank Financial Telecommunication  message or overnight courier, or any other commercially reasonable means of  communicating with a beneficiary.  





 






  CREDIT AGREEMENT – Page 64    (g) Applicability of ISP; Limitation of Liability.  Unless otherwise expressly  agreed by L/C Issuer and the applicable Borrower when a Letter of Credit is issued,  the  rules of the ISP shall apply to each standby Letter of Credit.  Notwithstanding the  foregoing, L/C Issuer shall not be responsible to any Borrower for, and L/C Issuer’s rights  and remedies against such Borrower shall not be impaired by, any action or inaction of L/C  Issuer required or permitted under any Law, order, or practice that is required or permitted  to be applied to any Letter of Credit or this Agreement, including the Law or any order of  a jurisdiction where L/C Issuer or the beneficiary is located, the practice stated in the ISP,  or in the decisions, opinions, practice statements, or official commentary of the ICC  Banking Commission, the Bankers Association for Finance and Trade - International  Financial Services Association (BAFT-IFSA), or the Institute of International Banking  Law & Practice, whether or not any Letter of Credit or other Issuer Document chooses such  Law or practice.  (h) Fronting Fee and Documentary and Processing Charges Payable to  L/C Issuer.  Borrowers shall pay directly to L/C Issuer for its own account a fronting fee  at the rate per annum separately agreed between applicable Borrower and L/C Issuer,  computed on the daily amount available to be drawn under such Letter of Credit and  payable on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the  first day after the end of each March, June, September and December in respect of the most  recently-ended quarterly period (or portion thereof, in the case of the first payment),  commencing with the first such date to occur after the issuance of such Letter of Credit, on  the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing  the daily amount available to be drawn under any Letter of Credit, the amount of such  Letter of Credit shall be determined in accordance with Section 1.4.  In addition, Borrowers  shall pay directly to L/C Issuer for its own account the customary issuance, presentation,  amendment and other processing fees, and other standard costs and charges, of L/C Issuer  relating to letters of credit as from time to time in effect.  Such customary fees and standard  costs and charges are due and payable on demand and are nonrefundable.  (i) Conflict with Issuer Documents.  In the event of any conflict between the  terms hereof and the terms of any Issuer Document, the terms hereof shall control.  Section 2.3 Swing Line Loans.  (a) The Swing Line.  Subject to the terms and conditions set forth herein,  Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this  Section 2.3, may in its sole discretion make loans (each such loan, a “Swing Line Loan”)  to any Borrower from time to time on any Business Day during the period from the Closing  Date to the Maturity Date in an aggregate amount not to exceed at any time outstanding  the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line  Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of  Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender,  may exceed the amount of such Lender’s Commitment; provided, however, that  (i) immediately after giving effect to any Swing Line Loan, (A) the Revolving Credit  Exposure of all Lenders shall not exceed the Line Cap in effect at such time, and (B) except  as provided above with respect to the Swing Line Lender, the Revolving Credit Exposure  





 






  CREDIT AGREEMENT – Page 65    of any Lender shall not exceed such Lender’s Commitment, (ii) no Borrower shall use the  proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (iii)  Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it  shall determine (which determination shall be in its sole discretion) that it has, or by such  Credit Extension may have, Fronting Exposure.  Within the foregoing limits, and subject  to the other terms and conditions hereof, each Borrower may borrow under this Section 2.3,  prepay under Section 2.9(b), and reborrow under this Section 2.3.  Each Swing Line Loan  shall bear interest as a Base Rate Loan.  Immediately upon the making of a Swing Line  Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees  to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an  amount equal to the product of such Lender’s Applicable Percentage times the amount of  such Swing Line Loan.  (b) Borrowing Procedures.  Each Swing Line Borrowing shall be made upon  the Borrower Representative’s irrevocable notice to Swing Line Lender and Administrative  Agent, which may be given by telephone. Each such notice must be received by Swing  Line Lender and Administrative Agent not later than 1:00 p.m. on the requested borrowing  date, and shall specify (i) the amount to be borrowed, which shall be a minimum of  $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such  telephonic notice must be confirmed promptly by delivery to Swing Line Lender and  Administrative Agent of a written Swing Line Loan Request, appropriately completed and  signed by a Responsible Officer of the Borrower Representative.  Any telephonic request  for a Swing Line Loan by the Borrower Representative shall be promptly confirmed by  submission of a properly completed Swing Line Loan Request, signed by a Responsible  Officer of the Borrower Representative, to Swing Line Lender and Administrative Agent,  but failure to deliver a Swing Line Loan Request shall not be a defense to payment of any  Swing Line Borrowing.  Neither Swing Line Lender nor Administrative Agent shall have  any liability to any Borrower for any loss or damage suffered by such Borrower as a result  of Swing Line Lender’s or Administrative Agent’s honoring of any requests, execution of  any instructions, authorizations or agreements or reliance on any reports communicated to  it telephonically, by facsimile or electronically and purporting to have been sent to Swing  Line Lender or Administrative Agent by such Borrower and neither Swing Line Lender  nor Administrative Agent shall have any duty to verify the origin of any such  communication or the identity or authority of the Person sending it.  Promptly after receipt  by Swing Line Lender of any telephonic Swing Line Loan Request, Swing Line Lender  will confirm with Administrative Agent (by telephone or in writing) that Administrative  Agent has also received such Swing Line Loan Request and, if not, Swing Line Lender  will notify Administrative Agent (by telephone or in writing) of the contents thereof.   Unless Swing Line Lender has received notice (by telephone or in writing) from  Administrative Agent  prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing  (A) directing Swing Line Lender not to make such Swing Line Loan as a result of the  limitations set forth in the first proviso to the first sentence of Section 2.3(a), or (B) that  one or more of the applicable conditions specified in Article 4 is not then satisfied, then,  subject to the terms and conditions hereof, Swing Line Lender may, not later than 3:00  p.m. on the borrowing date specified in such Swing Line Loan Request, make the amount  of its Swing Line Loan available to the applicable Borrower at its office by crediting the  





 






  CREDIT AGREEMENT – Page 66    account of such Borrower on the books of Swing Line Lender in immediately available  funds.  (c) Refinancing of Swing Line Loans.  (i) Swing Line Lender at any time in its sole discretion may request, on  behalf of Borrowers (which hereby irrevocably authorize Swing Line Lender to so  request on its behalf), that each Lender make a Revolving Credit Loan in an amount  equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans  then outstanding.  Such request shall be made in writing (which written request  shall be deemed to be a Borrowing Request for purposes hereof) and in accordance  with the requirements of Section 2.1, subject to Availability and the conditions set  forth in Section 4.2.  Swing Line Lender shall furnish the Borrower Representative  with a copy of the applicable Borrowing Request promptly after delivering such  notice to Administrative Agent.  Each Lender shall make an amount equal to its  Applicable Percentage of the amount specified in such Borrowing Request  available to Administrative Agent in immediately available funds (and  Administrative Agent may apply Cash Collateral available with respect to the  applicable Swing Line Loan) for the account of Swing Line Lender at  Administrative Agent’s Principal Office not later than 1:00 p.m. on the day  specified in such Borrowing Request, whereupon, subject to Section 2.3(c)(ii), each  Lender that so makes funds available shall be deemed to have made a Revolving  Credit Loan to Borrowers in such amount.  Administrative Agent shall remit the  funds so received to Swing Line Lender.  (ii) If for any reason any Swing Line Loan cannot be refinanced by such  a Revolving Credit Borrowing in accordance with Section 2.3(c)(i), the request for  Revolving Credit Loans submitted by Swing Line Lender as set forth herein shall  be deemed to be a request by Swing Line Lender that each Lender fund its risk  participation in the relevant Swing Line Loan and each Lender’s payment to  Administrative Agent for the account of Swing Line Lender pursuant to  Section 2.3(c)(i) shall be deemed payment in respect of such participation.  (iii) If any Lender fails to make available to Administrative Agent for  the account of Swing Line Lender any amount required to be paid by such Lender  pursuant to the foregoing provisions of this Section 2.3(c) by the time specified in  Section 2.3(c)(i), Swing Line Lender shall be entitled to recover from such Lender  (acting through Administrative Agent), on demand, such amount with interest  thereon for the period from the date such payment is required to the date on which  such payment is immediately available to Swing Line Lender at a rate per annum  equal to the greater of the Federal Funds Rate and a rate determined by Swing Line  Lender in accordance with banking industry rules on interbank compensation, plus  any administrative, processing or similar fees customarily charged by Swing Line  Lender in connection with the foregoing.  If such Lender pays such amount (with  interest and fees as aforesaid), the amount so paid shall constitute such Lender’s  Revolving Credit Loan included in the relevant Revolving Credit Borrowing or  funded participation in the relevant Swing Line Loan, as the case may be.  A  





 






  CREDIT AGREEMENT – Page 67    certificate of Swing Line Lender submitted to any Lender (through Administrative  Agent) with respect to any amounts owing under this clause (iii) shall be conclusive  absent manifest error.  (iv) Each Lender’s obligation to make Revolving Credit Loans or to  purchase and fund risk participations in Swing Line Loans pursuant to this  Section 2.3(c) shall be absolute and unconditional and shall not be affected by any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other  right which such Lender may have against Swing Line Lender, Borrowers or any  other Person for any reason whatsoever, (B) the occurrence or continuance of a  Default, or (C) any other occurrence, event or condition, whether or not similar to  any of the foregoing; provided, however, that each Lender’s obligation to make  Revolving Credit Loans pursuant to this Section 2.3(c) is subject to Availability  and the conditions set forth in Section 4.2.  No such funding of risk participations  shall relieve or otherwise impair the obligation of Borrowers to repay Swing Line  Loans, together with interest as provided herein.  (d) Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk  participation in a Swing Line Loan, if Swing Line Lender receives any payment on  account of such Swing Line Loan, Swing Line Lender will distribute to such Lender  its Applicable Percentage thereof in the same funds as those received by Swing  Line Lender.  (ii) If any payment received by Swing Line Lender in respect of  principal or interest on any Swing Line Loan is required to be returned by Swing  Line Lender under any of the circumstances described in Section 11.23 (including  pursuant to any settlement entered into by Swing Line Lender in its discretion),  each Lender shall pay to Swing Line Lender its Applicable Percentage thereof on  demand of Administrative Agent, plus interest thereon from the date of such  demand to the date such amount is returned, at a rate per annum equal to the Federal  Funds Rate.  Administrative Agent will make such demand upon the request of  Swing Line Lender.  The obligations of Lenders under this clause (ii) shall survive  the payment in full of the Obligations and the termination of this Agreement.  (e) Interest for Account of Swing Line Lender.  Swing Line Lender shall be  responsible for invoicing Borrowers for interest on the Swing Line Loans.  Until each  Lender funds its Revolving Credit Loan or risk participation pursuant to this Section 2.3 to  refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect  of such Applicable Percentage shall be solely for the account of Swing Line Lender.  (f) Payments to Swing Line Lender or Lenders.  Borrowers shall make all  payments of principal and interest in respect of the Swing Line Loans to Administrative  Agent for the account of Swing Line Lender or Lenders, as applicable.  Section 2.4 Fees.  





 






  CREDIT AGREEMENT – Page 68    (a) Fees.  Borrowers agree to pay to Administrative Agent and Arranger, for  the account of Administrative Agent, Arranger and each Lender, as applicable, fees, in the  amounts and on the dates set forth in any Fee Letter.  (b) Letter of Credit Fees.  Borrowers shall pay to Administrative Agent for  the account of each Lender in accordance, subject to Section 11.21, with its Applicable  Percentage a Letter of Credit fee (the “Letter of Credit Fee”) equal to the Applicable  Margin for Eurodollar Rate Loans Term SOFR Loans (or, for any date of determination  prior to the First Amendment Effective Date, “Eurodollar Loans” (under and as defined in  this Agreement immediately prior to giving effect to the First Amendment)) times the daily  amount available to be drawn under such Letter of Credit.  For purposes of computing the  daily amount available to be drawn under any Letter of Credit, the amount of such Letter  of Credit shall be determined in accordance with Section 1.4.   Letter of Credit Fees shall  be (i) due and payable in arrears on the first day after the end of each March, June,  September and December, commencing with the first such date to occur after the issuance  or renewal of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter  on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the  Applicable Margin for Eurodollar Rate Term SOFR Loans during any quarter, the daily  amount available to be drawn under each standby Letter of Credit shall be computed and  multiplied by the Applicable Margin for Eurodollar Rate Term SOFR Loan separately for  each period during such quarter that such Applicable Margin for Eurodollar Rate Term  SOFR Loans was in effect.  Notwithstanding anything to the contrary contained herein  while any Event of Default is continuing, all Letter of Credit Fees shall accrue at the  Default Interest Rate.  (c) Commitment Fees.  Borrowers agree to pay to Administrative Agent for  the account of each Lender in accordance, subject to Section 11.21, with its Applicable  Percentage a commitment fee on the daily average unused amount of the Commitment of  such Lender for the period from and including the date of this Agreement to and including  the Maturity Date (including at any time during which one or more of the conditions in  Article 4 is not met), at a rate equal to the Applicable Margin applicable to commitment  fees.  For the purpose of calculating the commitment fee hereunder, the Commitment of  each Lender shall be deemed utilized by the amount of all outstanding Revolving Credit  Loans and L/C Obligations owing to such Lender whether directly or by participation.   Accrued commitment fees shall be payable monthly in arrears on the first day of each and  every calendar month during the term of this Agreement and on the Maturity Date.  Section 2.5 Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments of principal, interest, and other amounts to be made  by any Borrower under this Agreement and the other Loan Documents shall be made to  Administrative Agent for the account of Administrative Agent, L/C Issuer, or Swing Line  Lender or the pro rata accounts of the applicable Lenders, as applicable, at the Principal  Office in Dollars and immediately available funds, without setoff, deduction, or  counterclaim, and free and clear of all taxes at the time and in the manner provided herein.   Payments by check or draft shall not constitute payment in immediately available funds  until the required amount is actually received by Administrative Agent in full.  Payments  





 






  CREDIT AGREEMENT – Page 69    in immediately available funds received by Administrative Agent in the place designated  for payment on a Business Day prior to 11:00 a.m. at such place of payment shall be  credited prior to the close of business on the Business Day received, while payments  received by Administrative Agent on a day other than a Business Day or after 11:00 a.m.  on a Business Day shall not be credited until the next succeeding Business Day.  If any  payment of principal or interest on the Notes shall become due and payable on a day other  than a Business Day, then such payment shall be made on the next succeeding Business  Day.  Any such extension of time for payment shall be included in computing interest  which has accrued and shall be payable in connection with such payment.  Administrative  Agent is hereby authorized upon notice to the Borrower Representative to charge the  account of Borrowers maintained with Administrative Agent for each payment of principal,  interest and fees as it becomes due hereunder.  (b) Funding by Lenders; Presumption by Administrative Agent.  Unless  Administrative Agent shall have received notice from a Lender that such Lender will not  make available to Administrative Agent such Lender’s share of a Borrowing,  Administrative Agent may assume that such Lender has made such share available on such  date in accordance with this Agreement and may, in reliance upon such assumption, make  available to Borrowers a corresponding amount.  In such event, if a Lender has not in fact  made its share of the applicable Borrowing available to Administrative Agent, then the  applicable Lender and Borrowers severally agree to pay to Administrative Agent forthwith  on demand such corresponding amount with interest thereon, for each day from and  including the date such amount is made available to Borrowers to but excluding the date  of payment to Administrative Agent, at (i) in the case of a payment to be made by such  Lender, the greater of the Federal Funds Rate and a rate determined by Administrative  Agent in accordance with banking industry rules on interbank compensation, and (ii) in the  case of a payment to be made by Borrowers, the interest rate applicable to the applicable  Borrowing.  If Borrowers and such Lender shall pay such interest to Administrative Agent  for the same or an overlapping period, Administrative Agent shall promptly remit to  Borrowers the amount of such interest paid by Borrowers for such period.  If such Lender  pays its share of the applicable Borrowing to Administrative Agent, then the amount so  paid shall constitute such Lender’s Loan.  Any payment by Borrowers shall be without  prejudice to any claim Borrowers may have against a Lender that shall have failed to make  such payment to Administrative Agent.  (c) Payments by Borrowers; Presumption by Administrative Agent.   Unless Administrative Agent shall have received notice from the Borrower Representative  prior to the date on which any payment is due to Administrative Agent for the account of  L/C Issuer, Swing Line Lender or the applicable Lenders hereunder that  Borrowers will  not make such payment, Administrative Agent may assume that Borrowers have made such  payment on such date in accordance herewith and may, in reliance upon such assumption,  distribute to L/C Issuer, Swing Line Lender or the applicable Lenders the amount due.  In  such event, if Borrowers have not in fact made such payment, then each of L/C Issuer,  Swing Line Lender and the applicable Lenders, as applicable, severally agrees to repay to  Administrative Agent forthwith on demand the amount so distributed to L/C Issuer, Swing  Line Lender, or such Lender, with interest thereon, for each day from and including the  date such amount is distributed to it to but excluding the date of payment to Administrative  





 






  CREDIT AGREEMENT – Page 70    Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative  Agent in accordance with banking industry rules on interbank compensation.  (d) Cash Dominion.  Subject to Section 6.12, during any Trigger Period, all  funds credited to the Blocked Accounts shall be promptly applied by Administrative Agent  to the Obligations whether or not such Obligations shall have, by its terms, matured, such  application to be made to principal or interest or expenses as Administrative Agent may  elect; provided, however, Administrative Agent need not apply or give credit for any item  included in such sums until one Business Day after the final collection thereof; provided,  further, however, that Administrative Agent’s failure to so apply any such sums shall not  be a waiver of Administrative Agent’s right to so apply such sums or any other sums at any  time during a Trigger Period.  Notwithstanding anything herein to the contrary, to the  extent any funds credited to the Blocked Accounts constitute Net Cash Proceeds (i) from  any Disposition not otherwise permitted by Section 7.8 or (ii) from the incurrence of any  Debt not permitted by Section 7.1, the application of such Net Cash Proceeds shall be  subject to Section 2.9(c).   Section 2.6 Evidence of Debt.  (a) The Loans made by Swing Line Lender and each Lender shall be evidenced  by one or more accounts or records maintained by Swing Line Lender or such Lender and  by Administrative Agent in the ordinary course of business; provided that such Lender or  Administrative Agent may, in addition, request that such Loans be evidenced by the Notes.   The Credit Extensions made by L/C Issuer shall be evidenced by one or more accounts or  records maintained by L/C Issuer and by Administrative Agent in the ordinary course of  business.  The accounts or records maintained by Administrative Agent, Swing Line  Lender, L/C Issuer, and each Lender shall be conclusive absent manifest error of the  amount of the Credit Extensions made to any Borrower and the interest and payments  thereon.  Any failure to so record or any error in doing so shall not, however, limit or  otherwise affect the obligation of any Borrower hereunder to pay any amount owing with  respect to the Obligations.  In the event of any conflict between the accounts and records  maintained by L/C Issuer, Swing Line Lender, or any Lender and the accounts and records  of Administrative Agent in respect of such matters, the accounts and records of  Administrative Agent shall control in the absence of manifest error.  (b) In addition to the accounts and records referred to in subsection (a) above,  each Lender and Administrative Agent shall maintain in accordance with its usual practice  accounts or records evidencing the purchases and sales by such Lender of participations in  Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts  and records maintained by Administrative Agent and the accounts and records of any  Lender in respect of such matters, the accounts and records of Administrative Agent shall  control in the absence of manifest error.  Section 2.7 Cash Collateral.  (a) Certain Credit Support Events.  Subject to Section 11.21(a)(iv), if (i) L/C  Issuer has honored any full or partial drawing request under any Letter of Credit and such  





 






  CREDIT AGREEMENT – Page 71    drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date,  any L/C Obligation for any reason remains outstanding, or (iii) any Borrower shall be  required to provide Cash Collateral pursuant to Section 9.2, Borrowers shall immediately  (in the case of clause (iii) above) or within one (1) Business Day (in all other cases)  following any request by Administrative Agent or L/C Issuer, provide Cash Collateral in  an amount not less than the applicable Minimum Collateral Amount.  (b) Grant of Security Interest.  Each Borrower, and to the extent provided by  any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the  control of) Administrative Agent, for the benefit of Administrative Agent, L/C Issuer and  Lenders, and agrees to maintain, a first priority security interest in all such Cash Collateral,  and all other Property so provided as Collateral pursuant hereto, and in all proceeds of the  foregoing, all as security for the obligations to which such Cash Collateral may be applied  pursuant to Section 2.7(c).  If at any time Administrative Agent determines that Cash  Collateral is subject to any right or claim of any Person other than Administrative Agent  or L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less  than the Minimum Collateral Amount, Borrowers will, promptly upon demand by  Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral  in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit  support not constituting funds subject to deposit) shall be maintained in one or more  blocked, non-interest bearing deposit accounts at Texas Capital Bank.  Borrowers shall pay  on demand therefor from time to time all customary account opening, activity and other  administrative fees and charges in connection with the maintenance and disbursement of  Cash Collateral.  (c) Application.  Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.7 or Sections 2.2, 9.2 or  11.21 in respect of Letters of Credit shall be held and applied to the satisfaction of the  specific L/C Obligations, obligations to fund participations therein (including, as to Cash  Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and  other obligations for which the Cash Collateral was so provided, prior to any other  application of such Property as may otherwise be provided for herein.  (d) Release.  Cash Collateral (or the appropriate portion thereof) provided to  reduce Fronting Exposure or to secure other obligations shall be released promptly  following (i) the elimination of the applicable Fronting Exposure or other obligations  giving rise thereto, including by the termination of Defaulting Lender status of the  applicable Lender (or, as appropriate, its assignee following compliance with  Section 11.8(b)(vii)) or (ii) the determination by Administrative Agent and L/C Issuer that  there exists excess Cash Collateral; provided, however, (x) any such release shall be  without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and  remain subject to, any other Lien conferred under the Loan Documents and the other  applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral  and L/C Issuer may agree that Cash Collateral shall not be released but instead held to  support future anticipated Fronting Exposure or other obligations.  Section 2.8 Interest; Payment Terms.  





 






  CREDIT AGREEMENT – Page 72    (a) Revolving Credit Loans – Payment of Principal and Interest; Revolving  Nature.  The unpaid principal amount of each Borrowing of the Revolving Credit Loans  shall, subject to the following sentence and Section 2.8(e), bear interest at the Applicable  Rate.  If at any time such rate of interest would exceed the Maximum Rate but for the  provisions thereof limiting interest to the Maximum Rate, then any subsequent reduction  shall not reduce the rate of interest on the Revolving Credit Loans below the Maximum  Rate until the aggregate amount of interest accrued on the Revolving Credit Loans equals  the aggregate amount of interest which would have accrued on the Revolving Credit Loans  if the interest rate had not been limited by the Maximum Rate.  All accrued but unpaid  interest on the principal balance of the Revolving Credit Loans shall be payable on each  Payment Date and on the Maturity Date, provided that interest accruing at the Default  Interest Rate pursuant to Section 2.8(e) shall be payable on demand.  The then Outstanding  Amount of the Revolving Credit Loans and all accrued but unpaid interest thereon shall be  due and payable on the Maturity Date.  The unpaid principal balance of the Revolving  Credit Loans at any time shall be the total amount advanced hereunder by Lenders less the  amount of principal payments made thereon by or for Borrowers, which balance may be  endorsed on the Notes from time to time by Lenders or Swing Line Lender, as applicable,  or otherwise noted in Lenders’, Swing Line Lender’s and/or Administrative Agent’s  records, which notations shall be, absent manifest error, conclusive evidence of the  amounts owing hereunder from time to time.  (b) Computation Period.  Interest on the Loans and all other amounts payable  by Borrowers hereunder on a per annum basis shall be computed on the basis of a 360-day  year and the actual number of days elapsed (including the first day but excluding the last  day) unless such calculation would result in a usurious rate or to the extent such Loan bears  interest based upon the Base Rate, in which case interest shall be calculated on the basis of  a 365-day year or 366-day year, as the case may be.  In computing the number of days  during which interest accrues, the day on which funds are initially advanced shall be  included regardless of the time of day such advance is made, and the day on which funds  are repaid shall be included unless repayment is credited prior to the close of business on  the Business Day received.  Each determination by Administrative Agent of an interest rate  or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.  (c) Unconditional Payment.  Each Borrower is and shall be obligated to pay  all principal, interest and any and all other amounts which become payable under any of  the Loan Documents absolutely and unconditionally and without any abatement,  postponement, diminution or deduction whatsoever and without any reduction for  counterclaim or setoff whatsoever.  If at any time any payment received by Administrative  Agent hereunder shall be deemed by a court of competent jurisdiction to have been a  voidable preference or fraudulent conveyance under any Debtor Relief Law, then the  obligation to make such payment shall survive any cancellation or satisfaction of the  Obligations under the Loan Documents and shall not be discharged or satisfied with any  prior payment thereof or cancellation of such Obligations, but shall remain a valid and  binding obligation enforceable in accordance with the terms and provisions hereof, and  such payment shall be immediately due and payable upon demand.  





 






  CREDIT AGREEMENT – Page 73    (d) Partial or Incomplete Payments.  Subject to Section 9.3, if at any time  insufficient funds are received by and available to Administrative Agent to pay fully all  amounts of principal, L/C Borrowings, interest, fees and other amounts then due hereunder,  such funds shall be applied (i) first, to pay interest, fees and other amounts then due  hereunder, ratably among the parties entitled thereto in accordance with the amounts of  interest, fees and other amounts then due to such parties, and (ii) second, to pay principal  and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in  accordance with the amounts of principal or L/C Borrowings, as applicable, then due to  such parties.  Remittances in payment of any part of the Obligations under the Loan  Documents other than in the required amount in immediately available funds at the place  where such Obligations are payable shall not, regardless of any receipt or credit issued  therefor, constitute payment until the required amount is actually received by  Administrative Agent in full in accordance herewith and shall be made and accepted  subject to the condition that any check or draft may be handled for collection in accordance  with the practice of the collecting bank or banks.  Acceptance by Administrative Agent of  any payment in an amount less than the full amount then due shall be deemed an acceptance  on account only, and the failure to pay the entire amount then due shall be and continue to  be an Event of Default.  (e) Default Interest Rate.  For so long as any Event of Default has occurred  and is continuing, regardless of whether or not there has been an acceleration of the Loans,  and at all times after the maturity of the Loans (whether by acceleration or otherwise), and  in addition to all other rights and remedies of Administrative Agent or Lenders hereunder,  (i) interest shall accrue on the Outstanding Amount of the Loans at the Default Interest  Rate, (ii) interest shall accrue on any past due amount (other than the Outstanding Amount  of the Loans) at the Default Interest Rate and (iii) upon the request of the Required Lenders,  interest shall accrue on the principal amount of all other outstanding Obligations at the  Default Interest Rate, and such accrued interest shall be immediately due and payable.   Each Borrower acknowledges that it would be extremely difficult or impracticable to  determine Administrative Agent’s or Lenders’ actual damages resulting from any late  payment or Event of Default, and such accrued interest are reasonable estimates of those  damages and do not constitute a penalty.  (f) Term SOFR Conforming Changes.  In connection with the use or  administration of Term SOFR, the Administrative Agent will have the right to make  Conforming Changes from time to time and, notwithstanding anything to the contrary  herein or in any other Loan Document, any amendments implementing such Conforming  Changes will become effective without any further action or consent of any other party to  this Agreement or any other Loan Document.  The Administrative Agent will promptly  notify the Borrower Representative and the Lenders of the effectiveness of any Conforming  Changes in connection with the use or administration of Term SOFR.  Section 2.9 Voluntary Termination or Reduction of Commitments; Prepayments.  (a) Voluntary Termination or Reduction of Commitments.  The Borrower  Representative may, upon written notice to Administrative Agent, terminate the  Commitments, or from time to time permanently reduce the Commitments; provided that  





 






  CREDIT AGREEMENT – Page 74    (i) any such notice shall be received by Administrative Agent not later than 11:00 a.m.  three (3) Business Days prior to the date of termination or reduction, (ii) any such partial  reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000  in excess thereof,  (iii) the Borrower Representative shall not terminate or reduce the  Commitments if, immediately after giving effect thereto and to any concurrent  prepayments hereunder, the Revolving Credit Exposure of all Lenders would exceed the  Line Cap in effect at such time and (iv) if, immediately after giving effect to any reduction  of the Commitments, the Letter of Credit Sublimit or Swing Line Sublimit exceeds the  amount of the Revolving Credit Facility, such sublimit shall be automatically reduced by  the amount of such excess.  Administrative Agent will promptly notify Lenders of any such  notice of termination or reduction of the Commitments.  Any reduction of the  Commitments shall be applied to the Commitment of each Lender according to its  Applicable Percentage.  All fees accrued until the effective date of any termination of the  Commitments shall be paid on the effective date of such termination.  (b) Voluntary Prepayments.  Subject to the conditions set forth below,  Borrowers shall have the right, at any time and from time to time upon at least three (3)  Business Days prior written notice to Administrative Agent, to prepay the principal of the  Revolving Credit Loans or the Swing Line Loans in full or in part.  If there is a prepayment  of all or any portion of the principal of the Revolving Credit Loans or the Swing Line Loans  on or before the Maturity Date, whether voluntary or because of acceleration or otherwise,  such prepayment shall also include any and all accrued but unpaid interest on the amount  of principal being so prepaid through and including the date of prepayment, plus any other  sums which have become due to Lenders under the other Loan Documents on or before the  date of prepayment, but which have not been fully paid.  (c) Mandatory Prepayment of Revolving Credit Facility.  Borrowers shall  make a prepayment of the Revolving Credit Loans or the Swing Line Loans upon the  occurrence of any of the following:  (i) If at any time the Revolving Credit Exposure of the Lenders exceeds  the Line Cap in effect at such time, then Borrowers shall immediately prepay the  entire amount of such excess to Administrative Agent, for the ratable account of  Lenders, and/or Cash Collateralize the L/C Obligations in an aggregate amount  equal to such excess; provided, however, that no Borrower shall be required to Cash  Collateralize the L/C Obligations pursuant to this Section 2.9(c) unless after the  prepayment in full of the Revolving Credit Loans and Swing Line Loans the  Revolving Credit Exposure of the Lenders exceeds the Line Cap in effect at such  time.  (ii) Concurrently with the receipt by any Loan Party of any Net Cash  Proceeds from a Disposition not permitted by Section 7.8, the Borrowers shall  prepay the Loans in an amount equal to 100% of such Net Cash Proceeds.  (iii) Concurrently with the receipt by any Loan Party of any Net Cash  Proceeds from the incurrence of any Debt not permitted by Section 7.1, the  





 






  CREDIT AGREEMENT – Page 75    Borrowers shall prepay the Loans in an amount equal to 100% of such Net Cash  Proceeds.  Each prepayment required by this Section 2.9(c) shall be applied, first, to any Base Rate  Borrowings then outstanding, and, second, to any Eurodollar Rate Term SOFR Borrowings then  outstanding, and if more than one Eurodollar Rate (1) Term SOFR Borrowing is then outstanding,  to such Eurodollar Rate Term SOFR Borrowings in such order as the Borrower Representative  may direct, or if the Borrower Representative fails to so direct, as Administrative Agent shall elect.  Section 2.10 Uncommitted Increase in Revolving Credit Commitments.  (a) Request for Increase.  Provided no Event of Default has occurred and is  continuing, upon notice to Administrative Agent (which shall promptly notify the Lenders),  Borrowers may from time to time, request an increase in the aggregate Commitments by  an additional amount not to exceed $30,000,000; provided that (i) the aggregate  Commitments of the Lenders shall not exceed $50,000,000 after giving effect to all such  increases implemented pursuant to this Section 2.10, (ii) any such request for an increase  shall be in a minimum amount of $5,000,000 (or such lesser amount as may be agreed to  by the Administrative Agent in its sole discretion), and (iii) Borrowers may make a  maximum of three such requests.  To achieve the full amount of a requested increase, and  subject to the approval of Administrative Agent and L/C Issuer, Borrowers may (A) request  that one or more Lenders increase their Commitment, (B) invite all Lenders to increase  their respective Commitment, and/or (C) invite additional Eligible Assignees to become  Lenders pursuant to a joinder agreement in form and substance satisfactory to  Administrative Agent and its counsel.  (b) Notification by Administrative Agent; Additional Revolving Credit  Lenders.  In the event the Borrowers invite all Lenders to increase their respective  Commitment, then at the time of sending such notice, Borrowers (in consultation with  Administrative Agent) shall specify the time period within which each Lender is requested  to respond (which shall in no event be less than ten (10) Business Days from the date of  delivery of such notice to the Lenders).  Each Lender shall notify Administrative Agent  within such time period whether or not it agrees to increase its Commitment and, if so,  whether by an amount equal to, greater than, or less than its Applicable Percentage of such  requested increase.  Any Revolving Credit Lender not responding within such time period  shall be deemed to have declined to increase its Commitment.  Administrative Agent shall  notify Borrowers and each Lender of the Lenders’ responses to each request made  hereunder.  (c) Effective Date and Allocations.  If the Commitments are increased in  accordance with this Section, Administrative Agent and Borrowers shall determine the  effective date (the “Increase Effective Date”) and the final allocation of such increase  among the Lenders providing such increase.  Administrative Agent shall promptly notify  Borrowers and the Lenders of the final allocation of such increase and the Increase  Effective Date.  





 






  CREDIT AGREEMENT – Page 76    (d) Conditions to Effectiveness of Increase.  As a condition precedent to such  increase, Borrowers shall deliver to Administrative Agent a certificate of each Loan Party  dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a  Responsible Officer of such Loan Party, in each case in form and substance satisfactory to  Administrative Agent, (i) certifying and attaching the resolutions adopted by such Loan  Party approving or consenting to such increase, and (ii) in the case of Borrowers, certifying  that, before and after giving effect to such increase, (A) the representations and warranties  contained in Article 5 and the other Loan Documents are true and correct in all material  respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language,  in all respects after giving effect to such qualification) on and as of the Increase Effective  Date, except to the extent that such representations and warranties specifically refer to an  earlier date, in which case they are true and correct as of such earlier date (or, if qualified  by “materiality,” “Material Adverse Effect” or similar language, in all respects as of such  earlier date after giving effect to such qualification), and except that for purposes of this  Section 2.10, the representations and warranties contained in Section 5.2 shall be deemed  to refer to the most recent statements furnished pursuant to subsections (a) and (b),  respectively, of Section 6.1, (B) no Default has occurred and is continuing and (C) the  Borrowers are in pro forma compliance with the financial covenants contained in Section  8.1 and Section 8.2.  Borrowers shall prepay any Revolving Credit Loans outstanding on  the Increase Effective Date (and pay any additional amounts required pursuant to Section  3.5) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with  any revised Applicable Percentages arising from any nonratable increase in the  Commitments under this Section.  (e) Pro Rata Treatment; Etc.  On the Increase Effective Date, (i) any Lender  increasing (or, in the case of any newly added Lender, extending) its Commitment shall  make available to Administrative Agent such amounts in immediately available funds as  Administrative Agent shall determine, for the benefit of the other Lenders, as being  required in order to cause, after giving effect to such increase or addition and the use of  such amounts to make payments to such other Lenders, each Lender’s portion of the  outstanding Revolving Credit Loans of all the Lenders to equal its revised Applicable  Percentage of such outstanding Revolving Credit Loans, and Administrative Agent shall  make such other adjustments among the Lenders with respect to the Revolving Credit  Loans then outstanding and amounts of principal, interest, commitment fees and other  amounts paid or payable with respect thereto as shall be necessary, in the opinion of  Administrative Agent, in order to effect such reallocation and (ii)  Borrowers shall be  deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the  date of any increase (or addition) in the Commitments (with such reborrowing to consist  of the Types of Revolving Credit Loans, with related Interest Periods if applicable,  specified in a notice delivered by the Borrower Representative, in accordance with the  requirements of Section 2.1(b)).  The deemed payments made pursuant to clause (ii) of the  immediately preceding sentence shall be accompanied by payment of all accrued interest  on the amount prepaid and, in respect of each Eurodollar Rate Term SOFR Loan, shall be  subject to the provisions of Section 3.5 if the deemed payment occurs other than on the last  day of the related Interest Periods.  Within a reasonable time after the effective date of any  increase or addition, Administrative Agent shall, and is hereby authorized and directed to,  revise Schedule 2.1 to reflect such increase or addition and shall distribute such revised  





 






  CREDIT AGREEMENT – Page 77    Schedule 2.1 to each of the Lenders and the Borrowers, whereupon such revised Schedule  2.1 shall replace the old Schedule 2.1 and become part of this Agreement  (f) Conflicting Provisions.  This Section shall supersede any provisions in  Section 11.10 or Section 11.22 to the contrary.  Section 2.11 Cash Collateral Blocked Accounts. Subject to Section 6.12, each  Borrower shall establish with Administrative Agent or any banks acceptable to Administrative  Agent, certain lockboxes and blocked accounts as agreed upon by the Administrative Agent  (collectively “Blocked Accounts”), for the benefit of Administrative Agent, for the deposit of all  receipts and collections in accordance with Section 2.12 hereof, pursuant to executed Deposit  Account Control Agreements in form and substance satisfactory to Administrative Agent, in its  reasonable discretion.  All receipts and collections deposited in such Blocked Accounts shall be  pledged to Administrative Agent, for the benefit of the Secured Parties, and, pursuant to Section  2.5(d), forwarded on a daily basis to an account held by Administrative Agent.  During a Trigger  Period, proceeds received from such Blocked Accounts shall be applied against any Obligations  owing by any Borrower to the Lenders and shall be applied in accordance with Section 2.5(d)  hereof.  Only Administrative Agent shall have the right to direct withdrawals from such Blocked  Accounts.  Except as otherwise agreed to by Administrative Agent, each bank at which any such  Blocked Account is maintained shall waive any right of offset such bank may otherwise have in  such Blocked Account and the items deposited therein.  Borrowers shall pay all fees and charges  as may be required by any depository in which such Blocked Accounts are opened.  Subject to  Section 6.12, each Borrower shall, contemporaneously with the execution of this Agreement,  provide Administrative Agent with the duly executed Deposit Account Control Agreements related  to such Blocked Accounts.  Subject to Section 6.12, each Borrower covenants and agrees to notify  all of its customers and account debtors in writing on or before the date set forth in Section 6.12  directing such customers and account debtors to forward all current and future remittances and/or  payments owed to such Borrower to the Blocked Accounts.  All of the Loan Parties’ deposit  accounts as of the Closing Date are set forth in Schedule 2.11.  Section 2.12 Collection of Accounts.  (a) All receipts of cash, cash equivalents, checks, credit card receipts, drafts,  instruments, and other items of payment arising out of the sale of inventory or other  Property of the Loan Parties or the creation of accounts receivable, including without  limitation, insurance proceeds and tax refunds (referred to as “Receipts”), and all Property  of the Loan Parties in which Administrative Agent has a security interest or Lien, shall be  deposited daily into one or more of the Blocked Accounts, and shall be held in trust by  such Loan Party for Administrative Agent until so deposited.  (b) In the event, notwithstanding the provisions of this Section, any Loan Party  receives or otherwise has dominion and control of any Receipts, or any proceeds or  collections of any Property of the Loan Parties in which Administrative Agent has a  security interest or Lien, such Receipts, proceeds, and collections shall be held in trust by  such Loan Party for Administrative Agent and shall not be commingled with any of such  Loan Party’s other funds or deposited in any account of such Loan Party other than a  Blocked Account.   





 






  CREDIT AGREEMENT – Page 78    Section 2.13 Appointment of Borrower Representative.  (a) Each Borrower hereby irrevocably appoints and constitutes Holdings (in  such capacity, the “Borrower Representative”) as its agent to request and receive the  proceeds of any Loan, Letter of Credit or any other extension of credit hereunder (and to  otherwise act on behalf of such Borrower pursuant to this Agreement and the other Loan  Documents) from the Lenders in the name or on behalf of each such Borrower.  The  Lenders may disburse such proceeds only to a bank account of a Borrower without notice  to any other Borrower or any other Loan Party.  (b) Each Loan Party hereby irrevocably appoints and constitutes the Borrower  Representative as its agent to (i) receive statements of account and all other notices from  Administrative Agent with respect to the Obligations or otherwise under or in connection  with this Agreement and the other Loan Documents; (ii) execute and deliver Borrowing  Base Reports and all other notices, certificates and documents to be executed and/or  delivered by any Loan Party under this Agreement or the other Loan Documents; and (iii)  otherwise act on behalf of such Loan Party pursuant to this Agreement and the other Loan  Documents.  (c) The authorizations contained in this Section 2.13 are coupled with an  interest and shall be irrevocable, and the Lenders may rely on any notice, request,  information supplied by the Borrower Representative, every document executed by the  Borrower Representative, every agreement made by the Borrower Representative or other  action taken by the Borrower Representative in respect of any Borrower or other Loan  Party as if the same were supplied, made or taken by such Borrower or such Loan Party.   Without limiting the generality of the foregoing, the failure of one or more Borrowers or  other Loan Parties to join in the execution of any writing in connection herewith shall not  relieve any Borrower or other Loan Party from obligations in respect of such writing.  (d) No purported termination of the appointment of the Borrower  Representative as agent shall be effective without the prior written consent of  Administrative Agent.  (e) Any notice given by or to the Borrower Representative hereunder shall  constitute and be deemed to be notice given by or to all Borrowers, jointly and severally.   Notice given by Administrative Agent to the Borrower Representative hereunder or  pursuant to any other Loan Documents in accordance with the terms hereof or thereof shall  constitute notice to all Borrowers.  The knowledge of any Borrower shall be imputed to all  Borrowers and any consent by the Borrower Representative or any Borrower shall  constitute the consent of and shall bind all Borrowers.  (f) The Borrower Representative hereby accepts the appointment by each Loan  Party to act as the agent of the Loan Parties pursuant to this Section 2.13.  The Borrower  Representative shall ensure that the disbursement of any Loans, the issuance of any Letters  of Credit or other extension of credit hereunder to each Borrower requested by or paid to  or for the account of such Borrower shall be paid to or for the account of such Borrower.  





 






  CREDIT AGREEMENT – Page 79    Section 2.14 Joint and Several Liability. The Borrowers shall be jointly and severally  liable for all Obligations due to the Secured Parties under this Agreement, regardless of which  Borrower actually receives any Loans, Letters of Credit or other extensions of credit hereunder or  the amount of such Loans or Letters of Credit received or the manner in which Administrative  Agent accounts for such Loans, Letters of Credit or other extensions of credit on its books and  records.  The Obligations with respect to the Loans and Letters of Credit or other extensions of  credit made to a Borrower, and the Obligations arising as a result of the joint and several liability  of a Borrower hereunder, shall be primary obligations of all the Borrowers.  The Obligations  arising as a result of the joint and several liability of a Borrower hereunder with respect to the  Loans, Letters of Credit or other extensions of credit made to the other Borrowers hereunder shall,  to the fullest extent permitted by law, be unconditional irrespective of (a) the validity or  enforceability, avoidance or subordination of the Obligations of the other Borrowers or of any  promissory note or other document evidencing all or any part of the Obligations of the other  Borrowers, (b) the absence of any attempt to collect the Obligations from the other Borrowers, any  other Loan Party or any other security therefor, or the absence of any other action to enforce the  same, (c) the failure by Administrative Agent to take any steps to perfect and maintain its security  interest in, or to preserve its rights and maintain its security or collateral for the Obligations of the  other Borrowers and the other Loan Parties, (d) the election of Administrative Agent or any other  Secured Party in any proceeding instituted under any bankruptcy, insolvency or other Debtor  Relief Law or of the application of Section 1111(b)(2) of the Bankruptcy Code of the United States,  (e) the disallowance of all or any portion of the claim(s) of the Secured Parties for the repayment  of the Obligations of the other Borrowers and other Loan Parties under Section 502 of the  Bankruptcy Code of the United States, or (f) any other circumstances which might constitute a  legal or equitable discharge or defense of any obligor.  With respect to the Obligations arising as  a result of the joint and several liability of a Borrower hereunder with respect to the Loans, Letters  of Credit or other extensions of credit made to the other Borrowers hereunder, each Borrower  waives, until the Obligations shall have been paid in full in immediately available funds and this  Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy  which the Secured Parties now have or may hereafter have against the Borrowers and the other  Loan Parties, any endorser or any guarantor of all or any part of the Obligations, and any benefit  of, and any right to participate in, any security or collateral given to the Secured Parties.  Upon  any Event of Default and for so long as the same is continuing, Administrative Agent may proceed  directly and at once, without notice, against any Borrower or any Guarantor to collect and recover  the full amount, or any portion of the Obligations, without first proceeding against the other  Borrowers or any other Person, or against any security or collateral for the Obligations.  Each  Borrower consents and agrees that Administrative Agent shall be under no obligation to marshal  any assets in favor of any Borrower or any other Loan Party against or in payment of any or all of  the Obligations.  ARTICLE 3.    TAXES, YIELD PROTECTION AND INDEMNITY  Section 3.1 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  





 






  CREDIT AGREEMENT – Page 80    (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of,  deposits with or for the account of, or credit extended or participated in by, any  Lender (except any reserve requirement reflected in the Adjusted Eurodollar  RateTerm SOFR);  (ii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded  Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of  credit, commitments, or other obligations, or its deposits, reserves, other liabilities  or capital attributable thereto; or  (iii) impose on any Lender or the London interbank market any other  condition, cost or expense (other than Taxes) affecting this Agreement or Loans  made by such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender or such  other Recipient of making, converting to, continuing or maintaining any Loan or of  maintaining its obligation to make any such Loan, or to increase the cost to such Lender or  such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of  maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the  amount of any sum received or receivable by such Lender or other Recipient hereunder  (whether of principal, interest or any other amount) then, upon request of such Lender or  other Recipient, Borrowers will pay to such Lender or other Recipient, as the case may be,  such additional amount or amounts as will compensate such Lender or other Recipient, as  the case may be, for such additional costs incurred or reduction suffered.  (b) Capital or Liquidity Requirements.  If any Lender determines that any  Change in Law affecting such Lender or any Lending Office of such Lender or such  Lender’s holding company, if any, regarding capital or liquidity requirements, has or would  have the effect of reducing the rate of return on such Lender’s capital or on the capital of  such Lender’s holding company, if any, as a consequence of this Agreement, the  Commitments of such Lender or the Loans made by, or participations in Letters of Credit  or Swing Line Loans held by such Lender or the Letters of Credit issued by L/C Issuer, to  a level below that which such Lender or such Lender’s holding company could have  achieved but for such Change in Law (taking into consideration such Lender’s policies and  the policies of such Lender’s holding company with respect to capital adequacy and  liquidity), then from time to time Borrowers will pay to such Lender such additional  amount or amounts as will compensate such Lender or such Lender’s holding company for  any such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender setting forth  the amount or amounts necessary to compensate such Lender or its holding company, as  the case may be, as specified in Sections 3.1(a) or (b) and delivered to the Borrower  Representative, shall be conclusive absent manifest error.  Borrowers shall pay such Lender  the amount shown as due on any such certificate within ten (10) days after receipt thereof.  





 






  CREDIT AGREEMENT – Page 81    (d) Delay in Requests.  Failure or delay on the part of any Lender to demand  compensation pursuant to this Section 3.1 shall not constitute a waiver of such Lender’s  right to demand such compensation; provided that no Borrower shall be required to  compensate a Lender pursuant to this Section 3.1 for any increased costs incurred or  reductions suffered more than nine (9) months prior to the date that such Lender notifies  the Borrower Representative of the Change in Law giving rise to such increased costs or  reductions, and of such Lender’s intention to claim compensation therefor (except that, if  the Change in Law giving rise to such increased costs or reductions is retroactive, then the  nine (9) -month period referred to above shall be extended to include the period of  retroactive effect thereof).  Section 3.2 Illegality.  If any Lender determines that any Law or regulation has made it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or  its Lending Office to make, maintain or fund Loans whose interest is determined by reference to  SOFR, the Eurodollar RateTerm SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or  to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental  Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or  to take deposits of, Dollars in the London interbank marketSOFR, the Term SOFR Reference Rate,  Adjusted Term SOFR or Term SOFR, then, on notice thereof by such Lender to the Borrower  Representative through Administrative Agent, (a) any obligation of such Lender to make or  continue Eurodollar Rate Term SOFR Loans or to convert Base Rate Loans to Eurodollar Rate  Term SOFR Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender  making or maintaining Base Rate Loans the interest rate on which is determined by reference to  the Eurodollar Rate Adjusted Term SOFR component of the Base Rate, the interest rate on which  Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by  Administrative Agent without reference to the Eurodollar Rate Adjusted Term SOFR component  of the Base Rate, in each case until such Lender notifies Administrative Agent and the Borrower  Representative that the circumstances giving rise to such determination no longer exist.  Upon  receipt of such notice, (i) Borrowers shall, upon demand from such Lender (with a copy to  Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Term SOFR Loans of  such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall,  if necessary to avoid such illegality, be determined by Administrative Agent without reference to  the Eurodollar Rate Adjusted Term SOFR component of the Base Rate), either on the last day of  the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar  Rate Term SOFR Loans to such day, or immediately, if such Lender may not lawfully continue to  maintain such Eurodollar Rate Term SOFR Loans and (ii) if such notice asserts the illegality of  such Lender determining or charging interest rates based upon the Eurodollar RateAdjusted Term  SOFR, Administrative Agent shall during the period of such suspension compute the Base Rate  applicable to such Lender without reference to the Eurodollar Rate Adjusted Term SOFR  component thereof until Administrative Agent is advised in writing by such Lender that it is no  longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar  RateAdjusted Term SOFR.  Upon any such prepayment or conversion, Borrowers shall also pay  accrued interest on the amount so prepaid or converted.  Section 3.3 Alternate Rate of Interest.  Section 3.3 Changed Circumstances; Benchmark Replacement.  





 






  CREDIT AGREEMENT – Page 82    (a) Inability to Determine Rates.  Subject to clauses (b), (c), (d), (e) and (f)  of this Section 3.3 and Section 3.2Changed Circumstances.  Subject to clause (b) below,  if prior to the commencement of any Interest Period for a Eurodollar any Benchmark Rate  Loan:Borrowing,  (i) the Administrative Agent determines (which determination shall be  conclusive and binding absent manifest error) that in connection with any request  for a Benchmark Rate Loan or a conversion to or continuation thereof or otherwise,  that for any reason adequate and reasonable means do not exist for determining the  Eurodollar Rate applicable Benchmark for any requested Interest Period with  respect to a proposed Eurodollar Benchmark Rate Loan or in connection with an  existing or proposed Base Rate Borrowing (provided that no Benchmark  Transaction Transition Event shall have occurred at such time); or  (ii) the Administrative Agent is advised by the Required Lenders that  the Eurodollar Rate applicable Benchmark for any requested Interest Period with  respect to a proposed Eurodollar Benchmark Rate Loan will not adequately and  fairly reflect the cost to such Lenders of funding such Eurodollar or maintaining  their Benchmark Rate Loans included in such Borrowing for such Interest Period.   ,  Thereafter, (Athen Administrative Agent will promptly so notify the Borrower  Representative and each Lender.  Thereafter, (x) the obligation of Lenders to make  or maintain Eurodollar Benchmark Rate Loans shall be suspended, and (By) in the  event of a determination described in the preceding sentence with respect to the  Eurodollar Rate Benchmark rate component of the Base Rate, the utilization of the  Eurodollar Rate Benchmark rate component in determining the Base Rate shall be  suspended, in each case until Administrative Agent (upon the instruction of the  Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower  Representative may revoke any pending request for a Borrowing of, conversion to  or continuation of Eurodollar Benchmark Rate Loans Borrowings or, failing that,  will be deemed to have converted such request into a request for a Base Rate  Borrowing in the amount specified therein.  (b) Benchmark Replacement Setting.   (i) (b)Benchmark Replacement.  Notwithstanding anything to the  contrary herein or in any other Loan Document, if a Benchmark Transition Event  or an Early Opt-in Election, as applicable, and its related Benchmark Replacement  Date have occurred prior to the Reference Time in respect of any setting of the then- current Benchmark, then (iA) if a Benchmark Replacement is determined in  accordance with clauses clause (a) or (b) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark  Replacement will replace such Benchmark for all purposes hereunder and under  any Loan Document in respect of such Benchmark setting and subsequent  Benchmark settings without any amendment to, or further action or consent of any  other party to, this Agreement or any other Loan Document and (iiB) if a  





 






  CREDIT AGREEMENT – Page 83    Benchmark Replacement is determined in accordance with clause (c) of the  definition of “Benchmark Replacement” for such Benchmark Replacement Date,  such Benchmark Replacement will replace such Benchmark for all purposes  hereunder and under any Loan Document in respect of any Benchmark setting at or  after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such  Benchmark Replacement is provided to the Lenders without any amendment to, or  further action or consent of any other party to, this Agreement or any other Loan  Document so long as the Administrative Agent has not received, by such time,  written notice of objection to such Benchmark Replacement from Lenders  comprising the Required Lenders.  (ii) (c)Benchmark Replacement Conforming Changes. In connection  with the use, administration, adoption or implementation of a Benchmark  Replacement, the Administrative Agent will have the right to make Benchmark  Replacement Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other Loan Document, any amendments  implementing such Benchmark Replacement Conforming Changes will become  effective without any further action or consent of any other party to this Agreement or  any other Loan Document.  (iii) (d)Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Borrower Representative and the  Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in  Election, as applicable, and its related Benchmark Replacement Date, (iiA) the  implementation of any Benchmark Replacement, (iiiB) the effectiveness of any  Conforming Changes in connection with the use, administration, adoption or  implementation of a Benchmark Replacement Conforming Changes, (iv, (C) the  removal or reinstatement of any tenor of a Benchmark pursuant to clause (eiv)  below and (vD) the commencement or conclusion of any Benchmark Unavailability  Period. Any determination, decision or election that may be made by the  Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant  to this Section 3.3(b), including any determination with respect to a tenor, rate or  adjustment or of the occurrence or non-occurrence of an event, circumstance or  date and any decision to take or refrain from taking any action or any selection, will  be conclusive and binding absent manifest error and may be made in its or their  sole discretion and without consent from any other party to this Agreement or any  other Loan Document, except, in each case, as expressly required pursuant to this  Section 3.3(b).  (iv) (e)Unavailability of Tenor of Benchmark. Notwithstanding  anything to the contrary herein or in any other Loan Document, at any time  (including in connection with the implementation of a Benchmark Replacement),  (iA) if the then-current Benchmark is a term rate (including the Term SOFR or USD  LIBORReference Rate or BSBY) and either (A1) any tenor for such Benchmark is  not displayed on a screen or other information service that publishes such rate from  time to time as selected by the Administrative Agent in its reasonable discretion or  (B2) the regulatory supervisor for the administrator of such Benchmark has  





 






  CREDIT AGREEMENT – Page 84    provided a public statement or publication of information announcing that any tenor  for such Benchmark is not or will be no longer not be representative, then the  Administrative Agent may modify the definition of “Interest Period” for any  Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (iiB) if a tenor that was removed pursuant to clause (i)  above either (A1) is subsequently displayed on a screen or information service for  a Benchmark (including a Benchmark Replacement) or (B2) is not, or is no longer,  subject to an announcement that it is not or will no longer not be representative for  a Benchmark (including a Benchmark Replacement), then the Administrative  Agent may modify the definition of “Interest Period” for all Benchmark settings at  or after such time to reinstate such previously removed tenor.  (v) (f)Benchmark Unavailability Period. Upon the Borrower  Representative’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Borrower Representative may revoke any pending  request for a Eurodollar Benchmark Rate Borrowing of, conversion to or  continuation of Eurodollar Benchmark Rate Loans to be made, converted or  continued during any Benchmark Unavailability Period and, failing that, the  Borrower Representative will be deemed to have converted any such request into a  request for a Borrowing of or conversion to Base Rate Loans. During any  Benchmark Unavailability Period or at any time that a tenor for the then-current  Benchmark is not an Available Tenor, the component of the Base Rate based upon  the then-current Benchmark or such tenor for such Benchmark, as applicable, will  not be used in any determination of Base Rate.the Base Rate.  (vi) BSBY Replacement.  Notwithstanding anything to the contrary in  this Agreement or any other Loan Documents, at any time that BSBY is the then  current Benchmark, if the Administrative Agent determines (which determination  shall be conclusive absent manifest error), or the Borrower Representative or  Required Lenders notify the Administrative Agent (with, in the case of the Required  Lenders, a copy to the Borrower Representative) that the Borrower Representative  or Required Lenders (as applicable) have determined, that:  (A) adequate and reasonable means do not exist for ascertaining  one month, three month and six month interest periods of BSBY, including,  without limitation, because the BSBY Screen Rate is not available or  published on a current basis and such circumstances are unlikely to be  temporary; or  (B) Bloomberg or any successor administrator of the BSBY  Screen Rate or a Governmental Authority having jurisdiction over the  Administrative Agent or Bloomberg or such administrator has made a  public statement identifying a specific date after which one month,  three  month and six month  interest periods of BSBY or the BSBY Screen Rate  shall or will no longer be representative or made available, or used for  determining the interest rate of loans, or shall or will otherwise cease,  provided that, at the time of such statement, there is no successor  





 






  CREDIT AGREEMENT – Page 85    administrator that is satisfactory to the Administrative Agent, that will  continue to provide such representative interest periods of BSBY after such  specific date (the latest date on which one month, three month and six month  interest periods of BSBY or the BSBY Screen Rate are no longer  representative or available permanently or indefinitely, the “Scheduled  Unavailability Date”);  then, on a date and time determined by the Administrative Agent (any such date,  the “BSBY Replacement Date”), which date shall be at the end of an Interest Period  or on the relevant interest payment date, as applicable, for interest calculated and,  solely with respect to clause (B) above, no later than the Scheduled Unavailability  Date, BSBY will be replaced hereunder and under any Loan Document with a  Benchmark Replacement determined in accordance with the definition thereof.  (g) London Interbank Offered Rate Benchmark Transition Event.  On  March 5, 2021, the IBA, the administrator of the London interbank offered rate, and the  FCA, the regulatory supervisor of the IBA, made the Announcements that the final  publication or representativeness date for (i) 1-week and 2-month London interbank  offered rate tenor settings will be December 31, 2021 and (ii) overnight, 1-month, 3-month,  6-month and 12-month London interbank offered rate tenor settings will be June 30, 2023.   No successor administrator for the IBA was identified in such Announcements.  The parties  hereto agree and acknowledge that the Announcements resulted in the occurrence of a  Benchmark Transition Event with respect to the London interbank offered rate pursuant to  the terms of this Agreement and that any obligation of the Administrative Agent to notify  any parties of such Benchmark Transition Event pursuant to Section 3.3(d) shall be deemed  satisfied.  Section 3.4 Taxes.  (a) Defined Terms.  For purposes of this Section, the term “applicable Law”  includes FATCA.  (b) Payment Free of Taxes.  Any and all payments by or on account of any  obligation of any Loan Party under any Loan Document shall be made without deduction  or withholding for any Taxes, except as required by applicable Law.  If any applicable Law  (as determined in the good faith discretion of an applicable Withholding Agent) requires  the deduction or withholding of any Tax from any such payment by a Withholding Agent,  then the applicable Withholding Agent shall be entitled to make such deduction or  withholding and shall timely pay the full amount deducted or withheld to the relevant  Governmental Authority in accordance with applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as  necessary so that after such deduction or withholding has been made (including such  deductions and withholdings applicable to additional sums payable under this Section 3.4)  the applicable Recipient receives an amount equal to the sum it would have received had  no such deduction or withholding been made.  





 






  CREDIT AGREEMENT – Page 86    (c) Payment of Other Taxes by the Loan Parties.  The Loan Parties shall  timely pay to the relevant Governmental Authority in accordance with applicable Law, or  at the option of Administrative Agent timely reimburse it for the payment of, any Other  Taxes.  (d) Indemnification by the Loan Parties.  The Loan Parties shall jointly and  severally indemnify each Recipient, within ten (10) days after demand therefor, for the full  amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or  attributable to amounts payable under this Section 3.4) payable or paid by such Recipient  or required to be withheld or deducted from a payment to such Recipient and any  reasonable expenses arising therefrom or with respect thereto, whether or not such  Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to the Borrower Representative by a Lender (with a copy to Administrative  Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be  conclusive absent manifest error.  (e) Indemnification by Lenders.  Each Lender shall severally indemnify  Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified  Taxes attributable to such Lender (but only to the extent that any Loan Party has not already  indemnified Administrative Agent for such Indemnified Taxes and without limiting the  obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure  to comply with the provisions of Section 11.8 relating to the maintenance of a Participant  Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are  payable or paid by Administrative Agent in connection with any Loan Document, and any  reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes  were correctly or legally imposed or asserted by the relevant Governmental Authority.  A  certificate as to the amount of such payment or liability delivered to any Lender by  Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby  authorizes Administrative Agent to set off and apply any and all amounts at any time owing  to such Lender under any Loan Document or otherwise payable by Administrative Agent  to such Lender from any other source against any amount due to Administrative Agent  under this Section 3.4(e).  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes  by any Loan Party to a Governmental Authority pursuant to this Section 3.4, such Loan  Party shall deliver to Administrative Agent the original or a certified copy of a receipt  issued by such Governmental Authority evidencing such payment, a copy of the return  reporting such payment or other evidence of such payment reasonably satisfactory to  Administrative Agent.  (g) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall  deliver to the Borrower Representative and Administrative Agent, at the time or  times reasonably requested by the Borrower Representative or Administrative  





 






  CREDIT AGREEMENT – Page 87    Agent, such properly completed and executed documentation reasonably requested  by the Borrower Representative or Administrative Agent as will permit such  payments to be made without withholding or at a reduced rate of withholding.  In  addition, any Lender, if reasonably requested by the Borrower Representative or  Administrative Agent, shall deliver such other documentation prescribed by  applicable Law or reasonably requested by the Borrower Representative or  Administrative Agent as will enable the Borrower Representative or Administrative  Agent to determine whether or not such Lender is subject to backup withholding or  information reporting requirements.  Notwithstanding anything to the contrary in  the preceding two (2) sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in Section 3.4(g)(ii)(A),  (ii)(B) and (ii)(D) below) shall not be required if in such Lender’s reasonable  judgment such completion, execution or submission would subject such Lender to  any material unreimbursed cost or expense or would materially prejudice the legal  or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  Representative and Administrative Agent on or prior to the date on which  such Lender becomes a Lender under this Agreement (and from time to time  thereafter upon the reasonable request of the Borrower Representative or  Administrative Agent), executed copies of IRS Form W-9 certifying that  such Lender is exempt from U.S. federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower Representative and Administrative Agent  (in such number of copies as shall be requested by the recipient) on or prior  to the date on which such Foreign Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of  the Borrower Representative or Administrative Agent), whichever of the  following is applicable:  (1) in the case of a Foreign Lender claiming the benefits  of an income tax treaty to which the United States is a party (x) with  respect to payments of interest under any Loan Document, executed  copies of IRS Form W-8BEN (or IRS Form W-8BEN-E, if  applicable) establishing an exemption from, or reduction of, U.S.  federal withholding Tax pursuant to the “interest” article of such tax  treaty and (y) with respect to any other applicable payments under  any Loan Document, IRS Form W-8BEN (or IRS Form W-8BEN- E, if applicable) establishing an exemption from, or reduction of,  U.S. federal withholding Tax pursuant to the “business profits” or  “other income” article of such tax treaty;  (2) executed copies of IRS Form W-8ECI;  





 






  CREDIT AGREEMENT – Page 88    (3) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the  Code, (x) a certificate substantially in the form of Exhibit G-1 to the  effect that such Foreign Lender is not a “bank” within the meaning  of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of  any Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in  Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance  Certificate”) and (y) executed copies of IRS Form W-8BEN (or IRS  Form W-8BEN-E, if applicable); or  (4) to the extent a Foreign Lender is not the beneficial  owner, executed copies of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BEN (or IRS Form W-8BEN-E, if  applicable), a U.S. Tax Compliance Certificate substantially in the  form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other  certification documents from each beneficial owner, as applicable;  provided that if the Foreign Lender is a partnership and one or more  direct or indirect partners of such Foreign Lender are claiming the  portfolio interest exemption, such Foreign Lender may provide a  U.S. Tax Compliance Certificate substantially in the form of  Exhibit G-4 on behalf of each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Borrower Representative and Administrative Agent  (in such number of copies as shall be requested by the recipient) on or prior  to the date on which such Foreign Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of  the Borrower Representative or Administrative Agent), executed copies of  any other form prescribed by applicable Law as a basis for claiming  exemption from or a reduction in U.S. federal withholding Tax, duly  completed, together with such supplementary documentation as may be  prescribed by applicable Law to permit the Borrower Representative or  Administrative Agent to determine the withholding or deduction required  to be made; and  (D) if a payment made to a Lender under any Loan Document  would be subject to U.S. federal withholding Tax imposed by FATCA if  such Lender were to fail to comply with the applicable reporting  requirements of FATCA (including those contained in Section 1471(b) or  1472(b) of the Code, as applicable), such Lender shall deliver to the  Borrower Representative and Administrative Agent at the time or times  prescribed by Law and at such time or times reasonably requested by the  Borrower Representative or Administrative Agent such documentation  prescribed by applicable Law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Borrower Representative or Administrative  





 






  CREDIT AGREEMENT – Page 89    Agent as may be necessary for the Borrower Representative and  Administrative Agent to comply with their obligations under FATCA and  to determine that such Lender has complied with such Lender’s obligations  under FATCA or to determine the amount to deduct and withhold from such  payment.  Solely for purposes of this clause (D), “FATCA” shall include  any amendments made to FATCA after the date of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or inaccurate in any respect, it shall update such form or certification  or promptly notify the Borrower Representative and Administrative Agent in writing of its  legal inability to do so.  (h) Treatment of Certain Refunds.  If any party determines, in its sole  discretion exercised in good faith, that it has received a refund of any Taxes as to which it  has been indemnified pursuant to this Section 3.4 (including by the payment of additional  amounts pursuant to this Section 3.4), it shall pay to the indemnifying party an amount  equal to such refund (but only to the extent of indemnity payments made under this  Section 3.4 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) of such indemnified party and without interest (other than any  interest paid by the relevant Governmental Authority with respect to such refund).  Such  indemnifying party, upon the request of such indemnified party, shall repay to such  indemnified party the amount paid over pursuant to this Section 3.4(h) (plus any penalties,  interest or other charges imposed by the relevant Governmental Authority) in the event that  such indemnified party is required to repay such refund to such Governmental Authority.   Notwithstanding anything to the contrary in this Section 3.4(h), in no event will the  indemnified party be required to pay any amount to an indemnifying party pursuant to this  Section 3.4(h) the payment of which would place the indemnified party in a less favorable  net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or  otherwise imposed and the indemnification payments or additional amounts with respect  to such Tax had never been paid.  This Section 3.4(h) shall not be construed to require any  indemnified party to make available its Tax returns (or any other information relating to its  Taxes that it deems confidential) to the indemnifying party or any other Person.  (i) Survival.  Each party’s obligations under this Section 3.4 shall survive the  resignation or replacement of Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment,  satisfaction or discharge of all obligations under any Loan Document.  Section 3.5 Compensation for Losses.  Upon written demand of any Lender (with a  copy to Administrative Agent) from time to time, Borrowers shall compensate such Lender for  and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any Eurodollar  Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for  such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or  otherwise);   





 






  CREDIT AGREEMENT – Page 90    (b) any failure by Borrowers (for a reason other than the failure of such Lender  to lend a Eurodollar any Loan other than a Base Rate Loan) to prepay, borrow, continue or  convert any Eurodollar Loan other than a Base Rate Loan on the date or in the amount  notified by the Borrower Representative; or  (c) any assignment of a Eurodollar Loan other than a Base Rate Loan on a day  other than the last day of the Interest Period therefor as a result of a request by the Borrower  Representative pursuant to Section 3.6(b);  including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained.  Borrowers shall also pay any customary  administrative fees charged by such Lender in connection with the foregoing.For purposes of  calculating amounts payable by Borrowers to the Lenders under this Section 3.5, each Lender shall  be deemed to have funded each Eurodollar Rate Loan made by it at Adjusted Eurodollar Rate by  a matching deposit or other borrowing in the London interbank eurodollar market for a comparable  amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so  funded.    A certificate of any Lender setting forth any amount or amounts that such Lender is entitled  to receive pursuant to this Section shall be delivered to the Borrower Representative and shall be  conclusive absent demonstrable error. Borrowers shall pay such Lender the amount shown as due  on any such certificate within 10 days after receipt thereof.  Section 3.6 Mitigation of Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests  compensation under Section 3.1, or requires Borrowers to pay any Indemnified Taxes or  additional amounts to any Lender or any Governmental Authority for the account of any  Lender pursuant to Section 3.4, then such Lender shall (at the request of the Borrower  Representative) use reasonable efforts to designate a different Lending Office for funding  or booking its Loans hereunder or to assign its rights and obligations hereunder to another  of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation  or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1 or  Section 3.4, as the case may be, in the future, and (ii) would not subject such Lender to any  unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.   Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender  in connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under  Section 3.1, or if Borrowers are required to pay any Indemnified Taxes or additional  amounts to any Lender or any Governmental Authority for the account of any Lender  pursuant to Section 3.4 and, in each case, such Lender has declined or is unable to designate  a different Lending Office in accordance with Section 3.6(a), or if any Lender is a  Defaulting Lender or a Non-Consenting Lender, then Borrowers may, at their sole expense  and effort, upon notice to such Lender and Administrative Agent, require such Lender to  assign and delegate, without recourse (in accordance with and subject to the restrictions  





 






  CREDIT AGREEMENT – Page 91    contained in, and consents required by, Section 11.8), all of its interests, rights (other than  its existing rights to payments pursuant to Section 3.1 or Section 3.4) and obligations under  this Agreement and the related Loan Documents to an Eligible Assignee that shall assume  such obligations (which assignee may be another Lender, if a Lender accepts such  assignment); provided that:  (i) Borrowers shall have paid to Administrative Agent the assignment  fee (if any) specified in Section 11.8;  (ii) such Lender shall have received payment of an amount equal to the  Outstanding Amount of its Loans and L/C Advances, accrued interest thereon,  accrued fees and all other amounts payable to it hereunder and under the other Loan  Documents (including any amounts under Section 3.5) from the assignee (to the  extent of such outstanding principal and accrued interest and fees) or Borrowers (in  the case of all other amounts);  (iii) in the case of any such assignment resulting from a claim for  compensation under Section 3.1 or payments required to be made pursuant to  Section 3.4, such assignment will result in a reduction in such compensation or  payments thereafter;  (iv) such assignment does not conflict with applicable Law; and  (v) in the case of any assignment resulting from a Lender becoming a  Non-Consenting Lender, the applicable assignee shall have consented to the  applicable amendment, waiver or consent.  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 Borrowers to require  such assignment and delegation cease to apply.  Section 3.7 Survival.  All of the obligations under this Article 3 shall survive  termination of the Commitments, repayment of all other Obligations hereunder, and resignation of  Administrative Agent.  ARTICLE 4.    CONDITIONS PRECEDENT  Section 4.1 Initial Extension of Credit.  The obligation of Lenders to make the initial  Credit Extension hereunder is subject to the condition precedent that Administrative Agent shall  have received all of the following, each dated (unless otherwise indicated or otherwise specified  by Administrative Agent) the Closing Date, in form and substance reasonably satisfactory to  Administrative Agent:  (a) Credit Agreement.  Executed counterparts of this Agreement executed by  Administrative Agent, the Lenders, Swing Line Lender, L/C Issuer and each Loan Party;  





 






  CREDIT AGREEMENT – Page 92    (b) Resolutions.  Resolutions of the board of directors (or other governing  body) of each Loan Party that is not a natural Person certified by a Responsible Officer or  other custodian of records of such Person which authorize the execution, delivery, and  performance by such Person of this Agreement and the other Loan Documents to which  such Person is or is to be a party;  (c) Incumbency Certificate.  A certificate of incumbency certified by a  Responsible Officer of each Loan Party that is not a natural Person certifying the names of  the individuals or other Persons authorized to sign this Agreement and each of the other  Loan Documents to which each Loan Party is or is to be a party (including the certificates  contemplated herein) on behalf of such Person together with specimen signatures of such  individual Persons;  (d) Certificate Regarding Consents and Approvals.  A certificate of a  Responsible Officer of each Loan Party either (i) attaching copies of all consents, licenses  and approvals required in connection with the execution, delivery and performance by such  Loan Party and the validity against such Loan Party of the Loan Documents to which it is  a party, and such consents, licenses and approvals shall be in full force and effect, or (ii)  stating that no such consents, licenses or approvals are so required;  (e) Closing Certificate.  A certificate signed by a Responsible Officer of the  Borrower Representative certifying (i) that on the Closing Date and immediately after  giving effect to this Agreement and any Credit Extension on the Closing Date, (A) no  Default or Event of Default has occurred and is continuing, (B) all representations and  warranties made by any Loan Party contained herein or in any other Loan Document shall  be true and correct and (C) no Material Adverse Effect shall have occurred and no  circumstance shall exist that could reasonably be expected to have a Material Adverse  Effect and (ii) that attached to such certificate is a true, accurate and complete copy of the  Subordinated Debt Documents, if any, including any amendments and supplements  thereto;  (f) Solvency Certificate.  A solvency certificate signed by the chief financial  officer of Holdings;  (g) Perfection Certificate.  The Perfection Certificate signed by a Responsible  Officer of each Loan Party;  (h) Constituent Documents.  The Constituent Documents and all amendments  thereto for each Loan Party that is not a natural Person, with the formation documents  included in the Constituent Documents being certified as of a date acceptable to  Administrative Agent by the appropriate government officials of the state of incorporation  or organization of each Loan Party, and all such Constituent Documents being  accompanied by certificates that such copies are complete and correct, given by an  authorized representative acceptable to Administrative Agent;  (i) Governmental Certificates.  Certificates of the appropriate government  officials of the state of incorporation or organization of each Loan Party that is not a natural  





 






  CREDIT AGREEMENT – Page 93    Person as to the existence and good standing of each Loan Party that is not a natural Person,  each dated within thirty (30) days prior to the date hereof;  (j) Notes.  The Notes executed by Borrowers in favor of each Lender  requesting Notes;  (k) Security Documents.  The Security Documents executed by Borrowers and  the other Loan Parties;  (l) Pledged Equity Interests; Stock Powers; Pledged Notes.  Administrative  Agent shall have received (i) the certificates representing any Equity Interests pledged  pursuant to the Security Documents, together with an undated stock power for each such  certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) each  promissory note (if any) pledged to Administrative Agent pursuant to the Security  Documents endorsed (without recourse) in blank (or accompanied by an executed transfer  form in blank) by the pledgor thereof;  (m) Financing Statements.  UCC financing statements reflecting the Loan  Parties, as debtors, and Administrative Agent, as secured party, which are required to grant  a Lien which secures the Obligations and covering such Collateral as Administrative Agent  may request;  (n) Third-Party Field Examinations. Such third-party field examinations and  audits of the Borrowers’ Accounts, Inventory (including, without limitation, the  compressor fleet and related Compressor Components), related working capital matters  and of the Borrowers’ related data processing and other systems and such other information  or materials as Administrative Agent shall include within the scope of such third-party field  examinations and audits, the results of which shall be satisfactory to Administrative Agent  in its sole discretion;  (o) Third-Party Appraisals.  Such third-party asset appraisals of each  Borrowers’ Inventory (including, without limitation, the compressor fleet), which third- party appraisal shall be in form and substance satisfactory to Administrative Agent in its  sole discretion;  (p) Corporate Structure.  The corporate structure, capital structure and other  material debt instruments, material accounts and governing documents of Holdings and its  Subsidiaries shall be acceptable to Administrative Agent in its reasonable discretion;  (q) Insurance Matters.  Copies of insurance certificates describing all  insurance policies required by Section 6.5;  (r) Lien Searches; Lien Releases.  The results of UCC, tax lien and judgment  lien searches showing all financing statements and other documents or instruments on file  against each Loan Party in the appropriate filing offices, such search to be as of a recent  date reasonably satisfactory to the Administrative Agent.  The Administrative Agent shall  have received evidence satisfactory to it (including mortgage releases and UCC-3 financing  statement terminations, as applicable) that all Liens on the Equity Interests of the Loan  





 






  CREDIT AGREEMENT – Page 94    Parties and the Properties of the Loan Parties have been released or terminated, subject  only to the filing of applicable terminations and releases and Permitted Liens.  (s) Opinion of Counsel.  Signed favorable legal opinions of Jones & Keller  P.C., legal counsel to the Loan Parties covering such matters as the Administrative Agent  may reasonably request;  (t) Attorneys’ Fees and Expenses.  Evidence that the costs and expenses  (including reasonable attorneys’ fees) referred to in Section 11.1, to the extent invoiced,  shall have been paid in full by Borrowers;  (u) Financial Statements.  The financial statements set forth in Section 5.2;  (v) Financial Projections.  Pro forma consolidated financial statements for  Holdings and its Subsidiaries, and projections prepared by management of Holdings, of  balance sheets, income statements and cash flow statements on a quarterly basis for the  first year following the Closing Date and on an annual basis for each year thereafter during  the term of this Agreement, which shall not be inconsistent with any financial information  or projections previously delivered to Administrative Agent;  (w) Evidence of Payoff. A payoff letter, termination letter or other similar  document and release documents or other evidence reasonably satisfactory to the  Administrative Agent evidencing that (i) the Credit Agreement dated as of December 10,  2010, by and between Natural Gas Services Group, Inc., a Colorado corporation, as  borrower, and JPMorgan Chase Bank, N.A., as lender, as amended, has been repaid in full,  (ii) the commitments thereunder have been terminated, and (iii) the Liens securing the Debt  under such agreement have been released and terminated;  (x) KYC Information; Beneficial Ownership.  Each Loan Party shall have  provided to Administrative Agent and the Lenders (i) the documentation and other  information requested by Administrative Agent as it deems necessary in order to comply  with requirements of any anti-money laundering Laws, including, without limitation, the  Patriot Act and any applicable “know your customer” rules and regulations and (ii) at least  three (3) Business Days prior to the Closing Date, any Borrower that qualified as a “legal  entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial  Ownership Certification in relation to such Borrower;  (y) Legal Due Diligence.  Administrative Agent and its counsel shall have  completed all legal due diligence (including review of any material agreements disclosed  on Schedule 5.26), the results of which shall be satisfactory to Administrative Agent in its  sole discretion.  (z) Closing Fees.  Evidence that (i) all fees required to be paid to  Administrative Agent and Arranger on or before the Closing Date have been paid, and (ii)  all fees required to be paid to the Lenders on or before the Closing Date have been paid;   and  





 






  CREDIT AGREEMENT – Page 95    (aa) Additional Documentation.  Administrative Agent shall have received  such additional approvals, opinions, or documents as Administrative Agent or its legal  counsel may reasonably request.  For purposes of determining compliance with the conditions set forth in this Section 4.1,  each Lender that has signed this Agreement shall be deemed to have consented to, approved or  accepted or be satisfied with, each document or other matter required thereunder to be consented  to or approved by or be acceptable or satisfactory to a Lender unless Administrative Agent shall  have received notice from such Lender prior to the proposed Closing Date specifying its objection  thereto.  Section 4.2 All Extensions of Credit.  The obligation of Lenders to make any Credit  Extension hereunder (including the initial Credit Extension) is subject to the following additional  conditions precedent:  (a) Request for Credit Extension.  Administrative Agent shall have received  in accordance with this Agreement, as the case may be, a Borrowing Request, Letter of  Credit Application, or Swing Line Loan Request, as applicable, pursuant to Administrative  Agent’s requirements and executed by a Responsible Officer of the Borrower  Representative;  (b) No Default.  No Default or Event of Default shall have occurred and be  continuing, or would result from or after giving effect to such Credit Extension;  (c) No Material Adverse Effect.  No Material Adverse Effect shall have  occurred and no circumstance shall exist that could reasonably be expected to have a  Material Adverse Effect;  (d) Representations and Warranties.  All of the representations and  warranties of each Borrower and each other Loan Party contained in Article 5 and in the  other Loan Documents shall (i) with respect to representations and warranties that contain  a materiality qualification, be true and correct on and as of the date of such Borrowing, and  (ii) with respect to representations and warranties that do not contain a materiality  qualification, be true and correct in all material respects on and as of the date of such  Borrowing, in each case with the same force and effect as if such representations and  warranties had been made on and as of such date, except to the extent that such  representations and warranties specifically refer to an earlier date, in which case they shall  be true and correct in all material respects (or in the case of such representations and  warranties that contain a materiality qualification, in all respects) as of such earlier date,  and except that for purposes of this Section 4.2, the representations and warranties  contained in Section 5.2 shall be deemed to refer to the most recent statements furnished  pursuant to Section 6.1(a) and (b), respectively; and  (e) Availability Under Revolving Credit Facility.  With respect to any  request for a Credit Extension under the Commitments, immediately after giving effect to  the Credit Extension so requested, the total Revolving Credit Exposure of the Lenders shall  not exceed the Line Cap in effect as of the date of such Credit Extension.  





 






  CREDIT AGREEMENT – Page 96    Each Credit Extension hereunder shall be deemed to be a representation and warranty by each  Borrower that the conditions specified in this Section 4.2 have been satisfied on and as of the date  of the applicable Credit Extension.  ARTICLE 5.    REPRESENTATIONS AND WARRANTIES  To induce Administrative Agent and Lenders to enter into this Agreement, and to make  Credit Extensions hereunder, each Loan Party represents and warrants to Administrative Agent  and Lenders that:  Section 5.1 Entity Existence.  Each Loan Party and each Subsidiary thereof (a) is duly  incorporated or organized, as the case may be, validly existing, and in good standing under the  Laws of the jurisdiction of its incorporation or organization; (b) has all requisite power and  authority to own its assets and carry on its business as now being or as proposed to be conducted;  and (c) is qualified to do business in all jurisdictions in which the nature of its business makes such  qualification necessary and where failure to so qualify could reasonably be expected to have a  Material Adverse Effect.  Each of the Loan Parties has the power and authority to execute, deliver,  and perform its obligations under this Agreement and the other Loan Documents to which it is or  may become a party.  Section 5.2 Financial Statements; Etc.  The Borrower Representative has delivered to  Administrative Agent audited consolidated financial statements of Holdings and its Subsidiaries  as of and for the fiscal year ended December 31, 2020.  Such financial statements are true and  correct in all material respects, have been prepared in accordance with GAAP, and fairly and  accurately present, on a consolidated basis, the financial condition of Holdings and its Subsidiaries  as of the respective dates indicated therein and the results of operations for the respective periods  indicated therein.  Neither Holdings nor any of its Subsidiaries has any material contingent  liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or  anticipated losses from any unfavorable commitments except as referred to or reflected in such  financial statements.  No Material Adverse Effect and no circumstance which could reasonably be  expected to result in a Material Adverse Effect has occurred since the date of the most recent  audited financial statements referred to in this Section 5.2.  All projections delivered by Holdings  or the Borrower Representative to Administrative Agent and Lenders have been prepared in good  faith, with care and diligence and using assumptions that are reasonable under the circumstances  at the time such projections were prepared and delivered to Administrative Agent and Lenders and  all such assumptions are disclosed in the projections.  Other than the Debt listed on Schedule 7.1  and Debt otherwise permitted by Section 7.1, Holdings and each Subsidiary have no Debt.  Section 5.3 Action; No Breach.  The execution, delivery, and performance by each  Loan Party of this Agreement and the other Loan Documents to which such Person is or may  become a party and compliance with the terms and provisions hereof and thereof have been duly  authorized by all requisite action on the part of such Person and do not and will not (a) violate or  conflict with, or result in a breach of, or require any consent under (i) the Constituent Documents  of such Person (if such Person is not a natural person), (ii) any applicable Law, rule, or regulation  or any order, writ, injunction, or decree of any Governmental Authority or arbitrator, or (iii) any  





 






  CREDIT AGREEMENT – Page 97    agreement or instrument to which such Person is a party or by which it or any of its Properties is  bound or subject which could reasonably be expected to have a Material Adverse Effect, or  (b) constitute a default under any such agreement or instrument which could reasonably be  expected to have a Material Adverse Effect, or result in the creation or imposition of any Lien  upon any of the revenues or assets of such Person.  Section 5.4 Operation of Business.  Each Loan Party and its Subsidiaries possesses all  licenses, permits, consents, authorizations, franchises, patents, copyrights, trademarks, and trade  names, or rights thereto, necessary to conduct its respective businesses substantially as now  conducted and as presently proposed to be conducted, and, to the knowledge of the Loan Parties,  no Loan Party or any of its Subsidiaries is in violation of any valid rights of others with respect to  any of the foregoing which could reasonably be expected to have a Material Adverse Effect.  Section 5.5 Litigation and Judgments.  Except as specifically disclosed in  Schedule 5.5, as of the date hereof, there is no action, suit, investigation, or proceeding before or  by any Governmental Authority or arbitrator pending, or to the knowledge of any Loan Party,  threatened against or affecting any Loan Party or any of its Subsidiaries or against any of their  Properties that could, if adversely determined, reasonably be expected to have a Material Adverse  Effect.  As of the Closing Date, there are no outstanding judgments against any Loan Party or any  of its Subsidiaries.  Since the date hereof,  to the knowledge of the Loan Parties, there has been no  adverse change in the status of any matter set forth on Schedule 5.5 that, taking into account the  availability of any appeals, could reasonably be expected to increase materially the likelihood of a  Material Adverse Effect resulting therefrom.  Section 5.6 Rights in Properties; Liens.  (a) Each Loan Party and its Subsidiaries has good and indefeasible title to or  valid leasehold interests in its respective Properties, including the Properties reflected in  the financial statements described in Section 5.2, and none of the Properties of any Loan  Party or any of its Subsidiaries is subject to any Lien, except Permitted Liens.  (b) Schedule 5.6(b) sets forth a complete and accurate list of all real Property  owned by each Loan Party and each of its Subsidiaries on the Closing Date, showing as of  the date hereof the street address, county or other relevant jurisdiction, state and record  owner thereof.  Each Loan Party and each of its Subsidiaries has good, indefeasible and  insurable fee simple title to the real Property owned by such Loan Party or such Subsidiary,  subject to Permitted Liens and easements, rights of way and restrictions of record.  (c) Schedule 5.6(c) sets forth a complete and accurate list of all Leases under  which any Loan Party or any of its Subsidiaries is the lessee on the Closing Date, showing  as of the date hereof the street address, county or other relevant jurisdiction, state, lessor,  lessee, expiration date and annual rental cost thereof.  Each such Lease is a legal, valid and  binding obligation of the lessor thereof, enforceable in accordance with its terms, except  as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other  applicable Laws relating to or affecting generally the enforcement of creditors’ rights and  except to the extent that availability of the remedy of specific performance or injunctive  relief is subject to the discretion of the court before which any proceeding therefor may be  





 






  CREDIT AGREEMENT – Page 98    brought.  Except to the extent agreed to by Administrative Agent, each Loan Party has  provided Administrative Agent with Collateral Access Agreements with respect to all real  estate Leases, each of which Collateral Access Agreements has been duly executed by the  landlord or such landlord’s duly authorized representative (as set forth on Schedule 5.6(c))  and each of which Collateral Access Agreements is, to the actual knowledge of each Loan  Party, fully enforceable under the terms and conditions of the Leases and applicable state,  local or municipal law; provided that to the extent a Collateral Access Agreement has not  been provided for such location, a Rent Reserve for rent, charges and other amounts due  or to become due with respect to such Lease may be established by Administrative Agent  in its Permitted Discretion.    Section 5.7 Enforceability.  This Agreement constitutes, and the other Loan  Documents to which any Loan Party is a party, when delivered, shall constitute legal, valid, and  binding obligations of such Person, enforceable against such Person in accordance with their  respective terms, except as limited by Debtor Relief Laws.  Section 5.8 Approvals.  No authorization, approval, or consent of, and no filing or  registration with, any Governmental Authority or third party (other than filings and registrations  to perfect Liens) is or will be necessary for the execution, delivery, or performance by any Loan  Party of this Agreement and the other Loan Documents to which such Person is or may become a  party or the validity or enforceability thereof.  Section 5.9 Taxes.  Each Loan Party and its Subsidiaries has filed on a timely basis all  Tax Returns required to be filed, including all income, franchise, employment, Property, and sales  Tax Returns. To the knowledge of the Loan Parties, each such Tax Return is true, correct and  complete in all respects. Each Loan Party and its Subsidiaries has paid all of its respective liabilities  for Taxes, assessments, governmental charges, and other levies that are due and payable (whether  or not shown on any Tax Return), other than Taxes, if any, set forth on Schedule 5.9, the payment  of which is being contested in good faith and by appropriate proceedings and reserves for the  payment of which are being maintained in accordance with GAAP.  Each Loan Party knows of no  pending investigation of any Loan Party or any of its Subsidiaries by any taxing authority or of  any pending but unassessed tax liability of any Loan Party or any of its Subsidiaries.  No claim  has ever been made or, to the actual knowledge of the Loan Parties, is expected to be made by any  Governmental Authority in a jurisdiction where any Loan Party or its Subsidiaries does not file  Tax Returns that it is or may be subject to taxation by that jurisdiction. Each Loan Party and its  Subsidiaries has not given or been requested to give waivers or extensions (or is or would be  subject to a waiver or extension given by any other Person) of any statute of limitations relating to  the payment of Taxes of each Loan Party or its Subsidiaries or for which each Loan Party or its  Subsidiaries may be liable. No Loan Party or any Subsidiary thereof is, or has been  party to any  Tax sharing agreement, Tax allocation agreement, Tax indemnity obligation or similar written or  unwritten agreement, arrangement, understanding or practice with respect to Taxes.  Section 5.10 Use of Proceeds; Margin Securities.  The proceeds of the Revolving  Credit Borrowings shall be used by Borrowers for working capital in the ordinary course of  business, capital expenditures and other general corporate purposes.  No Loan Party nor any of its  Subsidiaries is engaged principally, or as one of its important activities, in the business of  extending credit for the purpose of purchasing or carrying margin stock (within the meaning of  





 






  CREDIT AGREEMENT – Page 99    Regulations T, U, or X of the Board of Governors), and no part of the proceeds of any Loan will  be used to purchase or carry any margin stock or to extend credit to others for the purpose of  purchasing or carrying margin stock.  No part of the proceeds of any Loan will be used directly or  indirectly to fund any operations in, finance any investments or activities in or make any payments  to, a Sanctioned Person, or in any other manner that will result in any violation by any Person  (including any Lender, any Arranger or Administrative Agent) of any Anti-Terrorism Laws, Anti- Corruption Laws or any Sanctions.  Section 5.11 ERISA.  Each Plan that is intended to qualify under Section 401(a) of the  Code has received a favorable determination letter from the IRS or an application for such a letter  is currently being processed by the IRS with respect thereto and, to the knowledge of each Loan  Party, nothing has occurred which would prevent, or cause the loss of, such qualification.  No  application for a funding waiver or an extension of any amortization period pursuant to Section 412  of the Code has been made with respect to any Plan.  There are no pending or, to the knowledge  of any Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority  with respect to any Plan or Multiemployer Plan that could reasonably be expected to have a  Material Adverse Effect.  There has been no Prohibited Transaction or violation of the fiduciary  responsibility rules with respect to any Plan or Multiemployer Plan that could be reasonably  expected to have a Material Adverse Effect.  No ERISA Event has occurred, and no Loan Party is  aware of any facts, events or circumstances that, either individually or in the aggregate, could in  each case reasonably be expected to have a Material Adverse Effect.  No Plan has any Unfunded  Pension Liability.  No Multiemployer Plan is insolvent within the meaning of Section 4245 of  ERISA.  No Loan Party or ERISA Affiliate has incurred, or reasonably expects to incur, any  liability under Title IV of ERISA with respect to any Plan (other than premiums due and not  delinquent under Section 4007 of ERISA).  No Loan Party or ERISA Affiliate has incurred, or  reasonably expects to incur, any liability (and no event has occurred which, with the giving of  notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA  with respect to a Multiemployer Plan.  No Loan Party or ERISA Affiliate has engaged in a  transaction that could be subject to Section 4069 or 4212(c) of ERISA.  Section 5.12 Disclosure.    (a) No statement, information, report, representation, or warranty made by any  Loan Party in this Agreement or in any other Loan Document or furnished to  Administrative Agent or any Lender in connection with this Agreement or any of the  transactions contemplated hereby contains any untrue statement of a material fact or omits  to state any material fact necessary to make the statements herein or therein not misleading.   There is no fact known to any Loan Party which could reasonably be expected to have a  Material Adverse Effect, or which might in the future could reasonably be expected to have  a Material Adverse Effect that has not been disclosed in writing to Administrative Agent  and each Lender.  (b) As of the Closing Date, the information included in the Beneficial  Ownership Certification is true and correct in all respects.  Section 5.13 Subsidiaries.  No Loan Party has any Subsidiaries other than those listed  on Schedule 5.13 (and, if subsequent to the Closing Date, such additional Domestic Subsidiaries  





 






  CREDIT AGREEMENT – Page 100    as have been formed or acquired in compliance with Section 6.13 and to the extent permitted to  be acquired by this Agreement) and Schedule 5.13 sets forth the jurisdiction of incorporation or  organization of each Subsidiary and the percentage of each Loan Party’s ownership interest in such  Subsidiary.  All of the outstanding capital stock or other Equity Interests of each Subsidiary  described on Schedule 5.13 have been validly issued, are fully paid, and are nonassessable. There  are no outstanding subscriptions, options, warrants, calls, rights or other agreements or  commitments of any nature relating to any Equity Interests of any Loan Party or any Subsidiary  except for options granted to employees of Holdings.  Section 5.14 Agreements.  No Loan Party nor any of its Subsidiaries is a party to any  indenture, loan, or credit agreement, or to any lease or other agreement or instrument, or subject  to any charter or corporate or other organizational restriction, in each case which could,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No  Loan Party nor any of its Subsidiaries is in default in any respect in the performance, observance,  or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or  instrument material to its business to which it is a party which could, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect.  Section 5.15 Compliance with Laws.  No Loan Party nor any of its Subsidiaries is in  violation of any Law, rule, regulation, order, or decree of any Governmental Authority or arbitrator  where such violation could, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.  Section 5.16 Inventory.  All Inventory of each Loan Party and its Subsidiaries has been  and will hereafter be produced or maintained in compliance with all applicable Laws, rules,  regulations, and governmental standards, including, without limitation, the minimum wage and  overtime provisions of the Fair Labor Standards Act (29 U.S.C. §§ 201-219).  Section 5.17 Regulated Entities.  No Loan Party nor any of its Subsidiaries is (a) an  “investment company” or a company “controlled” by an “investment company” within the meaning  of the Investment Company Act of 1940 or (b) subject to regulation under any other federal or  state statute, rule or regulation limiting its ability to incur Debt, pledge its assets or perform its  obligations under the Loan Documents.  No Loan Party is an Affected Financial Institution.  Section 5.18 Environmental Matters.  (a) To the actual knowledge of the Loan Parties, each Loan Party and its  Subsidiaries, and all of their respective Properties, assets, and operations, are in compliance  with all Environmental Laws.  No Loan Party is aware of, nor has any Loan Party received  notice of, any past, present, or future conditions, events, activities, practices, or incidents  which may interfere with or prevent the compliance or continued compliance of each Loan  Party and its Subsidiaries with all Environmental Laws;  (b) Each Loan Party and its Subsidiaries has obtained all permits, licenses, and  authorizations that are required under applicable Environmental Laws, and all such permits  are in good standing and each Loan Party and its Subsidiaries are in compliance with all of  the terms and conditions of such permits;  





 






  CREDIT AGREEMENT – Page 101    (c) To the actual knowledge of the Loan Parties, no Hazardous Materials exist  on, about, or within, or have been used, generated, stored, transported, disposed of on, or  Released from, any of the Properties or assets of any Loan Party or any of its Subsidiaries  in violation of, or in a manner or to a location that could give rise to liability under, any  applicable Environmental Laws.  The use which each Loan Party and its Subsidiaries make  and intend to make of their respective Properties and assets will not result in the use,  generation, storage, transportation, accumulation, disposal, or Release of any Hazardous  Material on, in, or from any of their Properties or assets in violation of, or in a manner that  could give rise to liability under, any applicable Environmental Laws;  (d) No Loan Party or any of its Subsidiaries nor any of their respective currently  or previously owned or leased Properties or operations is subject to any outstanding or, to  the actual knowledge of the Loan Parties, threatened order from or agreement with any  Governmental Authority or other Person or subject to any judicial or docketed  administrative proceeding with respect to (i) any failure to comply with Environmental  Laws, (ii) any Remedial Action, or (iii) any Environmental Liabilities arising from a  Release or threatened Release;  (e) To the actual knowledge of the Loan Parties, there are no conditions or  circumstances associated with the currently or previously owned or leased Properties or  operations of any Loan Party or any of its Subsidiaries that could reasonably be expected  to give rise to any Environmental Liabilities;  (f) No Loan Party nor any of its Subsidiaries is a treatment, storage, or disposal  facility requiring a permit under the Resource Conservation and Recovery Act, 42 U.S.C.  § 6901 et seq., regulations thereunder or any comparable provision of state Law.  Each  Loan Party and its Subsidiaries are in compliance with all applicable financial  responsibility requirements of all Environmental Laws;  (g) No Loan Party nor any of its Subsidiaries has filed or failed to file any notice  required under applicable Environmental Law reporting a Release; and  (h) No Lien arising under any Environmental Law has attached to any Property  or revenues of any Loan Party or any of its Subsidiaries.  Section 5.19 Intellectual Property.  Each Loan Party and each of its Subsidiaries owns,  or is licensed to use, all Intellectual Property necessary to conduct its business as currently  conducted except for such Intellectual Property the failure of which to own or license could not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Section 5.20 Anti-Corruption Laws; Sanctions; Etc.  (a) No Loan Party, Subsidiary, Affiliate of any Loan Party or, to the knowledge  of any Loan Party, any director, officer, employee, agent, or Affiliate of a Loan Party or  any of its Subsidiaries is an individual or entity (“person”) that is, or is owned or Controlled  by persons any person that are:  (i) is a Sanctioned Person or is currently the subject or  target of any Sanctions, or (ii) is located, organized or resident in a country or territory that  





 






  CREDIT AGREEMENT – Page 102    is, or whose government is, or has assets, the subject of Sanctions (including, Crimea,  Cuba, Iran, North Korea, Sudan and Syria)in a Sanctioned Country.  (b) The Loan Parties, their Subsidiaries and their respective directors, officers  and employees and, to the knowledge of the Loan Parties, the agents of the Loan Parties  and their Subsidiaries, are in compliance with all applicable Sanctions and with the FCPA  and any other applicable Anti-Corruption Law, in all material respects.  Each Loan Party  and its Subsidiaries have instituted and maintain policies and procedures designed to  promote and achieve continued compliance with applicable Sanctions, the FCPA and any  other applicable Anti-Corruption Laws.  Section 5.21 Patriot Act.  The Loan Parties, each of their Subsidiaries, and each of their  Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign  assets control regulations of the United States Treasury Department (31 CFR, Subtitle B  Chapter V, as amended), and all other enabling legislation or executive order relating thereto,  (b) the Patriot Act, and (c) all other federal or state Laws relating to “know your customer”  (collectively, the “Anti-Terrorism Laws”).  Section 5.22 Insurance.  The Properties of each Loan Party and its Subsidiaries are  insured with, to the actual knowledge of the Loan Parties, financially sound and reputable  insurance companies, in such amounts, with such deductibles and covering such risks as are  customarily carried by companies engaged in similar businesses and owning similar Properties in  localities where such Loan Party or the applicable Subsidiary operates.  Any Properties of each  Loan Party and its Subsidiaries that are located at a customer job location shall be insured by the  applicable customer in the ordinary course of such Loan Party or Subsidiary’s business.  Section 5.23 Solvency.  After giving effect to the transactions contemplated hereby  (including each Credit Extension hereunder), (a) the aggregate assets (after giving effect to  amounts that could reasonably be received by reason of indemnity, offset, insurance or any similar  arrangement), at a fair valuation, of the Loan Parties, taken as a whole, will exceed the aggregate  liabilities of the Loan Parties on a consolidated basis, as their liabilities become absolute and  mature, (b) each of the Loan Parties will not have incurred or intended to incur, and will not believe  that it will incur, liabilities beyond its ability to pay such liabilities (after taking into account the  timing and amounts of cash to be received by each of the Loan Parties and the amounts to be  payable on or in respect of its liabilities, and giving effect to amounts that could reasonably be  received by reason of indemnity, offset, insurance or any similar arrangement) as such liabilities  become absolute and mature, and (c) each of the Loan Parties will not have (and will have no  reason to believe that it will have thereafter) unreasonably small capital for the conduct of its  business.  Section 5.24 Security Documents.  The provisions of the Security Documents are  effective to create in favor of Administrative Agent for the benefit of the Secured Parties a legal,  valid and enforceable Lien (subject to Permitted Liens) on all right, title and interest of the  respective Loan Parties party thereto in the Collateral.  Except for filings completed prior to the  Closing Date and as contemplated hereby and by the Security Documents, no filing or other action  will be necessary to perfect such Liens in Collateral.  





 






  CREDIT AGREEMENT – Page 103    Section 5.25 Labor Matters.  There are no labor controversies pending, or to the best  knowledge of any Loan Party, threatened against any Loan Party or any of its Subsidiaries which  could reasonably be expected to have a Material Adverse Effect.  Section 5.26 Material Agreements.  Schedule 5.26 sets forth a complete and correct list  of all agreements in effect or to be in effect on the Closing Date and on the date of each update  thereof required hereunder, to the extent that a default, breach, termination or other impairment  thereof could reasonably be expected to have a Material Adverse Effect.  Section 5.27 Additional Representations of Guarantors.  Each Guarantor (a) has  received, or will receive, direct or indirect benefit from the making of the Guaranty and the  Obligations, and (b) is familiar with, and has independently reviewed the books and records  regarding, the financial condition of Borrowers and is familiar with the value of any and all  Collateral intended to be created as security for the payment of the Obligations, but such Guarantor  is not relying on such financial condition, such Collateral, or the agreement of any other party as  an inducement to enter into this Agreement and provide the Guaranty. Each Guarantor confirms  that neither Administrative Agent, any Lender, any other Guarantor, nor any other party has made  any representation, warranty or statement to such Guarantor in order to induce such Guarantor to  execute this Agreement and provide the Guaranty.  Section 5.28 Qualified ECP Guarantor.  Holdings is a Qualified ECP Guarantor.  Section 5.29 Plan Assets; Prohibited Transactions.  No Loan Party or any of its  Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset  Regulations), and neither the execution, delivery nor performance of the transactions contemplated  under this Agreement, including the making of any Loan and the issuance of any Letter of Credit  hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or  Section 4975 of the Code.  ARTICLE 6.    AFFIRMATIVE COVENANTS  Each Loan Party covenants and agrees that, as long as the Obligations or any part thereof  are outstanding or any Letter of Credit is outstanding or any Lender has any Commitment  hereunder:  Section 6.1 Reporting Requirements.  Borrowers will furnish, or cause to be  furnished, to Administrative Agent (with copies for each Lender upon Administrative Agent’s  request):  (a) Annual Financial Statements.  As soon as available, and in any event  within one hundred twenty (120) days after the last day of each fiscal year of Holdings (or,  if earlier, on the date on which such financial statements are required to be filed with the  SEC after giving effect to any permitted extensions pursuant to Rule 12b-25 under the  Exchange Act)), beginning with the fiscal year ending December 31, 2021, a copy of the  annual audit report of Holdings and its Subsidiaries for such fiscal year containing, on a  consolidated basis, balance sheets and statements of income, retained earnings, and cash  





 






  CREDIT AGREEMENT – Page 104    flow as of the end of such fiscal year and for the twelve (12)-month period then ended, in  each case setting forth in comparative form the figures for the preceding fiscal year, all in  reasonable detail and audited and certified by Moss Adams LLP or any other independent  certified public accountants of recognized standing acceptable to Administrative Agent, to  the effect that such report has been prepared in accordance with GAAP, consistent with the  audited financial statements for the 2020 fiscal year delivered to Administrative Agent and  containing no material qualifications or limitations on scope;  (b) Quarterly Financial Statements.  As soon as available, and in any event  within forty-five (45) days (or, if earlier, on the date on which such financial statements  are required to be filed with the SEC after giving effect to any permitted extensions  pursuant to Rule 12b-25 under the Exchange Act)) after the last day of each fiscal quarter,  a copy of an unaudited financial report of Holdings and its Subsidiaries as of the end of  such fiscal quarter and for the portion of the fiscal year then ended, containing, on a  consolidated (and consolidating, if requested by Administrative Agent) basis, respectively,  balance sheets and statements of income, retained earnings, and cash flow, in each case  setting forth in comparative form and figures for the corresponding period of the preceding  fiscal year, all in reasonable detail certified by a Responsible Officer of Holdings to have  been prepared in accordance with GAAP and to fairly and accurately present (subject to  year-end audit adjustments) the financial condition and results of operations of Holdings  and its Subsidiaries, on a consolidated (and consolidating, if requested by Administrative  Agent) basis, as of the dates and for the periods indicated therein;  (c) Borrowing Base Report.  As soon as available, and in any event within  twenty-five (25) days after the last day of each fiscal month, a Borrowing Base Report,  calculating the Borrowing Base and reflecting the components of the Borrowing Base,  including (i) Eligible Accounts of each of the Borrowers as of the end of the preceding  month and calculating the advance amounts based thereon, (ii) Eligible Inventory, Eligible  Compressors and Eligible New Compressor Fleet of each of the Borrowers as of the end  of the preceding month and calculating the advance amounts based thereon, and (iii) such  worksheets detailing the Accounts excluded from Eligible Accounts and Inventory  (including Compressor Units and Compressor Components) excluded from Eligible  Inventory, Eligible Compressors and Eligible New Compressor Fleet and the reason for  such exclusion; provided that if a Trigger Period is in effect, the Administrative Agent in  its Permitted Discretion may require a Borrowing Base Report and related documentation  to be furnished on either a weekly or bi-weekly basis, as the case may be, with such  Borrowing Base Report and related documentation to be delivered to the Administrative  Agent, if so requested, on or before the third (3rd) Business Day of such week, and such  report shall also reflect the amount of sales and receipts of Borrowers during the preceding  period and such other information as Administrative Agent may reasonably request;  (d) Compliance Certificate.  Concurrently with the delivery of each of the  financial statements referred to in Section 6.1(a) and Section 6.1(b), a Compliance  Certificate (i) certifying, in the case of such financial statements delivered under Sections  6.1(a) and 6.1(b), as applicable, that such statements present fairly in all material respects  the financial condition and results of operations of Holdings and its Subsidiaries on a  consolidated basis in accordance with GAAP consistently applied, subject to normal year- 





 






  CREDIT AGREEMENT – Page 105    end audit adjustments and the absence of footnotes, (ii) stating that to the best of the  knowledge of the Responsible Officer executing same, no Default has occurred and is  continuing, or if a Default has occurred and is continuing, a statement as to the nature  thereof and the action which is proposed to be taken with respect thereto, (iii) showing in  reasonable detail the calculations demonstrating compliance with the covenants set forth  in Article 8 and calculation of the Leverage Ratio for purposes of calculating the  Applicable Margin, (iv) stating whether any change in GAAP or in the application thereof  has occurred since the date of the audited financial statements most recently delivered  pursuant to Section 6.1(a) above and, if any such change has occurred, specifying the effect  of such change on the financial statements accompanying such certificate and (v)  containing such other certifications set forth therein.  For any financial statements delivered  electronically by a Responsible Officer in satisfaction of the reporting requirements set  forth in clause (a) or (b) preceding that are not accompanied by the required Compliance  Certificate, that Responsible Officer shall nevertheless be deemed to have certified the  factual matters described in this clause (d) with respect to such financial statements;  however, such deemed certificate shall not excuse or be construed as a waiver of Holdings’  obligation to deliver the required Compliance Certificate;  (e) Projections.  Commencing with respect to the fiscal year ending December  31, 2021, as soon as available, but in any event not earlier than thirty (30) days before and  not later than forty-five (45) days after the end of each fiscal year of Holdings, forecasts  prepared by management of Holdings, in form and substance satisfactory to Administrative  Agent, of consolidated balance sheets of income or operations and cashflows of Holdings  and its Subsidiaries on a monthly basis for the immediately following fiscal year;  (f) Notice of Litigation.  Promptly after the commencement thereof, notice of  all actions, suits, and proceedings before any Governmental Authority or arbitrator  affecting any Loan Party or any of its Subsidiaries which, if determined adversely to such  Loan Party or such Subsidiary, could reasonably be expected to have a Material Adverse  Effect;  (g) Notice of Default.  As soon as possible and in any event within five (5)  days after any Loan Party has knowledge of the occurrence of any Default, a written notice  setting forth the details of such Default and the action that the applicable Loan Party has  taken and proposes to take with respect thereto;  (h) ERISA Reports.  Promptly after the filing or receipt thereof, copies of all  reports, including annual reports, and notices which any Loan Party or ERISA Affiliate  files with or receives from the PBGC, the IRS, or the U.S. Department of Labor under  ERISA; as soon as possible and in any event within five (5) days after any Loan Party or  any ERISA Affiliate knows or has reason to know that any ERISA Event or Prohibited  Transaction has occurred with respect to any Plan or Multiemployer Plan, a certificate of  the chief financial officer or other Responsible Officer of the applicable Loan Party setting  forth the details as to such ERISA Event or Prohibited Transaction and the action that the  applicable Loan Party proposes to take with respect thereto; annually, a copy of the notice  described in Section 101(f) of ERISA that any Loan Party or ERISA Affiliate files or  receives with respect to a Plan or Multiemployer Plan;  





 






  CREDIT AGREEMENT – Page 106    (i) Updates to Security Document Schedules.  Upon Administrative Agent’s  written request, at the time of delivery of the Compliance Certificate delivered in  connection with the applicable financial statements pursuant to Sections 6.1(a) and 6.1(b),  updates to all Schedules to the Security Documents to the extent that information contained  in such Schedules has become inaccurate or incomplete since delivery thereof and such  Schedules are required to be updated from time to time pursuant to the terms of the  applicable Security Document; provided, however, Borrower shall not be required to  update such Schedules more than once in any twelve (12) month period absent an Event of  Default that is continuing;  (j) Insurance.  Upon Administrative Agent’s request, at the time of delivery  of the Compliance Certificate delivered in connection with the annual financial statements  pursuant to Section 6.1(a), a report summarizing the insurance coverage (specifying type,  amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such  additional information as Administrative Agent, or any Lender through Administrative  Agent, may reasonably specify; provided, however, Borrower shall not be required to  provide such summary report more than once in any twelve (12) month period absent an  Event of Default that is continuing;  (k) Notice of Material Adverse Effect.  As soon as possible and in any event  within five (5) days after any Loan Party has knowledge of the occurrence thereof, written  notice of any event or circumstance that could reasonably be expected to have a Material  Adverse Effect;   (l) Inventory Report.  As soon as available, and in any event within twenty- five (25) days (or earlier if a Trigger Period is in effect) after the end of each fiscal month,  an Inventory report, in form and detail as Administrative Agent shall reasonably require,  certified by a Responsible Officer of the Borrower Representative, reconciling such  Inventory report with the Borrowing Base Report;  (m) Account Agings.  As soon as available and in any event within twenty-five  (25) days (or earlier if a Trigger Period is in effect) after the end of each fiscal month,  consolidated and consolidating agings of all accounts payable and accounts receivable of  the Borrowers (the “Account Agings”) showing each such account which is current and  each such account which is thirty (30), sixty (60), ninety (90), and over ninety (90) days  past invoice date and, with respect to accounts receivable, reconciling such aging with the  Borrowing Base Reports;  (n) Monthly Customer Statements.  If requested by Administrative Agent, as  soon as available and in any event within twenty-five (25) days (or earlier to the extent  available and a Trigger Period is then in effect) after the end of each fiscal month, monthly  customer statements of the Borrowers;  (o) Notice of Certain Changes.  Promptly, (i) notice of any material change in  the business conducted or otherwise permitted under this Agreement by any Loan Party or  any of its Subsidiaries, (ii) copies of any amendment, restatement, supplement or other  modification to any of the Constituent Documents of any Loan Party or any of its  





 






  CREDIT AGREEMENT – Page 107    Subsidiaries and (iii) notice of any change in the information provided in the Beneficial  Ownership Certification that would result in a change to the list of beneficial owners  identified in parts (c) or (d) of such certification;   (p) Management Letters.  Promptly upon receipt thereof, a copy of any  management letter or written report submitted to Holdings or any of its Subsidiaries by  independent certified public accountants with respect to the business, condition (financial  or otherwise), operations, prospects, or Properties of Holdings or any of its Subsidiaries;  (q) General Information.  Promptly, such other information concerning any  Loan Party, any of its Subsidiaries or any of their respective Properties as Administrative  Agent, or any Lender through Administrative Agent, may from time to time request,  including, without limitation, any certification or other evidence Administrative Agent  requests in order for it to (i) comply with any applicable federal or state Laws or regulations  (including, but not limited to, information about the ownership and management of any  Loan Party), (ii) confirm compliance by any Loan Party with all Anti-Terrorism Laws, and  (iii) confirm that no Loan Party (nor any Person owning any interest of any nature  whatsoever in any Loan Party) is a Sanctioned Person; and  (r) Additional Information.  If requested by Administrative Agent, (i) cash  receipt journals or copies of checks, invoices for new billings, sales journals and backup  for all miscellaneous credits and debits, purchases journals and cost of goods sold reports  and inventory reports, which support a Borrowing Base report, (ii) a schedule detailing  each Borrower’s Inventory, in form satisfactory to Administrative Agent, (A) by location  (showing Inventory in transit and any Inventory located with a third party under any  consignment, bailee arrangement or warehouse agreement), by product type (including  Compressor Units and Compressor Components), and by volume on hand, which Inventory  shall be valued at the lower of cost or market (which approximates cost) and adjusted for  Availability Reserves as Administrative Agent has previously indicated to the Borrowers  are deemed by Administrative Agent to be appropriate, and (B) including a report of any  variances or other results of Inventory counts performed by the Borrowers since the last  Inventory schedule (including information regarding sales or other reductions, additions,  returns, credits issued by the Borrowers and complaints and claims made against any  Borrower) and (iii) a status report regarding each gas compression agreement covering any  Compressor Unit, including whether such servicing agreement has been amended, restated,  modified or terminated during such period and delivering a copy of any new gas  compression agreement or any amendment, modification or termination of any gas  compression agreement.  All representations and warranties set forth in the Loan Documents with respect to any financial  information concerning any Loan Party shall apply to all financial information delivered to  Administrative Agent by such Loan Party, or any Person purporting to be a Responsible Officer  of such Loan Party or other representative of such Loan Party regardless of the method of such  transmission to Administrative Agent or whether or not signed by such Loan Party, or such  Responsible Officer or other representative, as applicable.  





 






  CREDIT AGREEMENT – Page 108    Section 6.2 Maintenance of Existence; Conduct of Business.  Each Loan Party shall,  and shall cause each of its Subsidiaries to, preserve and maintain its existence and all of its leases,  privileges, licenses, permits, franchises, qualifications, and rights that are necessary or desirable  in the ordinary conduct of its business, except to the extent a failure to so preserve and maintain  could not reasonably be expected to have a Material Adverse Effect.  Each Loan Party shall, and  shall cause each of its Subsidiaries to, conduct its business in an orderly and efficient manner in  accordance with good business practices.  Section 6.3 Maintenance of Properties.  Each Loan Party shall, and shall cause each  of its Subsidiaries to, maintain, keep, and preserve all of its Properties (tangible and intangible)  necessary or useful in the proper conduct of its business in good working order and condition  (reasonable wear and tear excepted).  Section 6.4 Taxes and Claims.  Each Loan Party shall, and shall cause each of its  Subsidiaries to, pay or discharge at or before maturity or before becoming delinquent (a) all Taxes,  levies, assessments, and governmental charges imposed on it or its income or profits or any of its  Property, and (b) all lawful claims for labor, material, and supplies, which, if unpaid, might  become a Lien upon any of its Property; provided, however, that no Loan Party nor any of its  Subsidiaries shall be required to pay or discharge any Tax, levy, assessment, or governmental  charge which is being contested in good faith by appropriate proceedings diligently pursued, and  for which adequate reserves in accordance with GAAP have been established.  Section 6.5 Insurance. Each Loan Party shall, and shall cause each of its  Subsidiaries to, maintain insurance with financially sound and reputable insurance companies  reasonably satisfactory to Administrative Agent in such amounts and covering such risks as is  usually carried by companies engaged in similar businesses and owning similar Properties in the  same general areas in which such Loan Party and its Subsidiaries operate, provided that in any  event each Loan Party will maintain and cause each of its Subsidiaries to maintain workmen’s  compensation insurance, property insurance, comprehensive general liability insurance and  business interruption insurance with coverage amounts and deductibles reasonably satisfactory to  Administrative Agent.    Each insurance policy shall name Administrative Agent as lender loss  payee or additional insured, as applicable, and each such insurance policy shall provide that such  policy will not be cancelled or reduced without 30 days’ (or 10 days in the case of nonpayment of  premium) prior written notice to Administrative Agent.  Each Loan Party shall execute and deliver  to Administrative Agent a collateral assignment, in form and substance satisfactory to  Administrative Agent, of each business interruption insurance policy maintained by such Loan  Party.  Any Properties of each Loan Party and its Subsidiaries that are located at a customer job  location shall be insured by the applicable customer in the ordinary course of such Loan Party or  Subsidiary’s business.  Section 6.6 Inspection Rights; Third-Party Field Examinations; Third-Party  Appraisals.  (a) Each Loan Party shall, and shall cause each of its Subsidiaries to, permit  representatives and independent contractors of Administrative Agent and each Lender (i)  to examine, inspect, review, evaluate and make physical verifications of the Inventory  (including Compressor Units) and other Collateral in any manner and through any medium  





 






  CREDIT AGREEMENT – Page 109    that Administrative Agent or such Lender considers advisable, (ii) to visit and inspect its  Properties, (iii) to examine its corporate, financial and operating records, and make copies  thereof or abstracts therefrom and (iv) to discuss its affairs, business, operations, financial  condition and accounts with its directors, officers, employees and independent certified  public accountants, all at the expense of Borrowers and at such reasonable times during  normal business hours and as often as may be reasonably requested; provided that, other  than with respect to such visits and inspections during the continuance of an Event of  Default, (A) only Administrative Agent on behalf of the Lenders may exercise rights under  this clause (a) and (B) Administrative Agent shall not exercise such rights more often than  one time during any period of twelve (12) consecutive months (or two times in the event a  Trigger Period occurs or is in effect during such period); provided, further, that when an  Event of Default exists and is continuing, the Administrative Agent or any Lender (or any  of their respective representatives or independent contractors) may do any of the foregoing  under this Section at the expense of Borrowers and at any time during normal business  hours and without advance notice.  (b) Each Loan Party shall, and shall cause each of its Subsidiaries to, permit  any representatives designated by Administrative Agent (including any consultants,  accountants, lawyers and appraisers retained by Administrative Agent) to conduct third- party field exams of the Accounts of the Loan Parties all at the expense of Borrowers  (subject to the limitations set forth in this clause (b)) and at such reasonable times. The  Loan Parties shall be responsible for the costs and expenses of (i) one third-party field  examination during any twelve (12) month period or (ii) up to two field examinations  during any twelve (12) month period in the event a Trigger Period occurs or is in effect  during such period.  Additionally, there shall be no limitation on the number or frequency  of third-party field examinations if an Event of Default has occurred and is continuing, and  the Loan Parties shall be responsible for the costs and expenses of any third-party field  examinations incurred as a result thereof and while such Event of Default is continuing.    (c)   (i) Each Loan Party shall, and shall cause each of its Subsidiaries to,  permit any representatives designated by Administrative Agent (including any  consultants, accountants, lawyers and appraisers retained by Administrative Agent)  to conduct third-party appraisals or updates thereof of the Inventory (including  Compressor Units) and Equipment owned by the Loan Parties, all at the expense of  Borrowers (subject to the limitations set forth in this clause (c)) and at such  reasonable times.     (ii) The Loan Parties shall be responsible for the costs and expenses of  (A) one third-party appraisal during any twelve (12) month period or (B) up to two  third-party appraisals during any twelve (12) month period in the event a Trigger  Period occurs or is in effect during such period.  (iii) Additionally, there shall be no limitation on the number or  frequency of third-party appraisals if an Event of Default has occurred and is  continuing, and the Loan Parties shall be responsible for the costs and expenses of  





 






  CREDIT AGREEMENT – Page 110    any third-party appraisals incurred as a result thereof while such Event of Default  has occurred and is continuing.  (iv) Notwithstanding anything herein to the contrary, the Loan Parties  shall not be responsible for the costs and expenses of any third-party appraisals  during an Excess Availability Period.  Section 6.7 Keeping Books and Records.  Each Loan Party shall, and shall cause each  of its Subsidiaries to, maintain proper books of record and account in which full, true, and correct  entries in conformity with GAAP shall be made of all dealings and transactions in relation to its  business and activities.  Section 6.8 Compliance with Laws.  Each Loan Party shall, and shall cause each of its  Subsidiaries to, comply in all material respects with all applicable Laws (including, without  limitation, all Anti-Terrorism Laws, Anti-Corruption Laws and applicable Sanctions) and  applicable decrees of any Governmental Authority or arbitrator, except in such instances in which  the failure to comply therewith could not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  Section 6.9 Compliance with Agreements.  Each Loan Party shall, and shall cause  each of its Subsidiaries to, comply in all material respects with all agreements, contracts, and  instruments binding on it or affecting its Properties or business, except to the extent a failure to so  comply could not reasonably be expected to have a Material Adverse Effect.  Section 6.10 Further Assurances.  Each Loan Party shall, and shall cause each of its  Subsidiaries and each other Loan Party to, execute and deliver such further agreements and  instruments and take such further action as may be reasonably requested by Administrative Agent  or any Lender to carry out the provisions and purposes of this Agreement and the other Loan  Documents and to create, preserve, and perfect the Liens of Administrative Agent in the Collateral.  Section 6.11 ERISA.  Each Loan Party shall, and shall cause each of its Subsidiaries to,  comply with all minimum funding requirements, and all other material requirements, of ERISA  and the Code, if applicable, so as not to give rise to any liability thereunder, except to the extent a  failure to so comply could not reasonably be expected to have a Material Adverse Effect.  Section 6.12 Depository Relationship; Control Agreements; Blocked Accounts.   (a) Within ninety (90) days after the Closing Date (or such longer period as  agreed to by the Administrative Agent in its sole discretion), each Loan Party shall, and shall cause  each of its Subsidiaries (other than the Excluded Subsidiary) to, (a) use the financial institution  serving as Administrative Agent as its principal depository bank, including for the maintenance of  business, cash management, operating and administrative deposit accounts, (b) cause all  commodity accounts, deposit accounts and securities accounts (in each case, excluding those  accounts which are Excluded Accounts) held by the Loan Parties as of the Closing Date to be  subject to a Control Agreement in favor of Administrative Agent, in form and substance reasonably  satisfactory to Administrative Agent, which provides that Administrative Agent shall have  exclusive “Control” (as defined in the UCC) of such account and (c) will cause all collection and  





 






  CREDIT AGREEMENT – Page 111    other Receipts to be directed to Blocked Accounts in accordance with Section 2.11.  Loan Parties  will at all times maintain Blocked Accounts required by Section 2.11.  (b) Each Loan Party shall, with respect to each deposit account, securities  account and commodity account (in each case, excluding those accounts which are Excluded  Accounts) that such Loan Party at any opens, maintains or acquires after the Closing Date, such  Loan Party will, substantially contemporaneously with the opening or acquisition of such deposit  account, securities account or commodity account (in each case, excluding those accounts which  are Excluded Accounts), enter into a Control Agreement in form and substance satisfactory to the  Administrative Agent, pursuant to which such Control Agreement shall cause the depository bank  that maintains such deposit account, securities intermediary that maintains such securities account,  or commodities intermediary that maintains such commodity account, as applicable, to agree to  comply at any time with instructions from the Administrative Agent to such depository bank,  securities intermediary or commodities intermediary directing the disposition of funds from time  to time credited to such deposit account, securities account or commodity Account, without further  consent of such Loan Party, or take such other action as the Administrative Agent may approve in  order to perfect the Administrative Agent’s security interest in such deposit account, securities  account or commodity account.  Section 6.13 Additional Loan Parties.    (a) Each Loan Party shall notify Administrative Agent at the time that any  Person becomes a wholly-owned Domestic Subsidiary of such Loan Party (including  pursuant a Permitted Acquisition) or ceases to be an Excluded Subsidiary pursuant to the  definition thereof, and promptly thereafter (and in any event within thirty (30) days (or  such longer period as agreed to by Administrative Agent in its sole discretion)) (i) execute  and deliver or cause to be delivered to Administrative Agent all Security Documents, stock  certificates, stock powers and other agreements and instruments as may be requested by  Administrative Agent to ensure that Administrative Agent has a perfected Lien on all  ownership interests (other than Excluded Assets) held by such Loan Party in such Domestic  Subsidiary, and (ii) cause such new Domestic Subsidiary or Domestic Subsidiary that  ceases to be an Excluded Subsidiary to (A) become a Guarantor and/or a Borrower by  executing and delivering to Administrative Agent a Guaranty (or a joinder to Guaranty)  and/or a Joinder Agreement, (B) execute and deliver all Security Documents (or joinders  or assumptions thereto) requested by Administrative Agent pledging to Administrative  Agent for the benefit of the Secured Parties all of its Property (other than Excluded Assets  or such other exceptions as Administrative Agent may permit) and take all actions required  by Administrative Agent to grant to Administrative Agent for the benefit of Secured Parties  a perfected first priority (subject to Permitted Liens that have priority over the Liens in  favor of the Administrative Agent under applicable law) security interest in such Property,  including entering into a Control Agreements required pursuant to Section 6.12 and the  filing of UCC financing statements in such jurisdictions as may be requested by  Administrative Agent, and (C) deliver to Administrative Agent such other documents and  instruments as Administrative Agent may require, including appropriate favorable opinions  of counsel to such Person in form, content and scope reasonably satisfactory to  Administrative Agent.  





 






  CREDIT AGREEMENT – Page 112    (b) Each Loan Party will cause 100% of the issued and outstanding Equity  Interests of each of its Domestic Subsidiaries (other than the Excluded Subsidiary so long  as such Domestic Subsidiary constitutes an Excluded Subsidiary) to be subject at all times  to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the  Administrative Agent and the other Secured Parties, pursuant to the terms and conditions  of the Loan Documents or other Security Documents as the Administrative Agent shall  reasonably request.  Section 6.14 Sanctions; Anti-Corruption Laws.  Each Loan Party will maintain in  effect policies and procedures designed to promote compliance by such Loan Party, its  Subsidiaries, and their respective directors, officers, employees, and agents with applicable  Sanctions and with the FCPA and any other applicable Anti-Corruption Laws.  Section 6.15 Inventory; Collateral Access Agreements.  If any Loan Party’s Inventory  is located at a location leased by such Loan Party or in the possession or control of any Person  (other than a customer of such Loan Party), the Borrower Representative shall notify the landlord  or such Person, as applicable, of Administrative Agent’s security interest therein and, upon request  by Administrative Agent, instruct such Person to execute a Collateral Access Agreement or  otherwise acknowledge in writing its agreement to hold all such Inventory for the benefit of  Administrative Agent and subject to Administrative Agent’s instructions; provided that if the  Borrower Representative is unable to have such Person execute a Collateral Access Agreement,  then such failure shall not constitute a Default or Event of Default under this Agreement, but  Administrative Agent may establish a Rent Reserve. If the Inventory is located in a third party  warehouse facility under a bailment arrangement with a warehouse operator, bailee, or other third  party and if so requested by Administrative Agent, the Borrower Representative and such other  Loan Parties (as promptly as possible after requested by Administrative Agent but in any event  within fifteen (15) Business Days after any such request is made) will deliver (i) to Administrative  Agent warehouse receipts covering any Loan Party’s Inventory located in such warehouses  showing Administrative Agent as the beneficiary thereof and (ii) to the warehouseman such  agreements relating to the release of warehouse Inventory as Administrative Agent may reasonably  request; provided that if the Borrower Representative is unable to have such Person execute a  Collateral Access Agreement, then such failure shall not constitute a Default or Event of Default  under this Agreement, but Administrative Agent may establish a Rent Reserve.  Section 6.16 Post-Closing Obligations.    (a) Within fifteen (15) days following the Closing Date (or such longer period  as agreed to by the Administrative Agent in its sole discretion), the Loan Parties shall  deliver (or cause to be delivered) to the Administrative Agent copies of all lender loss  payable and additional insured endorsements with respect to the insurance policies required  pursuant to Section 6.5.  (b) Within ten (10) Business Days following the Closing Date (or such longer  period as agreed to by the Administrative Agent in its sole discretion), the Borrower  Representative shall deliver (or cause to be delivered) to the Administrative Agent a  Borrowing Base Report which calculates the Borrowing Base as of a date specified by, and  





 






  CREDIT AGREEMENT – Page 113    acceptable to, the Administrative Agent, with customary supporting schedules and  documentation acceptable to the Administrative Agent.  For the avoidance of doubt, the Loan Parties’ failure to comply with any requirement of this  Section 6.16 on or before the dates specified in this Section 6.16 shall constitute an immediate  Event of Default.  ARTICLE 7.    NEGATIVE COVENANTS  Each Loan Party covenants and agrees that, as long as the Obligations or any part thereof  are outstanding or any Letter of Credit is outstanding or any Lender has any Commitment  hereunder:  Section 7.1 Debt.  Each Loan Party shall not, and shall not permit any of its Subsidiaries  to, directly or indirectly, incur, create, assume, or permit to exist any Debt, except:  (a) the Obligations under the Loan Documents and obligations existing or  arising under Bank Product Agreements (other than Hedge Agreements);  (b) existing Debt described on Schedule 7.1 and Permitted Refinancing of such  Debt;  (c) Purchase Money Debt and Capitalized Lease Obligations not to exceed  $1,000,000 in the aggregate at any time outstanding and any Permitted Refinancing of such  Debt;  (d) (i) Debt of any Loan Party owing to any other Loan Party, (ii) Debt of any  Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor,  and (iii) Debt of any Subsidiary that is not a Guarantor owing to any Loan Party that is  permitted under Section 7.5;  (e) Debt owed to any Person providing workers’ compensation, health,  disability or other employee benefits or property, casualty or liability insurance,  performance, bid, surety or appeal bonds, performance and completion guarantees and  similar obligations, pursuant to reimbursement or indemnification obligations to such  Person, in each case incurred in the ordinary course of business;  (f) endorsements of negotiable or similar instruments for collection or deposit  in the ordinary course of business;  (g) with respect to any Debt permitted to be incurred pursuant to this Section  7.1, guaranties of such Debt or guaranties by any Loan Party or any of its Subsidiaries of  such Debt;  (h) Debt incurred in the ordinary course of business owed to any Person  providing property, casualty, liability, or other insurance to the Loan Parties, including to  





 






  CREDIT AGREEMENT – Page 114    finance insurance premiums, so long as the amount of such Debt is not in excess of the  amount of the unpaid cost of, and shall be incurred only to defer the cost of, such;  (i) Hedge Obligations existing or arising under Hedge Agreements permitted  by Section 7.17;   (j) Subordinated Debt in the aggregate at any time outstanding and Permitted  Refinancing of such Debt; and  (k) Debt not to exceed $10,000,000 in the aggregate at any time outstanding  secured solely by Excluded Real Property; and  (l) other Debt not to exceed $1,000,000 in the aggregate at any time  outstanding.  Section 7.2 Limitation on Liens.  Each Loan Party shall not, and shall not permit any  of its Subsidiaries to, incur, create, assume, or permit to exist any Lien upon any of its Property,  assets, or revenues, whether now owned or hereafter acquired, except:  (a) existing Liens disclosed on Schedule 7.2;  (b) Liens in favor of the Secured Parties or Administrative Agent for the benefit  of Secured Parties;  (c) encumbrances consisting of minor easements, zoning restrictions, or other  restrictions on the use of real Property that do not (individually or in the aggregate)  materially affect the value of the assets encumbered thereby or materially impair the ability  of any Loan Party or its Subsidiaries to use such assets in their respective businesses, and  none of which is violated in any material respect by existing or proposed structures or land  use;  (d) Liens for taxes, assessments, or other governmental charges which are not  delinquent or which are being contested in good faith and for which adequate reserves in  accordance with GAAP have been established and for which such contest operates to  suspend the enforcement of any foreclosure or levy on any Property of each Loan Party or  any of its Subsidiary;  (e) Liens of landlords, vendors, mechanics, materialmen, warehousemen,  carriers, or other similar statutory Liens securing obligations incurred in the ordinary  course of business that are not yet due or which are being contested in good faith and for  which adequate reserves in accordance with GAAP have been established and for which  such contest operates to suspend the enforcement of any foreclosure or levy on any  Property of each Loan Party or any of its Subsidiaries;  (f) Liens resulting from good faith deposits to secure payments of workmen’s  compensation, unemployment insurance or other social security programs (other than  Liens imposed by ERISA) or to secure the performance of tenders, statutory obligations,  





 






  CREDIT AGREEMENT – Page 115    surety and appeal bonds, bids, contracts (other than for payment of Debt), or leases made  in the ordinary course of business;  (g) normal and customary rights of setoff upon deposits in favor of depository  institutions, and Liens of a collecting bank on payment items in the course of collection;  (h) purported Liens evidenced by the filing of precautionary UCC financing  statements relating solely to operating leases or consignments of personal property entered  into in the ordinary course of business;  (i) Liens granted in the ordinary course of business on the unearned portion of  insurance premiums securing the financing of insurance premiums to the extent the  financing is permitted under Section 7.1(h);  (j) Liens on specific Property to secure Purchase Money Debt used to acquire  such Property and Liens securing Capitalized Lease Obligations with respect to specific  leased Property, in each case to the extent permitted in Section 7.1(c);   (k) Liens on Excluded Real Property to secure Debt permitted under Section  7.1(k); and  (l) other Liens securing Debt not to exceed $1,000,000 in the aggregate at any  time outstanding.  Nothing contained in this Section 7.2 shall in and of itself cause the obligations of the Loan  Parties to the Secured Parties under or pursuant to the Loan Documents to be subordinated  to any Lien permitted by this Section 7.2 or cause any Liens in favor of the Secured Parties  to rank subordinate to any such permitted Liens.  Section 7.3 Mergers, Etc.  Each Loan Party shall not, and shall not permit any of its  Subsidiaries to, directly or indirectly, become a party to a division, merger or consolidation, or  purchase or otherwise acquire all or substantially all of the assets of any Person or any shares or  other evidence of beneficial ownership of any Person, or wind-up, dissolve, or liquidate, except  that (a) any Subsidiary of Holdings may merge or consolidate with any Borrower so long as such  Borrower is the surviving entity, (b) any Subsidiary of Holdings may merge or consolidate with  another Subsidiary so long as if such Subsidiary that is a Guarantor is involved in such merger or  consolidation, such Guarantor is the surviving entity, (c) solely in connection with a Permitted  Acquisition, any Person may merge or consolidate with or into any Loan Party provided such Loan  Party shall be the surviving entity and (d) any Loan Party may acquire all or substantially all of  the assets of any Person or any shares or other evidence of beneficial ownership of any Person  pursuant to a Permitted Acquisition.  Section 7.4 Restricted Payments.  Each Loan Party shall not, nor shall it permit any of  its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted  Payment, except:  





 






  CREDIT AGREEMENT – Page 116    (a) each Loan Party may make Restricted Payments with respect to its Equity  Interests payable solely in additional shares of its Equity Interests (other than Disqualified  Equity Interests);   (b) Subsidiaries may declare and pay dividends and other Restricted Payments  to Holdings and any Subsidiary of Holdings that is a Loan Party;   (c) Holdings may make repurchases of the Equity Interests in Holdings so long  as (i) no Default or Event of Default exists on the date of such repurchase or immediately  after giving effect to such repurchase, (ii) after giving effect to and at all times during the  thirty (30) consecutive day period immediately prior to the making of such repurchase,  Availability shall be greater than or equal to the greater of (A) $12,500,000 and (B) thirty- five percent (35%) of the Line Cap then in effect and (iii) the aggregate amount of  repurchases made in reliance on this clause (c) shall not exceed $20,000,000 in the  aggregate; and  (d) the Loan Parties and their Subsidiaries may make other Restricted Payments  so long as the Payment Conditions have been satisfied at the time such Restricted Payment  is made.  Section 7.5 Loans and Investments.  Each Loan Party shall not, and shall not permit  any of its Subsidiaries to, directly or indirectly, make, hold or maintain, any advance, loan,  extension of credit, or capital contribution to or investment in, or purchase any stock, bonds, notes,  debentures, or other securities of, any Person, except:  (a) existing investments described on Schedule 7.5;  (b) readily marketable direct obligations of the United States of America or any  agency thereof with maturities of one (1) year or less from the date of acquisition;  (c) fully insured certificates of deposit with maturities of one (1) year or less  from the date of acquisition issued by either (i) any commercial bank operating in the  United States of America having capital and surplus in excess of $50,000,000 or (ii) any  Lender;  (d) commercial paper of a domestic issuer if at the time of purchase such paper  is rated in one (1) of the two (2) highest rating categories of Standard and Poor’s  Corporation or Moody’s;   (e) contributions in the ordinary course of business consistent with past  practices in the Excluded Subsidiary in an aggregate amount not to exceed $750,000 in any  fiscal year and solely for purposes of funding the Loan Parties’ nonqualified deferred  compensation plan for the benefit of the employees of the Loan Parties;  (f) investments by a Borrower or a Guarantor in another Borrower or  Guarantor;  (g) investments consisting of Hedge Agreements permitted under Section 7.17;  





 






  CREDIT AGREEMENT – Page 117    (h) advances or extensions of credit in the form of accounts receivable incurred  and trade credit extended in the ordinary course of business;   (i) investments in securities of account debtors received pursuant to any  settlement, restructuring, plan of reorganization or similar arrangement in connection with  a foreclosure, bankruptcy workout or otherwise with respect to such account debtors, or  upon the foreclosure or enforcement of any Lien on such securities arising in the ordinary  course of business in favor of a Loan Party or its Subsidiaries;  (j) loans or advances made by a Loan Party to its employees for travel and  entertainment expenses, relocation costs and similar purposes up to a maximum of  $100,000 in the aggregate at any one time outstanding or, on a non-cash basis, for the  purchase of Equity Interests in any Loan Party or any direct or indirect parent thereof;   (k) other investments so long as (i) no Event of Default shall have occurred and  be continuing at the time of making such investment and immediately after giving effect  thereto and (ii) the aggregate amount of all such investments under this clause (k) shall not  exceed $5,000,000 at any time; and  (l) Investments consisting of Permitted Acquisitions.  Section 7.6 Limitation on Issuance of Equity.  Each Loan Party (except with respect  to clause (d) below, other than Holdings) shall not, and shall not permit any of its Subsidiaries to,  directly or indirectly, issue, sell, assign, or otherwise Dispose of (a) any of its stock or other Equity  Interests, (b) any securities exchangeable for or convertible into or carrying any rights to acquire  any of its stock or other Equity Interests, (c) any option, warrant, or other right to acquire any of  its stock or other Equity Interests or (d) any Disqualified Equity Interests, in each case, other than  to any Loan Party or another Subsidiary.   Section 7.7 Transactions With Affiliates.  Except with respect to the making of  Restricted Payments permitted by Section 7.4, Holdings shall not, and shall not permit any of its  Subsidiaries to, directly or indirectly, enter into any transaction, including, without limitation, the  purchase, sale, or exchange of Property, the rendering of any service or the payment of any  management, advisory or similar fees, with any Affiliate of Holdings or such Subsidiary, except  in the ordinary course of and pursuant to the reasonable requirements of Holdings’ or such  Subsidiary’s business, (a) pursuant to a transaction which is otherwise expressly permitted under  this Agreement, and upon fair and reasonable terms no less favorable to Holdings or such  Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person not an  Affiliate of Holdings or such Subsidiary or (b) pursuant to the Subordinated Debt Documents.  Section 7.8 Disposition of Assets.  Each Loan Party shall not, and shall not permit any  of its Subsidiaries to, directly or indirectly make any Disposition, except (a) Dispositions of  Inventory in the ordinary course of business, (b) Dispositions, for fair value, of worn-out, surplus  and obsolete Equipment not necessary or useful to the conduct of business, (c) Dispositions of  Equity Interests permitted by Section 7.6, (d) Dispositions of Property to any Loan Party or any  Subsidiary, provided that any such Disposition involving a Subsidiary that is not a Loan Party shall  be made in compliance with Sections 7.5 or 7.6, (e) the unwinding of any Hedge Agreement or  





 






  CREDIT AGREEMENT – Page 118    (f) other Dispositions (other than with respect to any Accounts, Inventory or other Property  included in the Borrowing Base at any time) not to exceed $5,000,000 in the aggregate in any  fiscal year.  Section 7.9 Sale and Leaseback.  Each Loan Party shall not, and shall not permit any  of its Subsidiaries to, directly or indirectly, enter into any arrangement with any Person pursuant  to which it leases from such Person real or personal Property that has been or is to be sold or  transferred, directly or indirectly, by it to such Person.  Section 7.10 Prepayment of Debt.  Each Loan Party shall not, and shall not permit any  of its Subsidiaries to, directly or indirectly, make any optional or voluntary payment, prepayment,  repurchase or redemption of any Debt, except the Obligations under the Loan Documents and in  connection with any Permitted Refinancing of Debt to the extent such Permitted Refinancing is  permitted pursuant to Section 7.1.  Section 7.11 Nature of Business.  Each Loan Party shall not, and shall not permit any of  its Subsidiaries to, engage in any business other than the businesses in which they are engaged as  of the date hereof or Permitted Other Business Lines, or businesses directly related thereto.  Each  Loan Party shall not, and shall not permit any of its Subsidiaries to, make any material change in  its credit collection policies if such change would materially impair the collectability of any  Account, nor will it rescind, cancel or modify any Account except in the ordinary course of  business.  Section 7.12 Environmental Protection.  Each Loan Party shall not, and shall not  permit any of its Subsidiaries to, directly or indirectly (a) use (or permit any tenant to use) any of  their respective Properties or assets for the handling, processing, storage, transportation, or  disposal of any Hazardous Material in violation of, or in a manner or to a location that could give  rise to liability under, any applicable Environmental Laws, (b) generate any Hazardous Material  in violation of any applicable Environmental Laws, (c) conduct any activity that is likely to cause  a Release or threatened Release of any Hazardous Material in violation of any applicable  Environmental Laws, or (d) otherwise conduct any activity or use any of their respective Properties  or assets in any manner that is likely to violate any Environmental Law or create any  Environmental Liabilities for which any Loan Party or any of its Subsidiaries would be  responsible.  Section 7.13 Accounting.  Each Loan Party shall not, and shall not permit any of its  Subsidiaries to, change its fiscal year or make any change (a) in accounting treatment or reporting  practices, except as required by GAAP and disclosed to Administrative Agent and Lenders, or  (b) in tax reporting treatment, except as required by Law and disclosed to Administrative Agent  and Lenders.  Section 7.14 Burdensome Agreements.  Each Loan Party shall not, and shall not permit  any of its Subsidiaries or any other Loan Party to, enter into or permit to exist any arrangement or  agreement, other than pursuant to this Agreement or any other Loan Document, which (a) directly  or indirectly prohibits Holdings, any of its Subsidiaries or any other Loan Party from creating or  incurring a Lien on any of its Property, revenues, or assets, whether now owned or hereafter  acquired, (b) directly or indirectly prohibits any of its Subsidiaries or any other Loan Party to make  





 






  CREDIT AGREEMENT – Page 119    any payments, directly or indirectly, to any other Loan Party by way of dividends, distributions,  advances, repayments of loans, repayments of expenses, accruals, or otherwise or (c) in any way  would be contravened by such Person’s performance of its obligations hereunder or under the other  Loan Documents; provided that clause (a) of the foregoing shall not apply to restrictions or  conditions imposed by any agreement relating to secured Debt permitted by this Agreement if such  restrictions or conditions apply only to the property or assets securing such Debt.  Section 7.15 Subsidiaries.  Each Loan Party shall not, directly or indirectly, form or  acquire any Domestic Subsidiary unless such Loan Party complies with the requirements of  Section 6.13.  The Loan Parties shall not form or acquire any Subsidiaries outside of the United  States, Canada or Mexico.  The Loan Parties shall promptly identify to Administrative Agent any  Collateral previously included in the Borrowing Base that is moved to a subsidiary location outside  of the United States and shall remove such Collateral from future Borrowing Base Reports.  The  Excluded Subsidiary shall not form or acquire any Subsidiaries.  Section 7.16 Amendments of Certain Documents.  Each Loan Party shall not, and shall  not permit any of its Subsidiaries to, amend, restate, supplement or otherwise modify any of their  respective Constituent Documents or the Subordinated Debt Documents, in each case, in a manner  adverse to the interest of the Lenders.  Section 7.17 Hedge Agreements.  Each Loan Party shall not, and shall not permit any  of its Subsidiaries to, enter into any Hedge Agreement, except those that are entered into for non- speculative purposes and that are (a) Hedge Agreements entered into to hedge or mitigate risks to  which such Loan Party or any Subsidiary thereof has actual exposure which have terms and  conditions reasonably acceptable to Administrative Agent, and (b) other Hedge Agreements  entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating  rates, from one floating rate to another floating rate or otherwise) with respect to any interest- bearing liability or investment, Debt of such Loan Party or any of its Subsidiaries limited to the  principal amount of such interest-bearing liability or investment or Debt which have terms and  conditions reasonably acceptable to Administrative Agent.  Section 7.18 Anti-Corruption Laws; Sanctions; Anti-Terrorism Law.  Each Loan  Party will not, directly or indirectly, use the proceeds of the Loans or Letters of Credit, or lend,  contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or  other Person, (a) 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 the FCPA or  any other applicable Anti-Corruption Law, or (b) (i) to fund any activities or business of or with  any Person, or in any country or territory, that, at the time of such funding, is, or whose government  is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions  by any Person (including any Person participating in the Loans or Letters of Credit, whether as  Administrative Agent, Arranger, Lender, underwriter, advisor, investor, or otherwise).   





 






  CREDIT AGREEMENT – Page 120    ARTICLE 8.    FINANCIAL COVENANTS  Each Loan Party covenants and agrees that, as long as the Obligations or any part thereof  are outstanding or any Letter of Credit is outstanding or any Lender has any Commitment  hereunder:  Section 8.1 Leverage Ratio.  Holdings shall not permit, as of the last day of any fiscal  quarter during a Trigger Period, commencing with the fiscal quarter ending immediately before  the date on which such Trigger Period commences, the Leverage Ratio to be greater than 3.00 to  1.00.  Section 8.2 Fixed Charge Coverage Ratio.  Holdings shall not permit, as of the last  day of any fiscal quarter during a Trigger Period, commencing with the fiscal quarter ending  immediately before the date on which such Trigger Period commences, the Fixed Charge Coverage  Ratio to be less than 1.00 to 1.00.  ARTICLE 9.    DEFAULT  Section 9.1 Events of Default.  Each of the following shall be deemed an “Event of  Default”:  (a) Any Loan Parties shall fail to pay the Obligations under the Loan  Documents or any part thereof shall not be paid when due or declared due and, other than  with respect to payments of principal, such failure shall continue unremedied for three (3)  days after such payment became due;  (b) Any Loan Party shall breach any provision of Sections 6.1, 6.2 (with respect  to a Loan Party’s existence), 6.5, 6.12, 6.13, 6.14 or 6.16 or Article 7 or Article 8 of this  Agreement;  (c) Any representation or warranty made or deemed made by any Loan Party  (or any of their respective officers) in any Loan Document or in any certificate, report,  notice, or financial statement furnished at any time in connection with this Agreement or  any other Loan Document shall be false, misleading, or erroneous in any material respect  (without duplication of any materiality qualifier contained therein) when made or deemed  to have been made;  (d) Holdings, any of its Subsidiaries, or any other Loan Party or any Subsidiary  of any Loan Party shall fail to perform, observe, or comply with any covenant, agreement,  or term contained in this Agreement or any other Loan Document (other than as covered  by Sections 9.1(a) and (b)), and such failure continues for more than thirty (30) days  following the earlier to occur of (i) written notice of such failure from the Administrative  Agent or the Required Lenders to the Loan Parties and (ii) knowledge of such failure by a  Responsible Officer of the applicable Loan Party;  





 






  CREDIT AGREEMENT – Page 121    (e) Holdings, any of its Subsidiaries, or any other Loan Party or any Subsidiary  of any Loan Party shall commence a voluntary proceeding seeking liquidation,  reorganization, or other relief with respect to itself or its debts under any bankruptcy,  insolvency, or other similar Law now or hereafter in effect or seeking the appointment of  a trustee, receiver, liquidator, custodian, or other similar official of it or a substantial part  of its Property or shall consent to any such relief or to the appointment of or taking  possession by any such official in an involuntary case or other proceeding commenced  against it or shall make a general assignment for the benefit of creditors or shall generally  fail to pay its debts as they become due or shall take any corporate action to authorize any  of the foregoing;  (f) An involuntary proceeding shall be commenced against Holdings, any of its  Subsidiaries, or any other Loan Party or any Subsidiary of any Loan Party seeking  liquidation, reorganization, or other relief with respect to it or its debts under any  bankruptcy, insolvency, or other similar Law now or hereafter in effect or seeking the  appointment of a trustee, receiver, liquidator, custodian, or other similar official for it or a  substantial part of its Property, and such involuntary proceeding shall remain undismissed  and unstayed for a period of sixty (60) consecutive days;  (g) Holdings, any of its Subsidiaries, or any other Loan Party or any Subsidiary  of any Loan Party shall fail to pay when due any principal of or interest on any Debt (other  than the Obligations under the Loan Documents) with an outstanding principal amount of  $1,000,000 or more, or the maturity of any such Debt shall have been accelerated, or any  such Debt shall have been required to be prepaid, repurchased, defeased or redeemed prior  to the stated maturity thereof or any cash collateral in respect thereof to be demanded, or  any event shall have occurred that permits (or, with the giving of notice or lapse of time or  both, after any applicable cure periods, would permit) any holder or holders of such Debt,  or the counterparty under any Hedge Agreement constituting such Debt, or any Person  acting on behalf of such holder or holders or such counterparty to accelerate the maturity  thereof or require any such prepayment, repurchase, defeasance or redemption or any cash  collateral in respect thereof to be demanded;  (h) This Agreement, the Guaranty or any other Loan Document shall cease to  be in full force and effect or shall be declared null and void or the validity or enforceability  thereof shall be contested or challenged by Holdings, any of its Subsidiaries, any other  Loan Party or any Subsidiary of any Loan Party or any of their respective equity holders,  or Holdings or any other Loan Party shall deny that it has any further liability or obligation  under any of the Loan Documents, or any Lien created by the Loan Documents shall for  any reason cease to be a valid, first priority perfected Lien (subject to Permitted Liens that  have priority over the Liens in favor of the Administrative Agent under applicable law)  upon any of the Collateral purported to be covered thereby;  (i) Any of the following events shall occur or exist with respect to any Loan  Party or any ERISA Affiliate: (i) any ERISA Event occurs with respect to a Plan or  Multiemployer Plan, or (ii) any Prohibited Transaction involving any Plan or  Multiemployer Plan; and in each case above, such event or condition, together with all  other events or conditions, if any, have subjected or could in the reasonable opinion of  





 






  CREDIT AGREEMENT – Page 122    Administrative Agent subject any Loan Party or any ERISA Affiliate to any tax, penalty,  or other liability to a Plan, a Multiemployer Plan, the PBGC, the IRS, the U. S. Department  of Labor, or otherwise (or any combination thereof) which in the aggregate exceed or could  reasonably be expected to exceed $1,000,000;  (j) A Change of Control shall occur;  (k) Holdings, any of its Subsidiaries, or any other Loan Party or any Subsidiary  of any Loan Party, or any of their Properties, revenues, or assets, shall become subject to  an order of forfeiture, seizure, or divestiture (whether under RICO or otherwise) and the  same shall not have been discharged within thirty (30) days from the date of entry thereof;  (l) Holdings, any of its Subsidiaries, or any other Loan Party or any Subsidiary  of any Loan Party shall fail to discharge within a period of thirty (30) consecutive days  after the commencement thereof any attachment, sequestration, or similar proceeding or  proceedings involving an aggregate amount in excess of $250,000 against any of its assets  or Properties;  (m) A final judgment or judgments for the payment of money in excess of  $1,000,000 not covered by insurance in the aggregate and to which the applicable insurer  has denied coverage shall be rendered by a court or courts against Holdings, any of its  Subsidiaries, or any other Loan Party or any Subsidiary of any Loan Party and the same  shall not be discharged (or provision shall not be made for such discharge), or a stay of  execution thereof shall not be procured, within thirty (30) consecutive days from the date  of entry thereof and Holdings, such Subsidiary, or such Loan Party or such Subsidiary of  such Loan Party shall not, within such period of thirty (30) consecutive days, or such longer  period during which execution of the same shall have been stayed, appeal therefrom and  cause the execution thereof to be stayed during such appeal; or  (n) any event of default shall occur under any of the Subordinated Debt  Documents or any Loan Party shall contest in any manner the validity, binding nature or  enforceability of any Subordination Agreement.  Section 9.2 Remedies Upon Default.  If any Event of Default shall occur and be  continuing, then Administrative Agent may, with the consent of Required Lenders, or shall, at the  direction of Required Lenders, without notice do any or all of the following: (a) terminate the  Commitments of Lenders (except for funding obligations of outstanding Letters of Credit),  (b) terminate the obligations of L/C Issuer to make L/C Credit Extensions, (c) terminate the  commitment of Swing Line Lender to make Swing Line Loans, (d) require that Borrowers Cash  Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with  respect thereto), or (e) declare the Obligations (other than the Obligations arising out of Bank  Product Agreements) or any part thereof to be immediately due and payable, and the same shall  thereupon become immediately due and payable, without notice, demand, presentment, notice of  dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest,  or other formalities of any kind, all of which are hereby expressly waived by each Borrower and  each other Loan Party; provided, however, that upon the occurrence of an Event of Default under  Section 9.1(e) or Section 9.1(f), the Commitments of Lenders shall automatically terminate  





 






  CREDIT AGREEMENT – Page 123    (except for funding obligations of outstanding Letters of Credit), the obligations of L/C Issuer to  make L/C Credit Extensions shall automatically terminate, the commitment of Swing Line Lender  to make Swing Line Loans shall automatically terminate, the obligation of each Borrower to Cash  Collateralize the L/C Obligations as aforesaid shall automatically become effective, and the  Obligations  (other than the Obligations arising out of Bank Product Agreements) shall become  immediately due and payable, in each case without notice, demand, presentment, notice of  dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest,  or other formalities of any kind, all of which are hereby expressly waived by each Borrower and  each other Loan Party.  In addition to the foregoing, if any Event of Default shall occur and be  continuing, Administrative Agent may, with the consent of Required Lenders, or shall, at the  direction of Required Lenders, exercise all rights and remedies available to it, Lenders and L/C  Issuer in law or in equity, under the Loan Documents, or otherwise.  Section 9.3 Application of Funds.  After the exercise of remedies provided for in  Section 9.2 (or if an Event of Default has occurred and is continuing and the written notice thereof,  if any, to any Borrower from Administrative Agent expressly provides that this Section 9.3 shall  thereafter apply to any amounts received on account of the Obligations or after the Loans have  automatically become immediately due and payable), any amounts received on account of the  Obligations shall be applied by Administrative Agent in the following order:  First, to payment of that portion of the Obligations constituting fees, indemnities, expenses  and other amounts (including fees, charges and disbursements of counsel to Administrative Agent)  payable to Administrative Agent in its capacity as such;  Second, to payment of that portion of the Obligations constituting fees, indemnities and  other amounts (other than principal, interest, and Letter of Credit Fees) payable to Lenders and  L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and  L/C Issuer) arising under the Loan Documents, ratably among them in proportion to the respective  amounts described in this clause Second payable to them;  Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter  of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the  Loan Documents, ratably among Lenders and L/C Issuer in proportion to the respective amounts  described in this clause Third payable to them;  Fourth, to payment of that portion of the Obligations constituting unpaid principal of the  Loans and L/C Borrowings and constituting unpaid Bank Product Obligations, ratably among  Lenders and Bank Product Providers in proportion to the respective amounts described in this  clause Fourth held by them;  Fifth, to Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that  portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the  extent not otherwise Cash Collateralized by any Borrower pursuant to Sections 2.2 and 2.7;  Sixth, to payment of that remaining portion of the Obligations, ratably among the Lenders  and Bank Product Providers in proportion to the respective amounts described in this clause Sixth  held by them; and  





 






  CREDIT AGREEMENT – Page 124    Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to  Borrowers or as otherwise required by Law.  Notwithstanding anything to the contrary herein or in any other Loan Document, no  amount received from any Loan Party shall be applied to any Excluded Swap Obligation of such  Loan Party, but appropriate adjustments shall be made with respect to payments from other Loan  Parties to preserve allocation to Obligations otherwise set forth in this Section.  Further notwithstanding, Bank Product Obligations shall be excluded from the application  described above if Administrative Agent has not received written notice thereof, together with  supporting documentation as Administrative Agent may request from the applicable Bank Product  Provider, provided that no such notice shall be required for any Bank Product Agreement for which  Administrative Agent or any Affiliate of Administrative Agent is the applicable Bank Product  Provider.  Each Bank Product Provider that is not a party to this Agreement that has given notice  contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged  and accepted the appointment of Administrative Agent pursuant to the terms of Article 10 hereof  for itself and its Affiliates as if a “Lender” party hereto.  Section 9.4 Performance by Administrative Agent.  If any Loan Party shall fail to  perform any covenant or agreement contained in any of the Loan Documents, then Administrative  Agent may perform or attempt to perform such covenant or agreement on behalf of such Loan  Party.  In such event, Borrowers shall, at the request of Administrative Agent, promptly pay to  Administrative Agent any amount reasonably expended by Administrative Agent in connection  with such performance or attempted performance, together with interest thereon at the Default  Interest Rate from and including the date of such expenditure to but excluding the date such  expenditure is paid in full.  Notwithstanding the foregoing, it is expressly agreed that  Administrative Agent shall not have any liability or responsibility for the performance of any  covenant, agreement, or other obligation of any Borrower or any other Loan Party under this  Agreement or any other Loan Document.  ARTICLE 10.    AGENCY  Section 10.1 Appointment and Authority.  (a) Each of the Lenders, L/C Issuer, and Swing Line Lender hereby irrevocably  appoints Texas Capital Bank to act on its behalf as Administrative Agent hereunder and  under the other Loan Documents and authorizes Administrative Agent to take such actions  on its behalf and to exercise such powers as are delegated to Administrative Agent by the  terms hereof or thereof, together with such actions and powers as are reasonably incidental  thereto.  The provisions of this Article 10 are solely for the benefit of Administrative Agent,  Lenders, L/C Issuer, and Swing Line Lender, and no Loan Party shall have rights as a third- party beneficiary of any of such provisions.  It is understood and agreed that the use of the  term “agent” herein or in any other Loan Documents (or any other similar term) with  reference to Administrative Agent is not intended to connote any fiduciary or other implied  (or express) obligations arising under agency doctrine of any applicable Law. Instead such  





 






  CREDIT AGREEMENT – Page 125    term is used as a matter of market custom, and is intended to create or reflect only an  administrative relationship between contracting parties.  (b) Administrative Agent shall also act as the “collateral agent” under the Loan  Documents, and each of the Lenders (including for itself and its Affiliates in their capacities  as potential Bank Product Providers) and L/C Issuer hereby irrevocably appoints and  authorizes Administrative Agent to act as the agent of such Lender and L/C Issuer for  purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by  any of the Loan Parties to secure any of the Obligations, together with such powers and  discretion as are reasonably incidental thereto.  In this connection, Administrative Agent,  as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by  Administrative Agent pursuant to Section 10.5 for purposes of holding or enforcing any  Lien on the Collateral (or any portion thereof) granted under the Security Documents, or  for exercising any rights and remedies thereunder at the direction of Administrative Agent,  shall be entitled to the benefits of all provisions of this Article 10 and Article 11 (including  Section 11.1(b), as though such co-agents, sub-agents and attorneys-in-fact were the  “collateral agent” under the Loan Documents) as if set forth in full herein with respect  thereto.  Any collateral agent fee or other agency fee to be paid by the Loan Parties in  connection with this Agreement may from time to time be separately agreed to solely by  the Administrative Agent and the Borrower Representative in writing.  Section 10.2 Rights as a Lender.  The Person serving as Administrative Agent  hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender  and may exercise the same as though it were not Administrative Agent, and the term “Lender” or  “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,  include the Person serving as Administrative Agent hereunder in its individual capacity.  Such  Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the  financial advisor or in any other advisory capacity for, and generally engage in any kind of business  with, any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not  Administrative Agent hereunder and without any duty to account therefor to Lenders.  Section 10.3 Exculpatory Provisions.  (a) Administrative Agent shall not have any duties or obligations except those  expressly set forth herein and in the other Loan Documents, and its duties hereunder shall  be administrative in nature.  Without limiting the generality of the foregoing,  Administrative Agent:  (i) shall not be subject to any fiduciary or other implied duties,  regardless of whether a Default has occurred and is continuing;  (ii) shall not have any duty to take any discretionary action or exercise  any discretionary powers, except discretionary rights and powers expressly  contemplated hereby or by the other Loan Documents that Administrative Agent is  required to exercise as directed in writing by Required Lenders (or such other  number or percentage of Lenders as shall be expressly provided for herein or in the  other Loan Documents); provided that Administrative Agent shall not be required  





 






  CREDIT AGREEMENT – Page 126    to take any action that, in its opinion or upon the advice of its counsel, may expose  Administrative Agent to liability or that is contrary to any Loan Document or  applicable Law, including for the avoidance of doubt any action that may be in  violation of the automatic stay under any Debtor Relief Law or that may effect a  forfeiture, modification or termination of Property of a Defaulting Lender in  violation of any Debtor Relief Law;  (iii) shall not, except as expressly set forth herein and in the other Loan  Documents, have any duty to disclose, and shall not be liable for the failure to  disclose, any information relating to any Loan Party or any of their respective  Affiliates that is communicated to or obtained by the Person serving as  Administrative Agent or any of its Affiliates in any capacity;and  (iv) shall be fully justified in failing or refusing to take any action  hereunder or under any other Loan Document unless it shall first be indemnified to  its satisfaction by Lenders pro rata against any and all liability, cost and expense  that it may incur by reason of taking or continuing to take any such action.; and  (v) does not warrant or accept responsibility for, and shall not have any  liability with respect to, the administration, submission or any other matter related  to the rates in the definition of “Term SOFR”, “Adjusted Term SOFR”, “BSBY  Rate” or with respect to any Benchmark Replacement or other rate (including, for  the avoidance of doubt, the selection  of such rate and any related spread or other  adjustment) that is an alternative or replacement for or successor to any such rate.  (b) Administrative Agent shall not be liable for any action taken or not taken  by it (i) with the consent or at the request of Required Lenders (or such other number or  percentage of Lenders as shall be necessary, or as Administrative Agent shall believe in  good faith shall be necessary, under the circumstances as provided in Sections 9.2 and  10.9), or (ii) in the absence of its own gross negligence or willful misconduct as determined  by a court of competent jurisdiction by final and nonappealable judgment.  SUCH  LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER  THE LIABILITY ARISES FROM THE SOLE, CONCURRENT,  CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF ADMINISTRATIVE  AGENT.  Administrative Agent shall be deemed not to have knowledge of any Default  unless and until notice describing such Default is given to Administrative Agent in writing  by any Loan Party, a Lender, L/C Issuer, or Swing Line Lender.  (c) Neither Administrative Agent nor any Related Party thereof shall be  responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or  representation made in or in connection with this Agreement or any other Loan Document,  (ii) the contents of any certificate, report or other document delivered hereunder or  thereunder or in connection herewith or therewith, (iii) the performance or observance of  any of the covenants, agreements or other terms or conditions set forth herein or therein or  the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness  of this Agreement, any other Loan Document or any other agreement, instrument or  document, or (v) the satisfaction of any condition set forth in Article 4 or elsewhere herein,  





 






  CREDIT AGREEMENT – Page 127    other than to confirm receipt of items expressly required to be delivered to Administrative  Agent.  Section 10.4 Reliance by Administrative Agent.  Administrative Agent shall be entitled  to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,  consent, statement, instrument, document or other writing (including any electronic message,  internet or intranet website posting or other distribution) believed by it to be genuine and to have  been signed, sent or otherwise authenticated by the proper Person.  Administrative Agent also may  rely upon any statement made to it orally or by telephone and believed by it to have been made by  the proper Person, and shall not incur any liability for relying thereon.  In determining compliance  with any condition hereunder to the making of a Credit Extension, that by its terms must be fulfilled  to the satisfaction of a Lender, L/C Issuer, or Swing Line Lender, Administrative Agent may  presume that such condition is satisfactory to such Lender, L/C Issuer, or Swing Line Lender  unless Administrative Agent shall have received notice to the contrary from such Lender prior to  the making of such Credit Extension.  Administrative Agent may consult with legal counsel (who  may be counsel for any Loan Party), independent accountants and other experts selected by it, and  shall not be liable for any action taken or not taken by it in accordance with the advice of any such  counsel, accountants or experts.  Section 10.5 Delegation of Duties.  Administrative Agent may perform any and all of its  duties and exercise its rights and powers hereunder or under any other Loan Document by or  through any one or more sub agents appointed by Administrative Agent.  Administrative Agent  and any such sub agent may perform any and all of its duties and exercise its rights and powers by  or through their respective Related Parties.  The exculpatory provisions of this Article 10 shall  apply to any such sub agent and to the Related Parties of Administrative Agent and any such sub  agent, and shall apply to their respective activities in connection with the syndication of the  Revolving Credit Facility as well as activities as Administrative Agent.  Administrative Agent  shall not be responsible for the negligence or misconduct of any sub-agents except to the extent  that a court of competent jurisdiction determines in a final and non-appealable judgment that  Administrative Agent acted with gross negligence or willful misconduct in the selection of such  sub agents.  Section 10.6 Resignation or Removal of Administrative Agent.  (a) Administrative Agent may at any time give notice of its resignation to  Lenders, L/C Issuer, Swing Line Lender and Borrowers.  Upon receipt of any such notice  of resignation, Required Lenders shall have the right, in consultation with Borrowers (so  long as no Event of Default has occurred and is continuing), to appoint a successor, which  shall be a bank with an office in Texas, or an Affiliate of any such bank with an office in  Texas.  If no such successor shall have been so appointed by Required Lenders and shall  have accepted such appointment within thirty (30) days after the retiring Administrative  Agent gives notice of its resignation (or such earlier day as shall be agreed by Required  Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may  (but shall not be obligated to), on behalf of Lenders, L/C Issuer, and Swing Line Lender,  appoint a successor Administrative Agent meeting the qualifications set forth above;  provided that in no event shall any successor Administrative Agent be a Defaulting Lender.   Whether or not a successor has been appointed, such resignation shall become effective in  





 






  CREDIT AGREEMENT – Page 128    accordance with such notice on the Resignation Effective Date.  After the Resignation  Effective Date, the provisions of this Article 10 relating to or indemnifying or releasing  Administrative Agent shall inure to its benefit as to any actions taken or omitted to be taken  by it while it was Administrative Agent under this Agreement and the other Loan  Documents.  (b) If the Person serving as Administrative Agent is a Defaulting Lender  pursuant to clause (d) of the definition thereof, Required Lenders may, to the extent  permitted by applicable Law, by notice in writing to the Borrower Representative and such  Person remove such Person as Administrative Agent and, in consultation with the Borrower  Representative, appoint a successor.  If no such successor shall have been so appointed by  Required Lenders and shall have accepted such appointment within thirty (30) days (or  such earlier day as shall be agreed by 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) the retiring or removed Administrative Agent shall be discharged from  its duties and obligations hereunder and under the other Loan Documents (except that in  the case of any Collateral held by Administrative Agent on behalf of Secured Parties under  any of the Loan Documents, the retiring or removed Administrative Agent shall continue  to hold such Collateral until such time as a successor Administrative Agent is appointed).   Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,  such successor shall succeed to and become vested with all of the rights, powers, privileges  and duties of the retiring or removed Administrative Agent (other than any rights to  indemnity payments owed to the retiring or removed Administrative Agent), and the  retiring or removed Administrative Agent shall be discharged from all of its duties and  obligations hereunder or under the other Loan Documents.  The fees payable by Borrowers  to a successor Administrative Agent shall be the same as those payable to its predecessor  unless otherwise agreed between Borrowers and such successor.  After the retiring or  removed Administrative Agent’s resignation or removal hereunder and under the other  Loan Documents, the provisions of this Article 10, Section 11.1, and Section 11.2 shall  continue in effect for the benefit of such retiring or removed Administrative Agent, its sub  agents and their respective Related Parties in respect of any actions taken or omitted to be  taken by any of them while the retiring or removed Administrative Agent was acting as  Administrative Agent.  (d) Any resignation by Texas Capital Bank as Administrative Agent pursuant  to this Section 10.6 shall also constitute its resignation as L/C Issuer and Swing Line  Lender unless the notice thereof otherwise provides.  If Texas Capital Bank resigns as an  L/C Issuer, it shall retain all the rights, powers, privileges and duties of L/C Issuer  hereunder with respect to all Letters of Credit outstanding as of the effective date of its  resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right  to require Lenders to make Revolving Credit Loans or fund risk participations in  Unreimbursed Amounts pursuant to Section 2.2(c).  If Texas Capital Bank resigns as  Swing Line Lender, it shall retain all the rights of Swing Line Lender provided for  hereunder with respect to Swing Line Loans made by it and outstanding as of the effective  





 






  CREDIT AGREEMENT – Page 129    date of such resignation, including the right to require Lenders to make Revolving Credit  Loans or fund risk participations in outstanding Swing Line Loans pursuant to  Section 2.3(c).  Upon the appointment by Borrowers of a successor L/C Issuer or Swing  Line Lender hereunder (which successor shall in all cases be a Lender other than a  Defaulting Lender), (i) such successor shall succeed to and become vested with all of the  rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as  applicable, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all  of their respective duties and obligations hereunder or under the other Loan Documents,  and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters  of Credit, if any, outstanding at the time of such succession or make other arrangements  satisfactory to Texas Capital Bank to effectively assume the obligations of Texas Capital  Bank with respect to such Letters of Credit.  Section 10.7 Non-Reliance on Administrative Agent and Other Lenders.  Each  Lender, L/C Issuer, and Swing Line Lender expressly acknowledges that neither Administrative  Agent nor any other Lender nor any Related Party thereto has made any representation or warranty  to such Person and that no act by Administrative Agent or any other Lender hereafter taken,  including any review of the affairs of any Loan Party, shall be deemed to constitute any  representation or warranty by Administrative Agent or any Lender to any other Lender.  Each  Lender, Swing Line Lender and L/C Issuer acknowledges that it has, independently and without  reliance upon Administrative Agent or any other Lender or any of their Related Parties and based  on such documents and information as it has deemed appropriate, made its own credit analysis and  decision to enter into this Agreement.  Each Lender, L/C Issuer, and Swing Line Lender also  acknowledges that it will, independently and without reliance upon Administrative Agent or any  other Lender or any of their Related Parties and based on such documents and information as it  shall from time to time deem appropriate, continue to make its own decisions in taking or not  taking action under or based upon this Agreement, any other Loan Document or any related  agreement or any document furnished hereunder or thereunder.  Except for notices, reports and  other documents expressly required to be furnished to the Lenders or Swing Line Lender by  Administrative Agent hereunder, Administrative Agent shall not have any duty or responsibility  to provide any Lender or Swing Line Lender with any credit or other information concerning the  business, operations, Property, condition (financial or otherwise), or creditworthiness of any Loan  Party or the value of the Collateral or other Properties of any Loan Party or any other Person which  may come into the possession of Administrative Agent or any of its officers, directors, employees,  agents, attorneys-in-fact or Affiliates.  Section 10.8 Administrative Agent May File Proofs of Claim.  In case of the pendency  of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any  Loan Party, Administrative Agent (irrespective of whether the principal of any Loan or L/C  Obligation shall then be due and payable as herein expressed or by declaration or otherwise and  irrespective of whether Administrative Agent shall have made any demand on any Loan Party)  shall be entitled and empowered (but not obligated) by intervention in such proceeding or  otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations under  the Loan Documents that are owing and unpaid and to file such other documents as may  





 






  CREDIT AGREEMENT – Page 130    be necessary or advisable in order to have the claims of Lenders, L/C Issuer, Swing Line  Lender, and Administrative Agent (including any claim for the reasonable compensation,  expenses, disbursements and advances of Lenders, L/C Issuer, Swing Line Lender, and  Administrative Agent and their respective agents and counsel and all other amounts due  Lenders, L/C Issuer, Swing Line Lender, and Administrative Agent under Section 11.1 or  Section 11.2) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other Property payable or deliverable  on any such claims and to distribute the same; and any custodian, receiver, assignee,  trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is  hereby authorized by each Lender, L/C Issuer and Swing Line Lender to make such  payments to Administrative Agent and, in the event that Administrative Agent shall  consent to the making of such payments directly to Lenders, L/C Issuer, and Swing Line  Lender, as applicable, to pay to Administrative Agent any amount due for the reasonable  compensation, expenses, disbursements and advances of Administrative Agent and its  agents and counsel, and any other amounts due Administrative Agent under Section 11.1  or Section 11.2.  Section 10.9 Collateral and Guaranty Matters.  (a) The Secured Parties irrevocably authorize Administrative Agent, at its  option and in its discretion:  (i) to release any Lien on any Property granted to or held by  Administrative Agent under any Loan Document (A) upon termination of all  Commitments and payment in full of all Obligations (other than (1) contingent  indemnification obligations and (2) obligations and liabilities under Bank Product  Agreements as to which arrangements satisfactory to the applicable Bank Product  Provider shall have been made) and the expiration or termination of all Letters of  Credit (other than Letters of Credit as to which other arrangements satisfactory to  Administrative Agent and L/C Issuer shall have been made), (B) that is sold or  otherwise disposed of or to be sold or otherwise disposed of as part of or in  connection with any sale or other disposition permitted under the Loan Documents,  or (C) if approved, authorized or ratified in writing by Required Lenders or all  Lenders, as applicable, under Section 11.10;  (ii) to subordinate any Lien on any Property granted to or held by  Administrative Agent under any Loan Document to the holder of any Lien on such  Property that is permitted by Section 7.2; and  (iii) to release any Guarantor from its obligations under the Guaranty if  such Person ceases to be a Subsidiary as a result of a transaction permitted under  the Loan Documents.  Upon request by Administrative Agent at any time, Required Lenders will confirm  in writing Administrative Agent’s authority to release or subordinate its interest in  particular types or items of Property, or to release any Guarantor from its obligations under  





 






  CREDIT AGREEMENT – Page 131    the Guaranty pursuant to this Section 10.9. Upon the occurrence of any of the events  specified in Section 10.9(a)(i)(A), (B) or (C) or Section 10.9(a)(iii), at Borrowers’ expense,  Administrative Agent shall execute and deliver to Borrowers such documentation as  Borrowers shall reasonably request to release the applicable Collateral from the Liens  created by the Loan Documents and/or release the applicable Guarantor from its  obligations under its Guaranty, as the case may be.  (b) Administrative Agent shall not be responsible for or have a duty to ascertain  or inquire into any representation or warranty regarding the existence, value or  collectability of the Collateral, the existence, priority or perfection of Administrative  Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection  therewith, nor shall Administrative Agent be responsible or liable to Lenders for any failure  to monitor or maintain any portion of the Collateral.  Section 10.10 Bank Product Agreements.  No Bank Product Provider who obtains the  benefits of Section 9.3, any Guaranty or any Collateral by virtue of the provisions hereof or of any  Guaranty or any Security Document shall have any right to notice of any action or to consent to,  direct or object to any action hereunder or under any other Loan Document or otherwise in respect  of the Collateral (including the release or impairment of any Collateral) (or to notice of or to  consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or  any Security Document) other than in its capacity as a Lender and, in such case, only to the extent  expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article 10  to the contrary, Administrative Agent shall not be required to verify the payment of, or that other  satisfactory arrangements have been made with respect to, Bank Product Obligations unless  Administrative Agent has received written notice of such Bank Product Obligations, together with  such supporting documentation as Administrative Agent may request, from the applicable Bank  Product Provider. Administrative Agent shall not be required to verify the payment of, or that other  satisfactory arrangements have been made with respect to, Bank Product Obligations arising under  Bank Product Agreements upon termination of all Commitments and payment in full of all  Obligations under the Loan Documents (other than contingent indemnification obligations) and  the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other  arrangements satisfactory to Administrative Agent and L/C Issuer shall have been made).  Section 10.11 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,  the Administrative Agent and its respective Affiliates, and not, for the avoidance of doubt,  to or for the benefit of the Borrowers or any other Loan Party, that at least one of the  following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of the  Plan Asset Regulations) of one or more Benefit Plans with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Commitments or this Agreement,  





 






  CREDIT AGREEMENT – Page 132    (ii) the transaction exemption set forth in one or more PTEs, such as  PTE 84-14 (a class exemption for certain transactions determined by independent  qualified professional asset managers), PTE 95-60 (a class exemption for certain  transactions involving insurance company general accounts), PTE 90-1 (a class  exemption for certain transactions involving insurance company pooled separate  accounts), PTE 91-38 (a class exemption for certain transactions involving bank  collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to  such Lender’s entrance into, participation in, administration of and performance of  the Loans, the Letters of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)  such Qualified Professional Asset Manager made the investment decision on behalf  of such Lender to enter into, participate in, administer and perform the Loans, the  Letters of Credit, the Commitments and this Agreement, (C) the entrance into,  participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement satisfies the requirements of sub- sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of  such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied  with respect to such Lender’s entrance into, participation in, administration of and  performance of the Loans, the Letters of Credit, the Commitments and this  Agreement, or  (iv) such other representation, warranty and covenant as may be agreed  in writing between the Administrative Agent, in its sole discretion, and such  Lender.  (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or such Lender has provided another representation, warranty  and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such  Lender further (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto  to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent and their respective Affiliates, and not, for the avoidance of doubt,  to or for the benefit of the Borrowers or any other Loan Party, that none of the  Administrative Agent, the Arranger or any other arranger of this Agreement or any  amendment thereto, or any of their respective Affiliates is a fiduciary with respect to the  Collateral or the assets of such Lender (including in connection with the reservation or  exercise of any rights by the Administrative Agent under this Agreement, any Loan  Document or any documents related hereto or thereto).  (c) The Administrative Agent hereby informs the Lenders that each such  Person is not undertaking to provide investment advice or to give advice in a fiduciary  capacity, in connection with the transactions contemplated hereby, and that such Person  has a financial interest in the transactions contemplated hereby in that such Person or an  Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the  





 






  CREDIT AGREEMENT – Page 133    Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii)  may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments  for an amount less than the amount being paid for an interest in the Loans, the Letters of  Credit or the Commitments by such Lender or (iii) may receive fees or other payments in  connection with the transactions contemplated hereby, the Loan Documents or otherwise,  including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees,  underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees,  utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or  alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s  acceptance fees, breakage or other early termination fees or fees similar to the foregoing.  Section 10.12 Acknowledgement with Respect to Erroneous Payments.    (a) Each Lender hereby agrees that (i) if the Administrative Agent notifies such  Lender that the Administrative Agent has determined in its sole discretion that any funds  received by such Lender from the Administrative Agent or any of its Affiliates (whether as  a payment, prepayment or repayment of principal, interest, fees or otherwise; individually  and collectively, an “Erroneous Payment”) were erroneously transmitted to such Lender  (whether or not known to such Lender), and demands the return of such Erroneous Payment  (or a portion thereof), such Lender shall promptly, but in no event later than one Business  Day thereafter, return to the Administrative Agent the amount of any such Erroneous  Payment (or portion thereof) as to which such a demand was made in same day funds,  together with interest thereon in respect of each day from and including the date such  Erroneous Payment (or portion thereof) was received by such Lender to the date such  amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and  a rate determined by the Administrative Agent in accordance with banking industry rules  on interbank compensation from time to time in effect, and (ii) to the extent permitted by  applicable Law, such Lender shall not assert, and hereby waives, as to the Administrative  Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to  any demand, claim or counterclaim by the Administrative Agent for the return of any  Erroneous Payments received, including without limitation any defense based on  “discharge for value” or any similar doctrine.  A notice of the Administrative Agent to any  Lender under this Section 10.12 shall be conclusive, absent manifest error.   (b) Each Lender hereby further agrees that if it receives an Erroneous Payment  from the Administrative Agent or any of its Affiliates (i) that is in a different amount than,  or on a different date from, that specified in a notice of payment sent by the Administrative  Agent (or any of its Affiliates) with respect to such Erroneous Payment (a “Payment  Notice”) or (ii) that was not preceded or accompanied by a Payment Notice, it shall be on  notice, in each such case, that an error has been made with respect to such Erroneous  Payment.  Each Lender agrees that, in each such case, or if it otherwise becomes aware an  Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall  promptly notify the Administrative Agent of such occurrence and, upon demand from the  Administrative Agent, it shall promptly, but in no event later than one Business Day  thereafter, return to the Administrative Agent the amount of any such Erroneous Payment  (or portion thereof) as to which such a demand was made in same day funds, together with  interest thereon in respect of each day from and including the date such Erroneous Payment  





 






  CREDIT AGREEMENT – Page 134    (or portion thereof) was received by such Lender to the date such amount is repaid to the  Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect.   (c) The Borrower hereby agrees that (x) in the event an Erroneous Payment (or  portion thereof) are not recovered from any Lender that has received such Erroneous  Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated  to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment  shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the  Borrower or any other Loan Party.   (d) Each party’s obligations under this Section 10.12 shall survive the  resignation or replacement of the Administrative Agent or any transfer of rights or  obligations by, or the replacement of, a Lender, the termination of the Commitments or the  repayment, satisfaction or discharge of all Obligations under any Loan Document.   ARTICLE 11.    MISCELLANEOUS  Section 11.1 Expenses.  (a) Each Borrower hereby agrees to pay on demand:  (i) all reasonable out-of- pocket costs and expenses of Arranger, Administrative Agent, L/C Issuer, Swing Line  Lender and their Related Parties in connection with the syndication and distribution of the  Revolving Credit Facility and the preparation, negotiation, execution, delivery and  administration of this Agreement and the other Loan Documents and any and all  amendments, modifications, renewals, extensions, supplements, waivers, consents and  ratifications thereof and thereto, including, without limitation, the reasonable fees and  expenses of legal counsel, advisors, consultants, and auditors for Administrative Agent,  L/C Issuer, Swing Line Lender and their Related Parties; (ii) all reasonable costs and  expenses of Administrative Agent, L/C Issuer, Swing Line Lender and each Lender in  connection with any Default and the enforcement of this Agreement or any other Loan  Document, including, without limitation, court costs and fees and expenses of legal  counsel, advisors, consultants, and auditors for Administrative Agent, L/C Issuer, Swing  Line Lender and each Lender; (iii) all reasonable costs and expenses incurred by L/C Issuer  in connection with the issuance, amendment, renewal or extension of any Letter of Credit  or any demand for payment thereunder; (iv) all transfer, stamp, documentary, or other  similar taxes, assessments, or charges levied by any Governmental Authority in respect of  this Agreement or any of the other Loan Documents; (v) all reasonable costs, expenses,  assessments, and other charges incurred in connection with any filing, registration,  recording, or perfection of any Lien contemplated by this Agreement or any other Loan  Document; and (vi) all other reasonable costs and expenses incurred by Administrative  Agent, L/C Issuer, Swing Line Lender and any Lender in connection with the enforcement  or protection of its rights under this Agreement or any other Loan Document, any workout  or restructuring (including the negotiations thereof), any litigation, dispute, suit,  





 






  CREDIT AGREEMENT – Page 135    proceeding or action, the enforcement of its rights and remedies, and the protection of its  interests in bankruptcy, insolvency or other legal proceedings, including, without  limitation, all costs, expenses, and other charges (including Administrative Agent’s and  such Lender’s, L/C Issuer’s, and Swing Line Lender’s internal charges) incurred in  connection with evaluating, observing, collecting, examining, auditing, appraising, selling,  liquidating, or otherwise disposing of the Collateral or other assets of the Loan Parties.   Borrowers shall be responsible for all expenses described in this clause (a) whether or not  any Credit Extension is ever made.  Any amount to be paid under this Section 11.1 shall  be a demand obligation owing by Borrowers and if not paid within ten (10) days of demand  shall bear interest, to the extent not prohibited by and not in violation of applicable Law,  from the date of expenditure until paid at a rate per annum equal to the Default Interest  Rate.  The obligations of Borrowers under this Section 11.1 shall survive payment of the  Notes and other obligations hereunder and the assignment of any right hereunder.  (b) To the extent that Borrowers for any reason fail to indefeasibly pay any  amount required under Section 11.1(a) or Section 11.2 to be paid by it to Administrative  Agent, L/C Issuer, or Swing Line Lender (or any sub-agent thereof) or any Related Party  of Administrative Agent, L/C Issuer, or Swing Line Lender (or any sub-agent thereof),  each Lender severally agrees to pay to Administrative Agent, L/C Issuer, or Swing Line  Lender (or any such sub-agent) or such Related Party, as the case may be, such Lender’s  pro rata share (determined as of the time that the applicable unreimbursed expense or  indemnity payment is sought based on each Lender’s share of the Revolving Credit  Exposure at such time) of such unpaid amount (including any such unpaid amount in  respect of a claim asserted by such Lender); provided that the unreimbursed expense or  indemnified loss, claim, damage, liability or related expense, as the case may be, was  incurred by or asserted against Administrative Agent, L/C Issuer, or Swing Line Lender  (or any such sub-agent) or against any Related Party of Administrative Agent, L/C Issuer,  or Swing Line Lender (or any sub-agent thereof) acting for Administrative Agent, L/C  Issuer, or Swing Line Lender (or any such sub-agent) in connection with such capacity.   EACH LENDER ACKNOWLEDGES THAT SUCH PAYMENTS MAY BE IN  RESPECT OF LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED  EXPENSES ARISING OUT OF OR RESULTING FROM THE SOLE,  CONTRIBUTORY, COMPARATIVE, CONCURRENT OR ORDINARY  NEGLIGENCE OF THE PERSON (OR THE REPRESENTATIVES OF THE  PERSON) TO WHOM SUCH PAYMENTS ARE TO BE MADE.  Section 11.2 INDEMNIFICATION.  EACH BORROWER SHALL INDEMNIFY  ARRANGER, ADMINISTRATIVE AGENT, L/C ISSUER, SWING LINE LENDER, EACH  LENDER AND EACH RELATED PARTY THEREOF (EACH, AN “INDEMNITEE”) FROM,  AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES,  LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS,  COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) TO WHICH ANY OF THEM  MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR  RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE,  ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS,  (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS,  (C) ANY BREACH BY ANY BORROWER OF ANY REPRESENTATION, WARRANTY,  





 






  CREDIT AGREEMENT – Page 136    COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN  DOCUMENTS, (D) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL,  REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT,  WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF HOLDINGS OR  ANY OF ITS SUBSIDIARIES OR ANY OTHER LOAN PARTY, (E) ANY LOAN OR LETTER  OF CREDIT OR USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING  ANY REFUSAL BY THE L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A  LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH  DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF  CREDIT) OR (F) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING,  INCLUDING, WITHOUT LIMITATION, ANY THREATENED OR PROSPECTIVE  INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY OF THE  FOREGOING, WHETHER BROUGHT BY A THIRD PARTY OR BY ANY LOAN PARTY.   WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER  LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT  EACH INDEMNITEE SHALL BE INDEMNIFIED FROM AND HELD HARMLESS  AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES,  JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’  FEES) ARISING OUT OF OR RESULTING FROM THE SOLE, CONTRIBUTORY,  COMPARATIVE, CONCURRENT OR ORDINARY NEGLIGENCE OF SUCH INDEMNITEE  (OR THE REPRESENTATIVES OF SUCH PERSON); provided that such indemnity shall not,  as to any Indemnitee, be available to the extent such losses, liabilities, claims, damages, penalties,  judgments, disbursements, costs and expenses (x) are determined by a court of competent  jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or  willful misconduct of such Indemnitee or (y) result from a claim not involving an act or omission  of any Loan Party and that is brought by an Indemnitee against another Indemnitee (other than  against the Arranger or Administrative Agent in their capacities as such).  Any amount to be paid  under this Section 11.2 shall be a demand obligation owing by Borrowers and if not paid within  fifteen (15) days after demand therefor shall bear interest, to the extent not prohibited by and not  in violation of applicable Law, from the date of expenditure until paid at a rate per annum equal to  the Default Interest Rate.  The obligations of Borrowers under this Section 11.2 shall survive  payment of the Notes and other obligations hereunder and the assignment of any right hereunder.  Section 11.3 Limitation of Liability.  None of Administrative Agent, L/C Issuer, Swing  Line Lender, or any Lender, or any of their Related Parties, shall have any liability with respect  to, and each Loan Party hereby waives, releases, and agrees not to sue any of them upon, any claim  for any special, indirect, incidental, or consequential damages (whether in contract, tort or  otherwise) suffered or incurred by any Loan Party in connection with, arising out of, or in any way  related to, this Agreement or any of the other Loan Documents, or any of the transactions  contemplated by this Agreement or any of the other Loan Documents.  Each Loan Party hereby  waives, releases, and agrees not to sue Arranger, Administrative Agent, L/C Issuer, Swing Line  Lender, or any Lender, or any of their Related Parties, for punitive damages in respect of any claim  in connection with, arising out of, or in any way related to, this Agreement or any of the other  Loan Documents, or any of the transactions contemplated by this Agreement or any of the other  Loan Documents.  





 






  CREDIT AGREEMENT – Page 137    Section 11.4 No Duty.  All attorneys, accountants, appraisers, and other professional  Persons and consultants retained by Arranger, Administrative Agent, any Lender, L/C Issuer, or  Swing Line Lender shall have the right to act exclusively in the interest of Arranger or   Administrative Agent or such Lender, L/C Issuer, or Swing Line Lender and shall have no duty of  disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature  whatsoever to any Loan Party or any of such Loan Party’s equity holders, Affiliates, officers,  employees, attorneys, agents, or any other Person.  Section 11.5 Lenders Not Fiduciary.  The relationship between Borrowers and each  other Loan Party on the one hand, and Administrative Agent, Arranger and each Lender, L/C  Issuer, and Swing Line Lender is solely that of debtor and creditor, and none of Administrative  Agent, Arranger, any Lender, L/C Issuer, or Swing Line Lender, on the other hand, has any  fiduciary or other special relationship with Borrowers or any other Loan Party, and no term or  condition of any of the Loan Documents shall be construed so as to deem the relationship between  Borrowers and each other Loan Party on the one hand, and Administrative Agent, Arranger and  each Lender, L/C Issuer, and Swing Line Lender, on the other hand, to be other than that of debtor  and creditor.  Section 11.6 Equitable Relief.  Each Loan Party recognizes that in the event Borrowers  or any other Loan Party fails to pay, perform, observe, or discharge any or all of the Obligations,  any remedy at law may prove to be inadequate relief to Administrative Agent or Lenders, L/C  Issuer, or Swing Line Lender.  Each Loan Party therefore agrees that Administrative Agent, any  Lender, L/C Issuer, or Swing Line Lender, if Administrative Agent or such Lender, L/C Issuer, or  Swing Line Lender so requests, shall be entitled to temporary and permanent injunctive relief in  any such case without the necessity of proving actual damages.  Section 11.7 No Waiver; Cumulative Remedies.  No failure on the part of  Administrative Agent, any Lender, L/C Issuer, or Swing Line Lender to exercise and no delay in  exercising, and no course of dealing with respect to, any right, remedy, power, or privilege under  this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any  right, remedy, power, or privilege under this Agreement preclude any other or further exercise  thereof or the exercise of any other right, remedy, power, or privilege. The rights and remedies  provided for in this Agreement and the other Loan Documents are cumulative and not exclusive  of any rights and remedies provided by Law.  Notwithstanding anything to the contrary contained herein or in any other Loan Document,  the authority to enforce rights and remedies hereunder and under the other Loan Documents against  the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at  law in connection with such enforcement shall be instituted and maintained exclusively by,  Administrative Agent in accordance with Section 9.2 for the benefit of all the Lenders; provided,  however, that the foregoing shall not prohibit (a) Administrative Agent from exercising on its own  behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative  Agent) hereunder and under the other Loan Documents, (b) Swing Line Lender from exercising  the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender)  hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in  accordance with Section 4.2 (subject to the terms of Section 11.22), or (d) any Lender from filing  proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a  





 






  CREDIT AGREEMENT – Page 138    proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if  at any time there is no Person acting as Administrative Agent hereunder and under the other Loan  Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to  Administrative Agent pursuant to Section 9.2 and (ii) in addition to the matters set forth in  clauses (b), (c) and (d) of the preceding proviso and subject to Section 11.22, any Lender may,  with the consent of the Required Lenders, enforce any rights and remedies available to it and as  authorized by the Required Lenders.  Section 11.8 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement  shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns permitted hereby, except that no Loan Party may assign or  otherwise transfer any of its rights, duties, or obligations under this Agreement or the other  Loan Documents without the prior written consent of Administrative Agent and each  Lender, and no Lender may assign or otherwise transfer any of its rights or obligations  hereunder except (i) to an assignee in accordance with the provisions of Section 11.8(b),  (ii) by way of participation in accordance with the provisions of Section 11.8(d), or (iii) by  way of pledge or assignment of a security interest subject to the restrictions of  Section 11.8(e) (and any other attempted assignment or transfer by any party hereto shall  be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to  confer upon any Person (other than the parties hereto, their respective successors and  assigns permitted hereby, Participants to the extent provided in Section 11.8(d) and, to the  extent expressly contemplated hereby, the Related Parties of each of Administrative Agent  and Lenders) any legal or equitable right, remedy or claim under or by reason of this  Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or  more assignees all or a portion of its rights and obligations under this Agreement (including  all or a portion of its Commitment(s) and the Loans at the time owing to it); provided that  any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire  remaining amount of the assigning Lender’s Commitment(s) and/or the Loans at  the time owing to it or contemporaneous assignments to related Approved Funds  (determined after giving effect to such assignments) that equal at least the amount  specified in Section 11.8(b)(i)(B) in the aggregate or in the case of an assignment  to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount  need be assigned; and (B) in any case not described in Section 11.8(b)(i)(A), the  aggregate amount of the Commitment(s) (which for this purpose includes Loans  outstanding hereunder) or, if the applicable Commitment is not then in effect, the  Outstanding Amount of the Loans of the assigning Lender subject to each such  assignment (determined as of the date the Assignment and Assumption with respect  to such assignment is delivered to Administrative Agent or, if “Trade Date” is  specified in the Assignment and Assumption, as of the Trade Date) shall not be less  than $5,000,000, unless each of Administrative Agent and, so long as no Event of  





 






  CREDIT AGREEMENT – Page 139    Default has occurred and is continuing, the Borrower Representative otherwise  consents (each such consent not to be unreasonably withheld or delayed).  (ii) Proportionate Amounts.  Each partial assignment shall be made as  an assignment of a proportionate part of all the assigning Lender’s rights and  obligations under this Agreement with respect to the Loan or the Commitment(s)  assigned.  (iii) Required Consents.  No consent shall be required for any  assignment except to the extent required by Section 11.8(b)(i)(B) and, in addition:  (A) the consent of the Borrower Representative shall be required (such consent not  to be unreasonably withheld or delayed) unless (x) an Event of Default under  Section 9.1(a), Section 9.1(b) (solely to the extent resulting from any failure to  comply with Section 6.1(c)), Section 9.1(c) (solely to the extent resulting from any  representations and warranties made in any Borrowing Base Report and any other  supporting information delivered in connection therewith being false, misleading  or erroneous in any material respect), Section 9.1(e) or Section 9.1(f) has occurred  and is continuing at the time of such assignment, or (y) such assignment is to an  existing Lender, an Affiliate of an existing Lender or an Approved Fund; provided  that (I) to the extent the aggregate amount of the Commitments of the Lenders then  in effect is less than $30,000,000, the Borrower Representative shall be deemed to  have consented to any such assignment to any Person that is not a Qualified  Financial Institution unless it shall object thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received notice  thereof, and (II) in any other event, the Borrower Representative shall be deemed  to have consented to any such assignment to any Person unless it shall object thereto  by written notice to the Administrative Agent within five (5) Business Days after  having received notice thereof; (B) the consent of Administrative Agent (such  consent not to be unreasonably withheld or delayed) shall be required for  assignments in respect of any Commitment or Revolving Credit Loans if such  assignment is to a Person that is not a Lender with a Commitment, an Affiliate of  such Lender or an Approved Fund with respect to such Lender; and (C) the consent  of L/C Issuer and Swing Line Lender 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 Administrative Agent an Assignment and Assumption,  together with a processing and recordation fee of $3,500; provided that  Administrative Agent may, in its sole discretion, elect to waive such processing and  recordation fee in the case of any assignment; and provided further that Borrowers  shall not be obligated to pay for such processing and recording fee except in the  case of any assignment made pursuant to the request of the Borrower  Representative under Section 3.6(b).  The assignee, if it is not a Lender, shall  deliver to Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be  made to (A)  any Loan Party, or to either of their Affiliates or Subsidiaries or  





 






  CREDIT AGREEMENT – Page 140    (B) any Defaulting Lender or any of its Affiliates, 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 (or a holding company, investment vehicle or trust for, or  owned and operated for the primary benefit of, 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  Administrative Agent in an aggregate amount sufficient, upon distribution thereof  as appropriate (which may be outright payment, purchases by the assignee of  participations or subparticipations, or other compensating actions, including  funding, with the consent of the Borrower Representative and Administrative  Agent, the applicable pro rata share of Loans previously requested but not funded  by such Defaulting Lender, to each of which the applicable assignee and assignor  hereby irrevocably consent), to: (A) pay and satisfy in full all payment liabilities  then owed by such Defaulting Lender to Administrative Agent or any Lender  hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate)  its full pro rata share of all Loans and participations in Letters of Credit and Swing  Line Loans in accordance with its Applicable Percentage.  Notwithstanding the  foregoing, in the event that any assignment of rights and obligations of any  Defaulting Lender hereunder shall become effective under applicable Law without  compliance with the provisions of this paragraph, then the assignee of such interest  shall be deemed to be a Defaulting Lender for all purposes of this Agreement until  such compliance occurs.  Subject to acceptance and recording thereof by Administrative Agent pursuant to  Section 11.8(c), from and after the effective date specified in each Assignment and  Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent  of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,  to the extent of the interest assigned by such Assignment and Assumption, be released from  its obligations under this Agreement (and, in the case of an Assignment and Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of  Section 3.1, Section 3.2, Section 11.1 and Section 11.2 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  subsection shall be treated for purposes of this Agreement as a sale by such Lender of a  participation in such rights and obligations in accordance with Section 11.8(d).  Upon the  consummation of any assignment pursuant to this Section 11.8(b), if requested by the  





 






  CREDIT AGREEMENT – Page 141    transferor or transferee Lender, the transferor Lender, Administrative Agent and Borrowers  shall make appropriate arrangements so that replacement Notes are issued to such  transferor Lender (if applicable) and new Notes or, as appropriate, replacement Notes, are  issued to the assignee.  (c) Register.  Administrative Agent, acting solely for this purpose as a non- fiduciary agent of Borrowers, shall maintain at one of its offices in Dallas, Texas a copy of  each Assignment and Assumption delivered to it and a Register.  The entries in the Register  shall be conclusive absent manifest error, and Borrowers, Administrative Agent and  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 Borrowers 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, any Loan Party or Administrative Agent, sell participations to a Participant in all  or a portion of such Lender’s rights and/or obligations under this Agreement (including all  or a portion of its Commitment(s) and/or the Loans owing to it); provided that (i) such  Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall  remain solely responsible to the other parties hereto for the performance of such  obligations, and (iii) each Loan Party, Administrative Agent, and Lenders shall continue to  deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.  For the avoidance of doubt, each Lender shall be  responsible for the indemnity under Section 11.1(b) without regard to the existence of any  participation.  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 Section 11.10 which requires the consent of all Lenders and affects such Participant.   Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1,  3.4 and 3.5 (subject to the requirements and limitations therein, including the requirements  under Section 3.4(g) (it being understood that the documentation required under Section  3.4(g) shall be delivered to the participating Lender)) to the same extent as if it were a  Lender and had acquired its interest by assignment pursuant to paragraph (b) of this  Section; provided that such Participant (A) agrees to be subject to the provisions of Section  3.6 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled  to receive any greater payment under Sections 3.1 or 3.4, with respect to any participation,  than its participating Lender would have been entitled to receive, except to the extent such  entitlement to receive a greater payment results from a Change in Law that occurs after the  Participant acquired the applicable participation.  Each Lender that sells a participation  agrees, at Borrowers’ request and expense, to use reasonable efforts to cooperate with  Borrowers to effectuate the provisions of Section 3.6 with respect to any Participant.  To  the extent permitted by Law, each Participant also shall be entitled to the benefits of Section  11.24 as though it were a Lender; provided that such Participant agrees to pay to  





 






  CREDIT AGREEMENT – Page 142    Administrative Agent any amount set-off for application to the Obligations under the Loan  Documents as required pursuant to Section 11.24; provided further that such Participant  agrees to be subject to Section 11.22 as though it were a Lender.  Each Lender that sells a  participation shall, acting solely for this purpose as a non-fiduciary agent of Borrowers,  maintain a Participant Register; provided that no Lender shall have any obligation to  disclose all or any portion of the Participant Register to any Person (including the identity  of any Participant or any information relating to a Participant’s interest in any  commitments, loans, letters of credit or its other obligations under any Loan Document)  except to the extent that such disclosure is necessary to establish that such commitment,  loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of  the United States Treasury Regulations.  The entries in the Participant Register shall be  conclusive absent manifest error, and such Lender shall treat each Person whose name is  recorded in the Participant Register as the owner of such participation for all purposes of  this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt,  Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility  for maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement to secure obligations of such  Lender, including any pledge or assignment to secure obligations to a Federal Reserve  Bank; provided that no such pledge or assignment shall release such Lender from any of  its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.  (f) Dissemination of Information.  Each Loan Party authorizes  Administrative Agent and each Lender to disclose to any actual purchaser or prospective  purchaser, assignee or other recipient of a Lender’s Commitment, any and all information  in Administrative Agent’s or such Lender’s possession concerning Borrowers, the other  Loan Parties and their respective Affiliates, in each case subject to Section 11.25 hereof.  Section 11.9 Survival.  All representations and warranties made in this Agreement or  any other Loan Document or in any document, statement, or certificate furnished in connection  with this Agreement shall survive the execution and delivery of this Agreement and the other Loan  Documents, and no investigation by Administrative Agent or any Lender or any closing shall affect  the representations and warranties or the right of Administrative Agent or any Lender to rely upon  them.  Without prejudice to the survival of any other obligation of any Loan Party hereunder, the  obligations of Borrowers under Sections 11.1 and 11.2 shall survive repayment of the Obligations  and termination of the Commitments.  Section 11.10 Amendment.  Subject to Section 3.3(b), the provisions of this Agreement  and the other Loan Documents to which Borrowers or any other Loan Party is a party (other than  the Issuer Documents) may be amended or waived only by an instrument in writing signed by  Required Lenders (or by Administrative Agent with the consent of Required Lenders) and each  Loan Party thereto and acknowledged by Administrative Agent; provided, however, that no such  amendment or waiver shall:  





 






  CREDIT AGREEMENT – Page 143    (a) waive any condition set forth in Section 4.1, without the written consent of  each Lender;  (b) extend or increase any Commitment of any Lender (or reinstate any  Commitment terminated pursuant to Section 9.2) without the written consent of such  Lender;  (c) postpone any date fixed by this Agreement or any other Loan Document for  any payment (excluding mandatory prepayment) of principal, interest, fees or other  amounts due to Lenders (or any of them) hereunder or under any other Loan Document  without the written consent of each Lender directly affected thereby;  (d) reduce the principal of, or the rate of interest specified herein on, any Loan,  or any fees or other amounts payable hereunder or under any other Loan Document without  the written consent of each Lender directly affected thereby; provided, however, that (i)  any amendment or modification of the financial covenants in this Agreement (or any  defined term used therein) shall not constitute a reduction in the rate of interest or fees for  purposes of this clause (d) and (ii) only the consent of Required Lenders shall be necessary  to adjust the Default Interest Rate or to waive any obligation of Borrowers to pay interest  at such rate;  (e) change any provision of this Section 11.10 or the definition of “Required  Lenders” or any other provision hereof specifying the number or percentage of Lenders  required to amend, waive or otherwise modify any rights hereunder or make any  determination or grant any consent hereunder, without the written consent of each Lender;  (f) change Section 9.3 in a manner that would alter the pro rata sharing of  payments required thereby without the written consent of each Lender;or  (g) release any Guaranty or all or substantially all of the Collateral (in each  case, except as provided herein) without the written consent of each Lender;  (h) (i) subordinate any of the Obligations in right of payment to any other Debt  or otherwise adversely affect the priority of payment of the Obligations or (ii) subordinate  the Lien securing any of the Obligations to any other Lien securing any other Debt (except  with respect to Liens permitted pursuant to Section 7.2(j) as provided in Section 10.9), in  each case, without the consent of each Lender affected thereby; or  (i) increase the advance rates set forth in the definition of Borrowing Base or  add new categories of eligible assets to the calculation of the Borrowing Base, in each case,  without the written consent of each Lender;  and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed  by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C  Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to  be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the  Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the  Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in  





 






  CREDIT AGREEMENT – Page 144    writing and signed by Administrative Agent in addition to Lenders required above, affect the rights  or duties of Administrative Agent under this Agreement or any other Loan Document; (iv) the Fee  Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by  the parties thereto; and (v) Borrowers and Administrative Agent may amend this Agreement or  any other Loan Document without the consent of Lenders (unless the Required Lenders object in  writing within five (5) Business Days of notice by Administrative Agent of such amendment) in  order to (A) correct, amend or cure any ambiguity, inconsistency or defect or correct any  typographical error or other manifest error in any Loan Document or (B) comply with local Law  or advice of local counsel in any jurisdiction the Laws of which govern any Security Document or  that are relevant to the creation, perfection, protection and/or priority of any Lien in favor of  Administrative Agent, (C) effect the granting, perfection, protection, expansion or enhancement  of any security interest in any Collateral or additional property to become Collateral for the benefit  of the Secured Parties, (D) make administrative or operational changes not adverse to any Lender  or (E) add a Guarantor or Collateral or otherwise enhance the rights and benefits of the Lenders.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right  to approve or disapprove any amendment, waiver or consent hereunder (and any amendment,  waiver or consent which by its terms requires the consent of all Lenders or each affected Lender  may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except  that (x) the Commitment(s) of any Defaulting Lender may not be increased or extended without  the consent of such Lender; and (y) any waiver, amendment or modification requiring the consent  of all Lenders or each affected Lender that by its terms affects any Defaulting Lender  disproportionately adversely relative to other affected Lenders shall require the consent of such  Defaulting Lender.  Section 11.11 Notices.  (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in Section 11.11(b)),  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 or, solely in the case of notices and other communications to the Loan  Parties, by e-mail, in each case as set forth on Schedule 11.11 (provided, however, that any  notice or communication sent by facsimile to a Loan Party shall also be delivered in writing  via a separate method provided in this Section 11.11(a)).  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  Section 11.11(b) shall be effective as provided in Section 11.11(b).  (b) Electronic Communications.  Notices and other communications to  Lenders and hereunder may be delivered or furnished by electronic communication  (including e-mail and internet or intranet websites) pursuant to procedures approved by  Administrative Agent, provided that the foregoing shall not apply to notices to any Lender  pursuant to Article 2 if such Lender has notified Administrative Agent that it is incapable  





 






  CREDIT AGREEMENT – Page 145    of receiving notices under Article 2 by electronic communication.  Administrative Agent  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 Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s  receipt of an acknowledgement from the intended recipient (such as by the “return receipt  requested” function, as available, return e-mail or other written acknowledgement);  provided that, , 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 e-mail facsimile, email or other electronic  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,  facsimile number or e-mail address for notices and other communications hereunder by  notice to the other parties hereto, Schedule 11.11 shall be deemed to be amended by each  such change, and Administrative Agent is authorized, in its discretion, from time to time  to reflect each such change in an amended Schedule 11.11 provided by Administrative  Agent to each party hereto.  (d) Platform.  (i) Each Loan Party agrees that Administrative Agent may, but shall  not be obligated to, make the Communications (as defined below) available to the  Lenders, L/C Issuer or Swing Line Lender by posting the Communications on the  Platform.  (ii) The Platform is provided “as is” and “as available.”  The Agent  Parties 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 Parties have any  liability to any Loan Party, 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 any Loan Party’s or Administrative Agent’s transmission of  Communications through the Platform.  (iii) Each Loan Party (by its, his or her execution of a Loan Document)  hereby authorizes Administrative Agent, each Lender, Swing Line Lender and their  





 






  CREDIT AGREEMENT – Page 146    respective counsel and agents and Related Parties (each an “Authorized Party”) to  communicate and transfer documents and other information (including confidential  information) concerning this transaction or any Loan Party and the business affairs  of such Loan Parties via the internet or other electronic communication method.  In  no event shall any Authorized Party have any liability to any Loan Party, any  Lender or any other Person or entity for damages of any kind (whether in tort,  contract or otherwise) arising out of any such communications or transmissions,  except to the extent that such damages are determined by a court of competent  jurisdiction in a final and nonappealable judgment to have directly resulted from  the gross negligence or willful misconduct of such Authorized Party; provided,  however, that in no event shall any Authorized Party have any liability for indirect,  special, incidental, consequential or punitive damages (as opposed to direct or  actual damages).  Section 11.12 Governing Law; Venue; Service of Process.  (a) Governing Law.  This Agreement and the other Loan Documents and any  claims, controversy, dispute or cause of action (whether in contract or tort or otherwise)  based upon, arising out of or relating to this Agreement or any other Loan Document  (except, as to any other Loan Document, as expressly set forth therein) and the transactions  contemplated hereby and thereby shall be governed by, and construed in accordance with,  the Laws of the Texas (without reference to applicable rules of conflicts of Laws), except  to the extent the Laws of any jurisdiction where Collateral is located require application of  such Laws with respect to such Collateral.  (b) Jurisdiction.  Each Loan Party irrevocably and unconditionally agrees that  it will not commence any action, litigation or proceeding of any kind or description,  whether in law or equity, whether in contract or in tort or otherwise, against Administrative  Agent, any Lender, L/C Issuer, Swing Line Lender or any Related Party of the foregoing  in any way relating to this Agreement or any other Loan Document or the transactions  relating hereto or thereto, in any forum other than any U.S. federal or Texas state court  sitting in Dallas County, 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 Texas state court or, to the fullest extent permitted by applicable Law,  in such federal court.  Each of the parties hereto agrees that a final judgment in any such  action, litigation or proceeding shall be conclusive and may be enforced in other  jurisdictions by suit on the judgment or in any other manner provided by Law.  Nothing in  this Agreement or in any other Loan Document shall affect any right that Administrative  Agent, any Lender, L/C Issuer or Swing Line Lender may otherwise have to bring any  action or proceeding relating to this Agreement or any other Loan Document against any  Borrower or any of the other Loan Parties or their Properties in the courts of any  jurisdiction.  (c) Waiver of Venue.  Each Loan Party irrevocably and unconditionally  waives, to the fullest extent permitted by applicable Law, any objection that it may now or  hereafter have to the laying of venue of any action or proceeding arising out of or relating  





 






  CREDIT AGREEMENT – Page 147    to this Agreement or any other Loan Document in any court referred to in paragraph (b)  of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent  permitted by applicable Law, the defense of an inconvenient forum to the maintenance of  such action or proceeding in any such court.  (d) Service of Process.  Each party hereto irrevocably consents to service of  process by the mailing thereof, in the manner provided for the mailing of notices in  Section 11.11.  Nothing in this Agreement will affect the right of any party hereto to serve  process in any other manner permitted by applicable Law.  Section 11.13 Counterparts.  This Agreement may be executed in one or more  counterparts, each of which shall be deemed an original, but all of which together shall constitute  one and the same instrument.  Except as provided in Section 4.1, this Agreement shall become  effective when it shall have been executed by Administrative Agent and when Administrative  Agent shall have received counterparts hereof that, when taken together, bear the signatures of  each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this  Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective  as delivery of a manually executed counterpart of this Agreement.  Section 11.14 Severability.  Any provision of this Agreement or any other Loan  Document held by a court of competent jurisdiction to be invalid or unenforceable shall not impair  or invalidate the remainder of this Agreement and the effect thereof shall be confined to the  provision held to be invalid or illegal.  Furthermore, in lieu of such invalid or unenforceable  provision there shall be added as a part of this Agreement or the other Loan Documents a provision  as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be  legal, valid and enforceable.  Section 11.15 Headings.  The headings, captions, and arrangements used in this  Agreement are for convenience only and shall not affect the interpretation of this Agreement.  Section 11.16 Construction.  Each Loan Party, Administrative Agent and each Lender  acknowledge that each of them has had the benefit of legal counsel of its own choice and has been  afforded an opportunity to review this Agreement and the other Loan Documents with its legal  counsel and that this Agreement and the other Loan Documents shall be construed as if jointly  drafted by each Loan Party, Administrative Agent and each Lender.  Section 11.17 Independence of Covenants.  All covenants hereunder shall be given  independent effect so that if a particular action or condition is not permitted by any of such  covenants, the fact that it would be permitted by an exception to, or be otherwise within the  limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken  or such condition exists.  Section 11.18 WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING  DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT  OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED  





 






  CREDIT AGREEMENT – Page 148    HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER  THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND  (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS  BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS  SECTION 11.18.  Section 11.19 Additional Interest Provision; Ceiling Election.    (a) It is expressly stipulated and agreed to be the intent of each Loan Party,  Administrative Agent and each Lender at all times to comply strictly with the applicable Law  governing the maximum rate or amount of interest payable on the indebtedness evidenced by any  Note, any other Loan Document, and the Related Indebtedness (or applicable United States federal  Law to the extent that it permits any Lender to contract for, charge, take, reserve or receive a  greater amount of interest than under applicable Law).  If the applicable Law is ever judicially  interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or  received pursuant to any Note, any of the other Loan Documents or any other communication or  writing by or between any Borrower or any other Loan Party and any Lender related to the  transaction or transactions that are the subject matter of the Loan Documents, (b) contracted for,  charged, taken, reserved or received by reason of Administrative Agent’s or any Lender’s exercise  of the option to accelerate the maturity of any Note and/or the Related Indebtedness, or (c) any  Loan Party will have paid or Administrative Agent or any Lender will have received by reason of  any voluntary prepayment by Borrowers or any other Loan Party of any Note and/or the Related  Indebtedness, then it is Borrowers’ and each other Loan Party’s, Administrative Agent’s and  Lenders’ express intent that all amounts charged in excess of the Maximum Rate shall be  automatically canceled, ab initio, and all amounts in excess of the Maximum Rate theretofore  collected by Administrative Agent or any Lender shall be credited on the principal balance of any  Note and/or the Related Indebtedness (or, if any Note and all Related Indebtedness have been or  would thereby be paid in full, refunded to Borrowers or such other Loan Party, as applicable), and  the provisions of any Note and the other Loan Documents shall immediately be deemed reformed  and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of  the execution of any new document, so as to comply with the applicable Law, but so as to permit  the recovery of the fullest amount otherwise called for hereunder and thereunder; provided,  however, if any Note or Related Indebtedness has been paid in full before the end of the stated  term thereof, then Borrowers, each other Loan Party, Administrative Agent and each Lender agree  that Administrative Agent or any Lender, as applicable, shall, with reasonable promptness after  Administrative Agent or such Lender discovers or is advised by any Loan Party that interest was  received in an amount in excess of the Maximum Rate, either refund such excess interest to such  Loan Party, as applicable, and/or credit such excess interest against such Note and/or any Related  Indebtedness then owing by Borrowers and the other Loan Parties to Administrative Agent or such  Lender.  Each Loan Party hereby agrees that as a condition precedent to any claim seeking usury  penalties against Administrative Agent or such Lender, such Loan Party will provide written notice  to Administrative Agent or any Lender, advising Administrative Agent or such Lender in  reasonable detail of the nature and amount of the violation, and Administrative Agent or such  





 






  CREDIT AGREEMENT – Page 149    Lender shall have sixty (60) days after receipt of such notice in which to correct such usury  violation, if any, by either refunding such excess interest to such Loan Parties, as applicable, or  crediting such excess interest against the Note to which the alleged violation relates and/or the  Related Indebtedness then owing by the Loan Parties to Administrative Agent or such Lender.  All  sums contracted for, charged, taken, reserved or received by Administrative Agent or any Lender  for the use, forbearance or detention of any debt evidenced by any Note and/or the Related  Indebtedness shall, to the extent permitted by applicable Law, be amortized or spread, using the  actuarial method, throughout the stated term of such Note and/or the Related Indebtedness  (including any and all renewal and extension periods) until payment in full so that the rate or  amount of interest on account of any Note and/or the Related Indebtedness does not exceed the  Maximum Rate from time to time in effect and applicable to such Note and/or the Related  Indebtedness for so long as debt is outstanding.  Notwithstanding anything to the contrary  contained herein or in any of the other Loan Documents, it is not the intention of Administrative  Agent or any Lender to accelerate the maturity of any interest that has not accrued at the time of  such acceleration or to collect unearned interest at the time of such acceleration.     (b) To the extent that any Lender is relying on Chapter 303 of the Texas Finance  Code to determine the Maximum Rate payable on any Note and/or any other portion of the  Obligations under the Loan Documents, such Lender will utilize the weekly ceiling from time to  time in effect as provided in such Chapter 303.  To the extent United States federal Law permits  any Lender to contract for, charge, take, receive or reserve a greater amount of interest than under  Texas Law, such Lender will rely on United States federal Law instead of such Chapter 303 for  the purpose of determining the Maximum Rate.  Additionally, to the extent permitted by applicable  Law now or hereafter in effect, any Lender may, at its option and from time to time, utilize any  other method of establishing the Maximum Rate under such Chapter 303 or under other applicable  Law by giving notice, if required, to the Borrowers as provided by applicable Law now or hereafter  in effect.  Section 11.20 USA Patriot Act Notice.  Administrative Agent and each Lender hereby  notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain,  verify and record information that identifies each Loan Party, which information includes the name  and address of each Loan Party and other information that will allow Administrative Agent and  such Lender to identify each  Loan Party in accordance with the Patriot Act.  In addition, each  Loan Party agrees to (a) ensure that no Person who owns a controlling interest in or otherwise  controls any Loan Party or any Subsidiary of Holdings or any other Loan Party is or shall be a  Sanctioned Person, (b) not to use or permit the use of proceeds of the Obligations to violate any  Anti-Corruption Laws, Anti-Terrorism Laws or any applicable Sanctions, and (c) comply, or cause  its Subsidiaries to comply, with the applicable Laws.  Section 11.21 Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that  Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to  approve or disapprove any amendment, waiver or consent with respect to this  





 






  CREDIT AGREEMENT – Page 150    Agreement shall be restricted as set forth in the definition of “Required Lenders”  and in Section 11.10.  (ii) Defaulting Lender Waterfall.  Any payment of principal, interest,  fees or other amounts received by Administrative Agent for the account of such  Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to  Article 9 or otherwise) or received by Administrative Agent from a Defaulting  Lender shall be applied at such time or times as may be determined by  Administrative Agent as follows: first, to the payment of any amounts owing by  such Defaulting Lender to Administrative Agent hereunder; second, to the payment  on a pro rata basis of any amounts owing by such Defaulting Lender to L/C Issuer  or Swing Line Lender hereunder; third, to Cash Collateralize L/C Issuer’s Fronting  Exposure, if any, with respect to such Defaulting Lender in accordance with  Section 2.7; fourth, as Borrowers may request (so long as no Default or Event of  Default is continuing), to the funding of any Revolving Credit Loan in respect of  which such Defaulting Lender has failed to fund its portion thereof as required by  this Agreement, as determined by Administrative Agent; fifth, if so determined by  Administrative Agent and Borrowers, to be held in a deposit account and released  pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding  obligations with respect to Revolving Credit Loans under this Agreement and  (y)  Cash Collateralize L/C Issuer’s future Fronting Exposure, if any, with respect  to such Defaulting Lender with respect to future Letters of Credit issued under this  Agreement, in accordance with Section 2.7; sixth, to the payment of any amounts  owing to Lenders, L/C Issuer or Swing Line Lender as a result of any judgment of  a court of competent jurisdiction obtained by any Lender, L/C Issuer or Swing Line  Lender against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; seventh, so long as no Default or  Event of Default is continuing, to the payment of any amounts owing to Borrowers  as a result of any judgment of a court of competent jurisdiction obtained by  Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; and eighth, to such Defaulting  Lender or as otherwise directed by a court of competent jurisdiction; provided that,  if (x) such payment is a payment of the principal amount of any Loans or L/C  Borrowings in respect of which such Defaulting Lender has not fully funded its  appropriate share, and (y) such Loans were made or the related Letters of Credit  were issued at a time when the conditions set forth in Section 4.2 were satisfied or  waived, such payment shall be applied solely to pay the Loans of, and L/C  Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being  applied to the payment of any Loans of, or L/C Obligations owed to, such  Defaulting Lender until such time as all Loans and funded and unfunded  participations in L/C Obligations and Swing Line Loans are held by Lenders pro  rata in accordance with the Commitments under the Revolving Credit Facility  without giving effect to Section 11.21(a)(iv).  Any payments, prepayments or other  amounts paid or payable to a Defaulting Lender that are applied (or held) to pay  amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this  Section 11.21(a)(ii) shall be deemed paid to and redirected by such Defaulting  Lender, and each Lender irrevocably consents hereto.  





 






  CREDIT AGREEMENT – Page 151    (iii) Certain Fees.  (A) No Defaulting Lender shall be entitled to receive any fee  payable under Section 2.4(c) for any period during which that Lender is a  Defaulting Lender (and Borrowers shall not be required to pay any such fee  that otherwise would have been required to have been paid to that  Defaulting Lender).  (B) Each Defaulting Lender shall be entitled to receive Letter of  Credit Fees for any period during which that Lender is a Defaulting Lender  only to the extent allocable to its Applicable Percentage of the stated amount  of Letters of Credit for which it has provided Cash Collateral pursuant to  Section 2.7.  (C) With respect to any fee payable under Section 2.4(c) or to  any Letter of Credit Fee not required to be paid to any Defaulting Lender  pursuant to clause (A) or (B) above, Borrowers shall (x) pay to each Lender  that is a Non-Defaulting Lender that portion of any such fee otherwise  payable to such Defaulting Lender with respect to such Defaulting Lender’s  participation in L/C Obligations or Swing Line Loans that has been  reallocated to such Non-Defaulting Lender pursuant to clause (iv) below,  (y) pay to L/C Issuer and Swing Line Lender, as applicable, the amount of  any such fee otherwise payable to such Defaulting Lender to the extent  allocable to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure  to such Defaulting Lender, and (z) not be required to pay the remaining  amount of any such fee.  (iv) Reallocation of Applicable Percentages to Reduce Fronting  Exposure.  All or any part of such Defaulting Lender’s participation in L/C  Obligations and Swing Line Loans shall be reallocated among the Lenders that are  Non-Defaulting Lenders in accordance with their respective Applicable  Percentages (calculated without regard to such Defaulting Lender’s Commitment)  but only to the extent that such reallocation does not cause the aggregate Revolving  Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting  Lender’s Commitment.  Subject to Section 11.22, no reallocation hereunder shall  constitute a waiver or release of any claim of any party hereunder against a  Defaulting Lender arising from that Lender having become a Defaulting Lender,  including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting  Lender’s increased exposure following such reallocation.  (v) Cash Collateral, Repayment of Swing Line Loans.  If the  reallocation described in clause (a)(iv) above cannot, or can only partially, be  effected, Borrowers shall, without prejudice to any right or remedy available to it  hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an  amount equal to Swing Line Lender’s Fronting Exposure and (y) second, Cash  Collateralize L/C Issuers’ Fronting Exposure in accordance with the procedures set  forth in Section 2.7.  





 






  CREDIT AGREEMENT – Page 152    (b) Defaulting Lender Cure.  If Borrowers, Administrative Agent, Swing Line  Lender and L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender,  Administrative Agent will so notify the parties hereto, whereupon as of the effective date  specified in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any Cash Collateral), that Lender will, to the extent  applicable, purchase at par that portion of outstanding Loans of the other Lenders or take  such other actions as Administrative Agent may determine to be necessary to cause the  Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans  to be held on a pro rata basis by Lenders in accordance with their Applicable Percentages  (without giving effect to Section 11.21(a)(iv)), whereupon such Lender will cease to be a  Defaulting Lender; provided that no adjustments will be made retroactively with respect to  fees accrued or payments made by or on behalf of Borrowers while that Lender was a  Defaulting Lender; and provided, further, that except to the extent otherwise expressly  agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will  constitute a waiver or release of any claim of any party hereunder arising from that  Lender’s having been a Defaulting Lender.  Section 11.22 Sharing of Payments by Lenders.  If any Lender shall, by exercising any  right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or  interest on any of the Loans made by it or other obligations hereunder, resulting in such Lender’s  receiving payment of a proportion of the aggregate amount of such Loans and accrued interest  thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such  greater proportion shall:  (a) notify Administrative Agent of such fact; and  (b) purchase (for cash at face value) participations in the Loans  and such other  obligations of the other Lenders, or make such other adjustments as shall be equitable, so  that the benefit of all such payments shall be shared by Lenders ratably in accordance with  the aggregate amount of principal of and accrued interest on their respective Loans and  other amounts owing them, provided that:  (i) if any such participations are purchased and all or any portion of the  payment giving rise thereto is recovered, such participations shall be rescinded and  the purchase price restored to the extent of such recovery, without interest; and  (ii) the provisions of this Section 11.22 shall not be construed to apply  to: (A) any payment made by or on behalf of Borrowers pursuant to and in  accordance with the express terms of this Agreement (including the application of  funds arising from the existence of a Defaulting Lender); or (B) any payment  obtained by a Lender as consideration for the assignment of or sale of a  participation in any of its Loans or subparticipations in L/C Obligations or Swing  Line Loans to any assignee or participant, other than an assignment to any Borrower  or any Affiliate thereof (as to which the provisions of this Section 11.22 shall  apply).  





 






  CREDIT AGREEMENT – Page 153    Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements  may exercise against such Loan Party, as applicable, rights of setoff and counterclaim with respect  to such participation as fully as if such Lender were a direct creditor of such Loan Party in the  amount of such participation.  Section 11.23 Payments Set Aside.  To the extent that any payment by or on behalf of  any Loan Party is made to Administrative Agent, L/C Issuer or any Lender, or Administrative  Agent, L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of  such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,  set aside or required (including pursuant to any settlement entered into by Administrative Agent,  L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in  connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent  of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived  and continued in full force and effect as if such payment had not been made or such setoff had not  occurred, and (b) each Lender and L/C Issuer severally agrees to pay to Administrative Agent upon  demand its applicable share (without duplication) of any amount so recovered from or repaid by  Administrative Agent, plus interest thereon from the date of such demand to the date such payment  is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The  obligations of Lenders and L/C Issuer under clause (b) of the preceding sentence shall survive the  payment in full of the Obligations and the termination of this Agreement.  Section 11.24 Setoff.  If an Event of Default has occurred and is continuing,  Administrative Agent and each Lender shall have the right to set off against the Obligations under  the Loan Documents, at any time and without notice to any Loan Party, any and all deposits  (general or special, time or demand, provisional or final) or other sums at any time credited by or  owing from Administrative Agent or such Lender to such Loan Party whether or not the  Obligations under the Loan Documents are then due; provided that in the event that any Defaulting  Lender shall exercise any such right of setoff:  (a) all amounts so set off shall be paid over  immediately to Administrative Agent for further application in accordance with the provisions of  Section 11.21 and, pending such payment, shall be segregated by such Defaulting Lender from its  other funds and deemed held in trust for the benefit of Administrative Agent and Lenders; and (b)  such Defaulting Lender shall provide promptly to Administrative Agent a statement describing in  reasonable detail the Obligations under the Loan Documents owing to such Defaulting Lender as  to which it exercised such right of setoff.  Each amount set off shall be paid to Administrative  Agent for application to the Obligations under the Loan Documents in the order set forth in Section  9.3.  As further security for the Obligations, each Loan Party hereby grants to Administrative Agent  and each Lender a security interest in all money, instruments, and other Property of such Loan  Party, as applicable, now or hereafter held by Administrative Agent or such Lender, including,  without limitation, Property held in safekeeping.  In addition to Administrative Agent’s and each  Lender’s right of setoff and as further security for the Obligations, each Loan Party hereby grants  to Administrative Agent and each Lender a security interest in all deposits (general or special, time  or demand, provisional or final) and other accounts of such Loan Party now or hereafter on deposit  with or held by Administrative Agent or such Lender and all other sums at any time credited by or  owing from Administrative Agent or such Lender to such Loan Party.  The rights and remedies of  Administrative Agent and each Lender hereunder are in addition to other rights and remedies  





 






  CREDIT AGREEMENT – Page 154    (including, without limitation, other rights of setoff) which Administrative Agent or such Lender  may have.  Section 11.25 Confidentiality.  Each of Administrative Agent, L/C Issuer, Swing Line  Lender and the Lenders agrees to maintain the confidentiality of the Information (as defined  below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it  being understood that the Persons to whom such disclosure is made will be informed of the  confidential nature of such Information and instructed to keep such Information confidential or  shall otherwise be subject to confidentiality provisions generally), (b) to any regulatory authority  purporting to have jurisdiction over it (including any self-regulatory authority, such as the National  Association of Insurance Commissioners) or any Governmental Authority, quasi-Governmental  Authority or legislative committee, (c) to the extent required by applicable Laws or regulations or  by any subpoena or similar legal process, (d) to any other party to this Agreement or any other  Loan Document, (e) in connection with the exercise of any remedies hereunder or under any other  Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan  Document or the enforcement of rights hereunder or thereunder, (f) subject to its being under a  duty of confidentiality no less restrictive than this Section 11.25, to (i) any assignee of or  Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under  this Agreement, (ii) any actual or prospective counterparty (or its Related Parties) to any Bank  Product relating to any Loan Party and its obligations, (iii) any actual or prospective purchaser of  a Lender or its holding company, (iv) any rating agency or any similar organization in connection  with the rating of any Loan Party or the Revolving Credit Facility or (v) the CUSIP Service Bureau  or any similar organization in connection with the issuance and monitoring of CUSIP numbers  with respect to the Revolving Credit Facility, (g) with the consent of Borrowers or such other  applicable Loan Parties, or (h) to the extent such Information (i) becomes publicly available other  than as a result of a breach of this Section 11.25 or (ii) becomes available to Administrative Agent,  L/C Issuer, Swing Line Lender, any Lender or any of their respective Affiliates on a  nonconfidential basis from a source other than Borrowers.  In addition, Administrative Agent and  the Lenders may disclose the existence of this Agreement and information about this Agreement  to market data collectors, similar service providers to the lending industry and service providers to  Administrative Agent and the Lenders in connection with the administration of this Agreement,  the other Loan Documents, and the Commitments.  For purposes of this Section 11.25,  “Information” means all information received from any Borrower or any other Loan Party or any  Subsidiary thereof relating to any Borrower or any other Loan Party or any Subsidiary thereof or  any of their respective businesses which is clearly identified as confidential, other than any such  information that is available to Administrative Agent, L/C Issuer, Swing Line Lender or any  Lender on a nonconfidential basis prior to disclosure by any Borrower or any other Loan Party or  any Subsidiary thereof; provided that, in the case of information received from any Borrower or  any other Loan Party or any Subsidiary thereof after the date hereof, such information is clearly  identified at the time of delivery as confidential.  Any Person required to maintain the  confidentiality of Information as provided in this Section 11.25 shall be considered to have  complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Information as such Person would accord to its own  confidential information.  Each Loan Party hereto agrees and confirms that, as between such Loan  Party and Texas Capital Bank, the obligations of Texas Capital Bank under this Section 11.25  supersede and replace in their respective entireties all confidentiality, non-disclosure and similar  





 






  CREDIT AGREEMENT – Page 155    obligations of Texas Capital Bank, if any, set forth in any previous agreement between such Loan  Party and Texas Capital Bank notwithstanding anything to the contrary contained therein.  Each Loan Party hereby authorizes Administrative Agent, with the written consent of the Borrower  Representative, to publish the name and logo of any Loan Party and the amount of the credit facility  provided hereunder in any “tombstone” or comparable advertisement which Administrative Agent  desires to publish; provided, however, that Administrative Agent may provide industry trade  organizations information necessary for inclusion in league table measurements without the  written consent of, but with notice to, the Borrower Representative.  Section 11.26 Electronic Execution of Assignments and Certain Other Documents.   The words “execute”, “execution”, “signed”, “signature”, and words of like import in or related to  this Agreement, any other Loan Document or any Assignment and Assumption or in any  amendment or other modification hereof (including waivers and consents) shall be deemed to  include electronic signaturesElectronic Signatures or execution in the form of an Electronic  Record, the electronic matching of assignment terms and contract formations on electronic  platforms approved by Administrative Agent, or the keeping of records in electronic form, each of  which shall be of the same legal effect, validity or enforceability as a manually executed signature  or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided  for in any applicable Law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar  state Laws based on the Uniform Electronic Transactions Act.  Each party hereto agrees that any  Electronic Signature or execution in the form of an Electronic Record shall be valid and binding  on itself and each of the other parties hereto to the same extent as a manual, original signature.  Notwithstanding anything contained herein to the contrary, Administrative Agent is under no  obligation to accept an Electronic Signature in any form or in any format unless expressly agreed  to by Administrative Agent pursuant to procedures approved by it; provided that  without limiting  the foregoing, (a) to the extent Administrative Agent has agreed to accept such Electronic  Signature from any party hereto, Administrative Agent and the other parties hereto shall be entitled  to rely on any such Electronic Signature purportedly given by or on behalf of the executing party  without further verification and (b) upon the request of Administrative Agent or any Lender, any  Electronic Signature shall be promptly followed by an original manually executed counterpart  thereof.  Section 11.27 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any Lender that is an Affected Financial Institution arising under any Loan  Document, to the extent such liability is unsecured, may be subject to the Write-Down and  Conversion Powers of the applicable Resolution Authority and agrees and consents to, and  acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder which may be  payable to it by any Lender that is an Affected Financial Institution; and  





 






  CREDIT AGREEMENT – Page 156    (b) the effects of any Bail-In Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent entity,  or a bridge institution that may be issued to it or otherwise conferred on it, and that  such shares or other instruments of ownership will be accepted by it in lieu of any  rights with respect to any such liability under this Agreement or any other Loan  Document; or  (iii) the variation of the terms of such liability in connection with the  exercise of the Write-Down and Conversion Powers of the applicable Resolution  Authority.  Section 11.28 Keepwell.  Each Qualified ECP Guarantor party hereby jointly and  severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other  support as may be needed from time to time by each other Loan Party to honor all of such other  Loan Party’s (a) Swap Obligations and (b) obligations under the Guaranty including those with  respect to Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be  liable under this Section for the maximum amount of such liability that can be hereby incurred  without rendering its obligations under this Section, or otherwise under this Agreement or any  other Loan Document, voidable under applicable Law relating to fraudulent conveyance or  fraudulent transfer, and not for any greater amount).  The obligations of each Qualified ECP  Guarantor under this Section shall remain in full force and effect until the Obligations (other than  contingent indemnification obligations that survive the termination of this Agreement) have been  paid in full and the Commitments have expired or terminated.  Each Qualified ECP Guarantor  intends that this Section constitute, and this Section shall be deemed to constitute, a “keepwell,  support, or other agreement” for the benefit of each other Loan Party for all purposes of Section  1a(18)(A)(v)(ii) of the Commodity Exchange Act.  Section 11.29 NOTICE OF FINAL AGREEMENT.  THIS AGREEMENT AND THE  OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE  PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY  NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR  SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN  ORAL AGREEMENTS AMONG THE PARTIES.  Section 11.30 Acknowledgement Regarding Any Supported QFCs.  To the extent that  the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or  any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each  such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act  (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in  respect of such Supported QFC and QFC Credit Support (with the provisions below applicable  





 






  CREDIT AGREEMENT – Page 157    notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be  governed by the laws of the State of Texas and/or of the United States or any other state of the  United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such  Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or  under such Supported QFC and such QFC Credit Support, and any rights in property securing such  Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the  same extent as the transfer would be effective under the U.S. Special Resolution Regimes if the  Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in  property) were governed by the laws of the United States or a state of the United States.  In the  event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding  under a U.S. Special Resolution Regimes, Default Rights under the Loan Documents that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights  could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan  Documents were governed by the laws of the United States or a state of the United States.  ARTICLE 12.    GUARANTY  Section 12.1 Guaranty.  In consideration of the Loans, advances and other credit  heretofore or hereafter granted by the Secured Parties to Borrowers pursuant to this Agreement  and the other Loan Documents and in further consideration of any Bank Product Agreements,  Guarantors hereby, jointly and severally, unconditionally, absolutely and irrevocably, guarantee  to the Secured Parties, the due and punctual payment at maturity, whether by acceleration or  otherwise, and the due fulfillment and performance of the Obligations.  Each Guarantor is jointly  and severally liable for the full payment and performance of the Obligations as a primary obligor.  Section 12.2 Payment.  If any of the Obligations is not punctually paid when such  indebtedness becomes due and payable, either by its terms or as a result of the exercise of any  power to accelerate, Guarantors shall, immediately on demand and without presentment, protest,  notice of protest, notice of nonpayment, notice of intent to accelerate, notice of acceleration or any  other notice whatsoever (all of which are expressly waived in accordance with Section 12.3  hereof), pay the amount due and payable thereon to Administrative Agent, at its Principal Office.   It is not necessary for Administrative Agent, in order to enforce such payment by Guarantors, first  to institute suit or exhaust its remedies against Borrowers or others liable on the Obligations, or to  enforce its rights against any security given to secure such Obligations.  Administrative Agent is  not required to mitigate damages or take any other action to reduce, collect or enforce the  Obligations.  No setoff, counterclaim, reduction or diminution of any obligation, or any defense  of any kind which any Guarantor has or may have against any Borrower or any Secured Party shall  be available hereunder to Guarantors.  No payment by any Guarantor shall discharge the liability  of Guarantors hereunder until the Obligations have been fully satisfied and the Release Date shall  have occurred.  If Administrative Agent must rescind or restore any payment, or any part thereof,  received by Administrative Agent on any part of the Obligations, any prior release or discharge  





 






  CREDIT AGREEMENT – Page 158    from the terms of this Guaranty given Guarantors by Administrative Agent or any reduction of any  Guarantor’s liability hereunder shall be without effect, and this Guaranty shall remain in full force  and effect.  Section 12.3 Agreements and Waivers.  Each Guarantor  (a) agrees to all terms and agreements heretofore or hereafter made by  Borrowers with Administrative Agent and/or any other Secured Party;  (b) agrees that Administrative Agent may without impairing its rights or the  obligations of such Guarantor hereunder (i) waive or delay the exercise of any of its rights  or remedies against or release Borrowers or any other Person, including, without limitation,  any other party who is or whose Property is liable with respect to the Obligations or any  part thereof (Guarantors and any such other Person or Persons are hereafter collectively  called the “Sureties” and individually called a “Surety”); (ii) take or accept any other  security, collateral or guaranty, or other assurance of the payment of all or any part of the  Obligations; (iii) release, surrender, exchange, subordinate or permit or suffer to exist any  deterioration, waste, loss or impairment (including without limitation negligent, willful,  unreasonable or unjustified impairment) of any collateral, Property or security, at any time  existing in connection with, or assuring or securing payment of, all or any part of the  Obligations or the liability of such Guarantor or any other Surety; (iv) increase, renew,  extend, or modify the terms of any of the Obligations or any instrument or agreement  evidencing the same; (v) apply payments by Borrowers, any Surety, or any other Person,  to any of the Obligations; (vi) bring suit against any one or more Sureties without joining  any other Surety or Borrowers in such proceeding; (vii) compromise or settle with any one  or more Sureties in whole or in part for such consideration or no consideration as  Administrative Agent may deem appropriate; or (viii) partially or fully release any  Guarantor or any other Surety from liability hereunder;  (c) agrees that the obligations of such Guarantor under this Guaranty shall not  be released, diminished, or adversely affected by any of the following:  (i) the insolvency,  bankruptcy, rearrangement, adjustment, composition, liquidation, disability, dissolution or  lack of power of Borrowers or any Surety; (ii) the invalidity, illegality or unenforceability  of all or any part of the Obligations or any document or agreement executed in connection  with the Obligations, for any reason, or the fact that any debt included in the Obligations  exceeds the amount permitted by Law; (iii) the failure of Administrative Agent or any other  party to exercise diligence or reasonable care or to act in a commercially reasonable manner  in the preservation, protection, enforcement, sale or other handling or treatment of all or  any part of such collateral, Property or security; (iv) the fact that any collateral, security or  Lien contemplated or intended to be given, created or granted as security for the repayment  of the Obligations is not properly perfected or created, or proves to be unenforceable or  subordinate to any other Lien; (v) the fact that any Borrower has any defense to the payment  of all or any part of the Obligations; (vi) any payment by Borrowers or any Surety to  Administrative Agent and/or any other Secured Party is a preference under applicable  Debtor Relief Laws, or for any reason Administrative Agent and/or any other Secured Party  is required to refund such payment or pay such amounts to Borrowers, any such Surety, or  someone else; (vii) any defenses which Borrowers could assert on the Obligations,  





 






  CREDIT AGREEMENT – Page 159    including but not limited to failure of consideration, breach of warranty, fraud, payment,  accord and satisfaction, strict foreclosure, statute of frauds, bankruptcy, statute of  limitations, lender liability and usury; or (viii) any other action taken or omitted to be taken  with respect to this Agreement, the Loan Documents, the Obligations, the security and  collateral therefor whether or not such action or omission prejudices such Guarantor or any  Surety, or increases the likelihood that such Guarantor will be required to pay the  Obligations pursuant to the terms hereof;  (d) agrees that such Guarantor is obligated to pay the Obligations when due,  notwithstanding any occurrence, circumstance, event, action or omission whatsoever,  whether or not particularly described herein, except for the full and final payment and  satisfaction of the Obligations;  (e) to the extent allowed by applicable Law, waives all rights and remedies now  or hereafter accorded by applicable Law to guarantors or sureties, including without  limitation any defense, right of offset or other claim which such Guarantor may have  against Borrowers or which Borrowers may have against Administrative Agent and/or the  Lenders;  (f) waives all notices whatsoever with respect to this Guaranty or with respect  to the Obligations, including, but without limitation, notice of (i) Administrative Agent’s  and/or any other Secured Party’s acceptance hereof or its intention to act, or its action, in  reliance hereon; (ii) the present existence, future incurring, or any amendment of the  provisions of any of the Obligations or any terms or amounts thereof or any change therein  in the rate of interest thereon; (iii) any default by Borrowers or any Surety; or (iv) the  obtaining, enforcing, or releasing of any guaranty or surety agreement (in addition hereto),  pledge, assignment or other security for any of the Obligations;   (g) waives notice of presentment for payment, notice of protest, protest,  demand, notice of intent to accelerate, notice of acceleration and notice of nonpayment,  protest in relation to any instrument evidencing any of the Obligations, and any demands  and notices required by Law, except as such waiver may be expressly prohibited by Law,  and diligence in bringing suits against any Surety; and  (h) waives each right to which it may be entitled by virtue of the Laws of the  State of Texas governing or relating to suretyship and guaranties, including, without  limitation, any rights under Rule 31, Texas Rules of Civil Procedure, Chapter 51 of the  Texas Property Code, Section 17.001 of the Texas Civil Practice and Remedies Code,  Section 3.605 of the Uniform Commercial Code, and Chapter 43 of the Texas Civil Practice  and Remedies Code, as any or all the same may be amended or construed from time to  time, or the common law of the State of Texas at all relevant times.  Section 12.4 Liability.  The liability of each Guarantor under this Guaranty is  irrevocable, absolute and unconditional, without regard to the liability of any other Person, and  shall not in any manner be affected by reason of any action taken or not taken by Administrative  Agent and/or any other Secured Party, which action or inaction is herein consented and agreed to,  nor by the partial or complete unenforceability or invalidity of any other guaranty or surety  





 






  CREDIT AGREEMENT – Page 160    agreement, pledge, assignment or other security for any of the Obligations.  No delay in making  demand on Sureties or any of them for satisfaction of the liability hereunder shall prejudice  Administrative Agent’s right to enforce such satisfaction.  All of Administrative Agent’s rights  and remedies shall be cumulative and any failure of Administrative Agent to exercise any right  hereunder shall not be construed as a waiver of the right to exercise the same or any other right at  any time, and from time to time, thereafter.  This is a continuing guaranty of payment, not a  guaranty of collection, and this Guaranty shall be binding upon Guarantors regardless of how long  before or after the date hereof any of the Obligations were or are incurred.  Section 12.5 Subordination.  If a Borrower or any other Loan Party is now or hereafter  becomes indebted to one or more Guarantors (such indebtedness and all interest thereon is referred  to as the “Affiliated Debt”), such Affiliated Debt shall be subordinate in all respects to the full  payment and performance of the Obligations, and no Guarantor shall be entitled to enforce or  receive payment with respect to any Affiliated Debt until the Release Date.  Each Guarantor agrees  that any Liens, mortgages, deeds of trust, security interests, judgment liens, charges or other  encumbrances upon any Loan Party’s assets securing the payment of the Affiliated Debt shall be  and remain subordinate and inferior to any Liens, mortgages, deeds of trust, security interests,  judgment liens, charges or other encumbrances upon any Loan Party’s assets securing the payment  of the Obligations, and without the prior written consent of Administrative Agent, no Guarantor  shall exercise or enforce any creditor’s rights of any nature against any Loan Party to collect the  Affiliated Debt (other than demand payment therefor).  In the event of the receivership,  bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceedings involving  any Borrower or any applicable Loan Party as a debtor, Administrative Agent has the right and  authority, either in its own name or as attorney-in-fact for any applicable Guarantor, to file such  proof of debt, claim, petition or other documents and to take such other steps as are necessary to  prove its rights hereunder and receive directly from the receiver, trustee or other court custodian,  payments, distributions or other dividends which would otherwise be payable upon the Affiliated  Debt.  Each Guarantor hereby assigns such payments, distributions and dividends to  Administrative Agent, and irrevocably appoints Administrative Agent as its true and lawful  attorney-in-fact with authority to make and file in the name of such Guarantor any proof of debt,  amendment of proof of debt, claim, petition or other document in such proceedings and to receive  payment of any sums becoming distributable on account of the Affiliated Debt, and to execute  such other documents and to give acquittances therefor and to do and perform all such other acts  and  things for and on behalf of such Guarantor as may be necessary in the opinion of  Administrative Agent in order to have the Affiliated Debt allowed in any such proceeding and to  receive payments, distributions or dividends of or on account of the Affiliated Debt.  Section 12.6 Subrogation.  No Guarantor waives or releases any rights of subrogation,  reimbursement or contribution which such Guarantor may have, after full and final payment of the  Obligations, against others liable on the Obligations.  Each Guarantor’s rights of subrogation and  reimbursement are subordinate in all respects to the rights and claims of Administrative Agent and  the other Secured Parties, and no Guarantor may exercise any rights it may acquire by way of  subrogation under this Guaranty, by payment made hereunder or otherwise, until the Release Date.   If any amount is paid to any Guarantor on account of such subrogation rights prior to the Release  Date, such amount shall be held in trust for the benefit of Administrative Agent and/or the other  Secured Parties to be credited and applied on the Obligations, whether matured or unmatured.  





 






  CREDIT AGREEMENT – Page 161    Section 12.7 Other Indebtedness or Obligations of Guarantors.  If any Guarantor is  or becomes liable for any indebtedness owed by any Loan Party to the Lenders by endorsement or  otherwise than under this Guaranty, such liability shall not be affected by this Guaranty, and the  rights of Administrative Agent and the Lenders hereunder shall be cumulative of all other rights  that Administrative Agent and the Lenders may have against such Guarantor.  The exercise by  Administrative Agent of any right or remedy hereunder or under any other instrument or at law or  in equity shall not preclude the concurrent or subsequent exercise of any other instrument or  remedy at law or in equity and shall not preclude the concurrent or subsequent exercise of any  other right or remedy.  Further, without limiting the generality of the foregoing, this Guaranty is  given by Guarantors as an additional guaranty to all guaranties heretofore or hereafter executed  and delivered to Administrative Agent and/or the Lenders by Guarantors in favor of Administrative  Agent and/or the Lenders relating to the indebtedness of the Loan Parties to the Secured Parties,  and nothing herein shall be deemed to replace or be in lieu of any other of such previous or  subsequent guarantees.  Section 12.8 Costs and Expenses.  Guarantors jointly and severally agree to pay to  Administrative Agent and the Lenders, upon demand, all losses and costs and expenses, including  attorneys’ fees, that may be incurred by Administrative Agent and the Lenders in attempting to  cause the Obligations to be satisfied or in attempting to cause satisfaction of Guarantors’ liability  under this Guaranty.  Section 12.9 Exercising Rights, Etc.  No notice to or demand upon any Guarantor in  any case shall, of itself, entitle such Guarantor or any other Guarantor to any other or further notice  or demand in similar or other circumstances.  No delay or omission by Administrative Agent in  exercising any power or right hereunder shall impair such right or power or be construed as a  waiver thereof or any acquiescence therein, nor shall any single or partial exercise of any such  power preclude other or further exercise thereof, or the exercise of any other right or power  hereunder.  Section 12.10 Benefit; Binding Effect.  This Guaranty shall inure to the benefit of  Administrative Agent and each other Secured Party and their respective successors and assigns,  and to any interest in any of the Obligations.  All of the obligations of Guarantors arising hereunder  shall be jointly and severally binding on each of the Persons signing this Guaranty, and their  respective successors and assigns (provided, however, that no Guarantor may, without the prior  written consent of Administrative Agent in each instance, assign or delegate any of its rights,  powers, duties or obligations hereunder, and any attempted assignment or delegation made without  Administrative Agent’s prior written consent shall be void ab initio and of no force or effect).  Section 12.11 Multiple Guarantors.  It is specifically agreed that Administrative Agent  may enforce the provisions hereof with respect to one or more Guarantors without seeking to  enforce the same as to all or any Guarantors.  If one or more additional guaranty agreements  (“Other Guaranties”) are executed by one or more additional guarantors (“Other Guarantors”),  which guarantee, in whole or in part, any of the Obligations, it is specifically agreed that  Administrative Agent may enforce the provisions of this Guaranty or of the Other Guaranties with  respect to one or more of Guarantors or any one or more of Other Guarantors under the Other  Guaranties without seeking to enforce the provisions of this Guaranty or the Other Guaranties as  to all or any of Guarantors or Other Guarantors.  Each Guarantor hereby waives any requirement  





 






  CREDIT AGREEMENT – Page 162    of joinder of all or any other Guarantor or all or any of the Other Guarantors in any suit or  proceeding to enforce the provisions of this Guaranty or of the Other Guaranties.  The liability  hereunder of all Guarantors hereunder shall be joint and several.  Section 12.12 Additional Guarantors.  From time to time subsequent to the date hereof,  additional Persons may become parties hereto as additional Guarantors (each, an “Additional  Guarantor”), by executing a Joinder Agreement.  Upon delivery of any such Joinder Agreement  to Administrative Agent, notice of which is hereby waived by Guarantors, each Additional  Guarantor shall be a Guarantor and shall be as fully a party hereto as if Additional Guarantor were  an original signatory hereto.  Each Guarantor expressly agrees that its obligations arising hereunder  shall not be affected or diminished by the addition or release of any other Guarantor hereunder,  nor by any election of Administrative Agent not to cause any Subsidiary or Affiliate of Holdings  to become an Additional Guarantor hereunder.  This Guaranty shall be fully effective as to any  Guarantor that is or becomes a party hereto regardless of whether any other Person becomes or  fails to become or ceases to be a Guarantor hereunder.  Section 12.13 Reinstatement.  Notwithstanding anything contained in this Agreement or  the other Loan Documents, the obligations of each Guarantor under this Article 12 shall be  automatically reinstated if and to the extent that for any reason any payment by or on behalf of any  Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of  any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or  otherwise, and each Guarantor agrees that it will indemnify each Secured Party on demand for all  reasonable costs and expenses (including, without limitation, reasonable fees of counsel) incurred  by such Person in connection with such rescission or restoration, including any such costs and  expenses incurred in defending against any claim alleging that such payment constituted a  preference, fraudulent transfer or similar payment under any Debtor Relief Law.  Section 12.14 Maximum Liability.  Anything in this Guaranty to the contrary  notwithstanding, the obligations of each Guarantor hereunder shall be limited to a maximum  aggregate amount equal to the largest amount that would not render its obligations hereunder  subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the  United States Code or any applicable provisions of comparable Law (collectively, the “Fraudulent  Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor,  contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically  excluding, however, any liabilities of such Guarantor in respect of intercompany indebtedness to  other Loan Parties or Affiliates of other Loan Parties to the extent that such indebtedness would  be discharged in an amount equal to the amount paid or Property conveyed by such Guarantor  under the Loan Documents) and after giving effect as assets, subject to Section 12.6, to the value  (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to  subrogation or contribution of such Guarantor pursuant to (a) applicable Law or (b) any agreement  providing for an equitable allocation among such Guarantor and other Loan Parties of obligations  arising under the Loan Documents and Bank Product Agreements.  [Remainder of Page Intentionally Left Blank; Signature Page Follows]     





 






SCHEDULE 2.1  Commitments and Applicable Percentages  Lender Commitment Applicable  Percentage  Texas Capital Bank $30,000,000 100.00%  Total: $30,000,000 100.00%  





 






SCHEDULE 11.11  Notices  Notices under this Agreement shall be given:  (a) if to Holdings, any Borrower or any other Loan Party, to it in the care of the  Borrower Representative:   c/o Natural Gas Services Group, Inc.   404 Veterans Airpark Lane, Suite 300  Midland, Texas 79705  Attention:  Stephen Taylor, President and Chief Executive Officer  E-mail: steve.taylor@ngsgi.com  (b) if to Administrative Agent, to Texas Capital Bank at its Principal Office at:  Texas Capital Bank   2000 McKinney Avenue  Suite 700  Dallas, Texas 75201  Attention:  ABL Portfolio Manager  E-Mail:  ABL@texascapitalbank.com  with a copy to (which shall not constitute notice):  Vinson & Elkins L.L.P.  2001 Ross Avenue, Suite 3900  Dallas, Texas 75201  Attention:  Erec Winandy  E-Mail:  ewinandy@velaw.com  Reporting Items:  Attention: ABL Portfolio Manager  Facsimile No.: (214) 210-3047  Telephone No.: (469) 399-8553  E-mail:  Agency@TexasCapitalBank.com  Borrowing Requests, Repayments & Conversions:  Attention:  Loan Operations/PSE  Facsimile No. (877) 839-0609;  Telephone No. (972) 656-6432;  (c) if to L/C Issuer - Same as (b);  (d) if to Swing Line Lender Same as (b);  





 






(e) if to a Lender (other than Texas Capital Bank), to it at its address (or  facsimile number) set forth in its Administrative Questionnaire.  





 






EXHIBIT D – Borrowing Request – Page 1  EXHIBIT D  Borrowing Request  Date:  ___________, _____  To: Texas Capital Bank, as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement dated as of May 11, 2021 (as amended,  restated, supplemented or otherwise modified from time to time, the “Credit Agreement;” the  terms defined therein and not otherwise defined herein being used herein as therein defined),  among Natural Gas Services Group, Inc., a Colorado corporation (“Holdings”, and together with  any Domestic Subsidiary of Holdings that becomes party thereto from time to time, each a  “Borrower” and collectively, the “Borrowers”), the other Loan Parties from time to time party  thereto, the Lenders from time to time party thereto, and Texas Capital Bank, as Administrative  Agent, Swing Line Lender and L/C Issuer.  The undersigned hereby requests (select one):  □ A Borrowing of Revolving Credit Loans  □ A conversion of Borrowings  □ A continuation of Borrowings  1. On    (a Business Day).  2. In the amount of $   3. Comprised of    (Type of Loans requested)  4. For a Term SOFR Borrowing:  with an Interest Period of ____ months.  The Borrower Representative, on behalf of the Borrowers, hereby represents and warrants  that the conditions specified in Section 4.2 of the Credit Agreement shall be satisfied on and as of  the date of the requested Revolving Credit Borrowing.  





 






EXHIBIT D – Borrowing Request – Page 1  BORROWER REPRESENTATIVE:  NATURAL GAS SERVICES GROUP, INC.,  a Colorado corporation  By:   Name:  Title: