exhibit1043ablcreditagre






                                                               Exhibit 10.43                                                                Execution Version                             ABL CREDIT AGREEMENT                                      among                              RENT-A-CENTER, INC.                                   as Borrower,                  The Several Lenders from Time to Time Parties Hereto,                                       and                          JPMORGAN CHASE BANK, N.A.                              as Administrative Agent,                              Dated as of August 5, 2019         ______________________________________________________________                          JPMORGAN CHASE BANK, N.A.                             CITIZENS BANK, N.A.,                     as Joint Lead Arrangers and Joint Bookrunners                              CITIZENS BANK, N.A.,                               as Syndication Agent                                   BBVA USA,                              as Documentation Agent   509265-2041-31349836.23 





 






                                TABLE OF CONTENTS                                                                            Page   SECTION 1.   DEFINITIONS .........................................................................................................1        1.1   Defined Terms .........................................................................................................1        1.2   Classification of Loans and Borrowings ................................................................50        1.3   Other Definitional Provisions ................................................................................50        1.4   Interest Rate; LIBOR Notification .........................................................................51        1.5   Letter of Credit Amounts .......................................................................................51        1.6   Divisions ................................................................................................................52        1.7   Limited Condition Transactions ............................................................................52        1.8   Calculations............................................................................................................53        1.9   Discontinued Operations ........................................................................................54        1.10  Bridge Loans ..........................................................................................................54   SECTION 2.   AMOUNT AND TERMS OF COMMITMENTS .................................................54        2.1   Commitments .........................................................................................................54        2.2   Procedure for Revolving Loan Borrowing ............................................................54        2.3   Protective Advances...............................................................................................55        2.4   [Reserved] ..............................................................................................................56        2.5   [Reserved] ..............................................................................................................56        2.6   [Reserved] ..............................................................................................................56        2.7   [Reserved ...............................................................................................................56        2.8   Fees, etc..................................................................................................................56        2.9   Termination or Reduction of Commitments ..........................................................56        2.10  Optional Prepayments ............................................................................................57        2.11  Mandatory Prepayment of Loans ...........................................................................57        2.12  Conversion and Continuation Options ...................................................................57        2.13  Limitations on Eurodollar Borrowings ..................................................................58        2.14  Interest Rates and Payment Dates ..........................................................................58        2.15  Computation of Interest and Fees ..........................................................................59        2.16  Alternate Rate of Interest .......................................................................................59        2.17  Pro Rata Treatment and Payments .........................................................................60        2.18  Requirements of Law .............................................................................................63        2.19  Taxes ......................................................................................................................64        2.20  Indemnity ...............................................................................................................69        2.21  Change of Lending Office .....................................................................................69        2.22  Replacement of Lenders ........................................................................................69        2.23  Defaulting Lenders.................................................................................................70        2.24  Incremental Facilities .............................................................................................71   SECTION 3.   LETTERS OF CREDIT .........................................................................................73        3.1   L/C Commitment ...................................................................................................73        3.2   Procedure for Issuance of Letter of Credit .............................................................73        3.3   Fees and Other Charges .........................................................................................74        3.4   L/C Participations ..................................................................................................74                                         i  509265-2041-31349836.23  





 






           3.5   Reimbursement Obligation of the Borrower..........................................................75        3.6   Obligations Absolute .............................................................................................75        3.7   Letter of Credit Payments ......................................................................................76        3.8   Applications ...........................................................................................................76   SECTION 4.   REPRESENTATIONS AND WARRANTIES ......................................................76        4.1   Financial Condition ................................................................................................77        4.2   No Change .............................................................................................................77        4.3   Existence; Compliance with Law ..........................................................................77        4.4   Power; Authorization; Enforceable Obligations ....................................................78        4.5   No Legal Bar ..........................................................................................................78        4.6   Litigation ................................................................................................................78        4.7   No Default ..............................................................................................................78        4.8   Ownership of Property; Liens ................................................................................78        4.9   Intellectual Property ...............................................................................................79        4.10  Taxes ......................................................................................................................79        4.11  Federal Regulations ...............................................................................................79        4.12  Labor Matters .........................................................................................................79        4.13  ERISA ....................................................................................................................79        4.14  Investment Company Act; Other Regulations .......................................................80        4.15  Subsidiaries; Capital Stock ....................................................................................80        4.16  Use of Proceeds......................................................................................................81        4.17  Environmental Matters...........................................................................................81        4.18  Accuracy of Information, etc. ................................................................................81        4.19  Security Documents ...............................................................................................82        4.20  Solvency .................................................................................................................82        4.21  Senior Indebtedness ...............................................................................................82        4.22  [Reserved]. .............................................................................................................82        4.23  Anti-Corruption Laws, Anti-Money Laundering and Sanctions ...........................82        4.24  EEA Financial Institutions .....................................................................................83   SECTION 5.   CONDITIONS PRECEDENT ...............................................................................83        5.1   Conditions to Initial Extension of Credit ...............................................................83        5.2   Conditions to Each Extension of Credit.................................................................86   SECTION 6.   AFFIRMATIVE COVENANTS ...........................................................................86        6.1   Financial Statements ..............................................................................................87        6.2   Certificates; Borrowing Base; Other Information..................................................88        6.3   Payment of Taxes ...................................................................................................90        6.4   Maintenance of Existence; Compliance .................................................................90        6.5   Maintenance of Property; Insurance ......................................................................90        6.6   Books and Records; Inspection of Property; Discussions; Appraisals; Field              Examinations..........................................................................................................91        6.7   Notices ...................................................................................................................92        6.8   Environmental Laws ..............................................................................................93        6.9   [Reserved] ..............................................................................................................93        6.10  Additional Collateral, etc. ......................................................................................93                                         ii  509265-2041-31349836.23  





 






           6.11  Designation of Subsidiaries ...................................................................................94        6.12  Deposit Account Control Agreements ...................................................................95        6.13  Rental and Sales Agreements.................................................................................95   SECTION 7.   NEGATIVE COVENANTS ..................................................................................96        7.1   Consolidated Fixed Charge Coverage Ratio ..........................................................96        7.2   Indebtedness ...........................................................................................................96        7.3   Liens .....................................................................................................................100        7.4   Fundamental Changes ..........................................................................................104        7.5   Disposition of Property ........................................................................................104        7.6   Restricted Payments .............................................................................................107        7.7   Investments ..........................................................................................................108        7.8   Optional Payments and Modifications of Certain Debt Instruments ...................112        7.9   Transactions with Affiliates .................................................................................112        7.10  Sales and Leasebacks ...........................................................................................113        7.11  Swap Agreements ................................................................................................114        7.12  Changes in Fiscal Periods ....................................................................................114        7.13  Negative Pledge Clauses ......................................................................................114        7.14  Clauses Restricting Subsidiary Distributions.......................................................115        7.15  Lines of Business .................................................................................................116        7.16  Use of Proceeds....................................................................................................116   SECTION 8.   EVENTS OF DEFAULT .....................................................................................116   SECTION 9.   THE AGENTS .....................................................................................................120        9.1   Appointment ........................................................................................................120        9.2   Administrative Agent’s Reliance, Indemnification, Etc. .....................................122        9.3   Posting of Communications .................................................................................123        9.4   The Administrative Agent Individually ...............................................................125        9.5   Successor Administrative Agent ..........................................................................125        9.6   Acknowledgements of Lenders and Issuing Lenders ..........................................126        9.7   Collateral Matters.................................................................................................126        9.8   Credit Bidding ......................................................................................................127        9.9   Certain ERISA Matters ........................................................................................128   SECTION 10.   MISCELLANEOUS ..........................................................................................129        10.1  Amendments and Waivers ...................................................................................129        10.2  Notices .................................................................................................................130        10.3  No Waiver; Cumulative Remedies ......................................................................131        10.4  Survival of Representations and Warranties ........................................................132        10.5  Payment of Expenses and Taxes ..........................................................................132        10.6  Successors and Assigns; Participations and Assignments ...................................134        10.7  Adjustments; Set-off ............................................................................................138        10.8  Counterparts .........................................................................................................139        10.9  Severability ..........................................................................................................139        10.10 Integration ............................................................................................................139        10.11 GOVERNING LAW ............................................................................................139                                         iii  509265-2041-31349836.23  





 






           10.12 Submission To Jurisdiction; Waivers ..................................................................140        10.13 Acknowledgements ..............................................................................................140        10.14 Releases of Guarantees and Liens ........................................................................141        10.15 Confidentiality .....................................................................................................141        10.16 WAIVERS OF JURY TRIAL...........................................................................143        10.17 USA Patriot Act ...................................................................................................143        10.18 Intercreditor Agreement .......................................................................................143        10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..........143        10.20 Acknowledgement Regarding Any Supported QFCs ..........................................144                                          iv  509265-2041-31349836.23  





 






    SCHEDULES:   1.1    Commitments  3.1    Existing Letters of Credit  4.13   Pension Plans  4.15   Subsidiaries  4.19   UCC Filing Jurisdictions  7.2(e) Existing Indebtedness  7.3(f) Existing Liens  7.5(l) Scheduled Dispositions  7.7(k) Existing Investments  7.13   Negative Pledge Clauses  7.14   Clauses Restricting Subsidiary Distributions      EXHIBITS:   A      Form of Borrowing Request  B      Form of Interest Election Request  C      Form of Officer’s Certificate  D      Form of Guarantee and Collateral Agreement  E      Form of Assignment and Assumption  F      Form of Compliance Certificate  G      Form of Collateral Monitoring Template  H-1    U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are not Partnerships for         U.S. Federal Income Tax Purposes)  H-2    U.S. Tax Compliance Certificate (For Non-U.S. Participants that are not Partnerships for         U.S. Federal Income Tax Purposes)  H-3    U.S.  Tax Compliance Certificate (For Non-U.S. Participants  that are Partnerships  for         U.S. Federal Income Tax Purposes)  H-4    U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are Partnerships for U.S.         Federal Income Tax Purposes)  I-1    Form of Increased Facility Activation Notice—Incremental Revolving Commitments  I-2    Form of New Lender Supplement  J      Form of Borrowing Base Certificate  K      Form of Intercreditor Agreement  L      Form of Solvency Certificate      509265-2041-31349836.23  





 






               ABL CREDIT  AGREEMENT (this  “Agreement”), dated  as of August  5, 2019,  among Rent-A-Center, Inc., a Delaware corporation (the “Borrower”), the several banks and other  financial institutions  or entities  from  time to  time parties  to  this  Agreement, JPMorgan Chase  Bank, N.A., as administrative agent, and the other agents from time to time parties hereto.               The parties hereto hereby agree as follows:                               SECTION 1.  DEFINITIONS               1.1   Defined  Terms.   As  used  in  this  Agreement,  the  terms  listed  in  this  Section 1.1 shall have the respective meanings set forth in this Section 1.1.               “ABL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.               “ABR” means, when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference  to the Alternate Base Rate.               “Account” has the meaning set forth in the Guarantee and Collateral Agreement.               “Account  Debtor”  has  the  meaning  set  forth  in  the  Guarantee  and  Collateral  Agreement.                “Additional  Permitted  Amount”  has  the  meaning  set  forth  in  the definition  of  Permitted Refinancing Indebtedness.               “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any  Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)  equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.               “Adjustment Date” has the meaning set forth in the Applicable Pricing Grid.               “Administrative  Agent”  means  JPMorgan  Chase  Bank,  N.A.,  together  with  its  affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan  Documents, together with any of its successors.               “Advisory  Fees”  has  the  meaning  set  forth  in  the  definition  of  Consolidated  EBITDA.               “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is  in control of, is controlled by, or is under common control with, such Person.  For purposes of this  definition, “control” of a Person means the power, directly or indirectly, to direct or cause the  direction of the management and policies of such Person, whether by contract or otherwise.               “Agents” means the collective reference to the Administrative Agent and any other  agent identified on the cover page of this Agreement.    509265-2041-31349836.23  





 






               “Aggregate Exposure” means, with respect to any Lender at any time, an amount  equal to the amount of such Lender’s Commitment then in effect or, if the Commitments have  been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.               “Agreement” has the meaning set forth in the preamble hereto.               “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of  (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 1%  and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not  a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose  of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or  if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate)  at approximately 11:00 a.m. London time on such day.  Any change in the Alternate Base Rate  due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective  from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the  Adjusted LIBO Rate, respectively.  If the Alternate Base Rate is being used as an alternate rate of  interest pursuant to Section 2.16, then the Alternate Base Rate shall be the greater of clauses (a)  and (b) above and shall be determined without reference to clause (c) above.  For the avoidance of  doubt,  if  the  Alternate  Base  Rate  as  determined  pursuant  to  the  foregoing  would  be  less  than  1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.               “Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction  applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery  or corruption.               “Applicable Margin” means, initially, 0.50% in the case of ABR Loans and 1.50%  in the case of Eurodollar Loans and, thereafter, subject to adjustment on each Adjustment Date in  accordance with the Applicable Pricing Grids.               “Applicable Parties” has the meaning set forth in Section 9.3(c).               “Applicable Pricing Grids” means the tables set forth below:                Consolidated Leverage  Applicable Margin for Applicable Margin for                       Ratio              ABR Loans           Eurodollar Loans                    < 1.00:1.00              0.50%                 1.50%                  ≥ 1.00:1.00 but <                                             0.75%                 1.75%                     2.00:1.00                    ≥ 2.00:1.00              1.00%                 2.00%                          Average Utilization for                                                     Commitment Fee Rate                           the Prior Month                               <50%                        0.3750%                               ≥50%                        0.250%                                           2  509265-2041-31349836.23  





 






               For the purposes of the Applicable Pricing Grids, (a) the Consolidated Leverage  Ratio shall be determined as of the end of each fiscal quarter of the Borrower based upon the  Borrower’s  consolidated  financial  statements  delivered  pursuant  to  Section  6.1(a) or  (b),  (b)  Average Utilization shall be determined as of the first day of each calendar month of the Borrower  using the previous calendar month as the applicable period, (c) changes in the Applicable Margin  resulting from changes in the Consolidated Leverage Ratio shall become effective on the next first  calendar  day  of  a  month  (the  “Adjustment  Date”)  after  the  date  on  which  the  Borrower’s  consolidated financial statements are delivered to the Administrative Agent pursuant to Section  6.1(a)  or  (b)  and  shall  remain  in  effect  until  the  next  change  to  be  effected  pursuant  to  this  paragraph and (d) changes to the Commitment Fee Rate shall become effective on the first day of  each calendar month based upon the Average Utilization during the previous calendar month and  shall remain in effect until the next change to be effected pursuant to this paragraph.  If, as of any  date that the Borrower’s consolidated financial statements are scheduled to be delivered pursuant  to Section 6.1(a) or (b), such consolidated financial statements shall not have been delivered by  such date, then, until the Adjustment Date occurring after the date on which such consolidated  financial statements are delivered, the Administrative Agent shall declare that the highest rate set  forth  in  each  column  of  the  Applicable  Pricing  Grid  shall  apply.   Automatically,  upon  the  occurrence and continuance of an Event of Default pursuant to Section 8(f), the highest rate set  forth in each column of the Applicable Pricing Grid shall apply.               “Applicable Reference Period” means as of any date of determination, the most  recently ended Reference Period for which financial statements with respect to each fiscal quarter  included in such Reference Period have been delivered pursuant to Section 6.1(a) or 6.1(b) (or,  prior to the delivery of any such financial statements, the Reference Period ended March 31, 2019).               “Application” means an application, in such form as the Issuing Lender may specify  from time to time, requesting the Issuing Lender to open a Letter of Credit, specifying the date of  issuance, amendment, renewal or extension (which shall be a Business Day) and the date on which  such Letter of Credit is to expire and such other information as the Issuing Lender may request.               “Approved Electronic Platform” has the meaning set forth in Section 9.3(a).               “Approved Fund” has the meaning set forth in Section 10.6(b).               “Arranger” means JPMorgan Chase Bank, N.A.               “Assignee” has the meaning set forth in Section 10.6(b)(i).               “Assignment  and  Assumption”  means  an  Assignment and  Assumption,  substantially in the form of Exhibit E or any other form (including electronic records generated by  the use of an electronic Platform) approved by the Administrative Agent.               “Attributable Indebtedness” means in respect of any sale and leaseback transaction,  as at the time of determination, the present value (discounted at the implied interest rate in such  transaction compounded annually) of the total obligations of the lessee for rental payments during  the remaining term of the lease included in such sale and leaseback transaction (including any  period for which such lease has been extended or may, at the option of the lessor, be extended).                                         3  509265-2041-31349836.23  





 






               “Availability” means at any time, an amount equal to (a) the Line Cap minus (b)  the  Total  Revolving Extensions  of  Credit  then  outstanding  (calculated,  with  respect  to  any  Defaulting  Lender,  as  if  such  Defaulting  Lender  had  funded  its  Revolving  Percentage  of  all  outstanding Revolving Loans).               “Available  Commitment”  means  as  to  any  Revolving  Lender  at  any  time,  an  amount equal to the excess, if any, of (a) such Lender’s Commitment then in effect over (b) such  Lender’s Revolving Extensions of Credit then outstanding.               “Average Utilization” means, for any period, an amount, expressed as a percentage,  equal to (a) the daily average Total Revolving Extensions of Credit for such period divided by (b)  the daily average Total Commitments for such period.               “Bail-In Action” means the exercise of any Write-Down and Conversion Powers  by  the  applicable  EEA  Resolution  Authority  in  respect  of  any  liability  of  an  EEA  Financial  Institution.               “Bail-In  Legislation”  means  with  respect  to  any  EEA  Member  Country  implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council  of the European Union, the implementing law for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule.               “Bank Products” means any of the following bank: (a) commercial credit cards and  merchant cards, (b) stored value cards, (c) purchasing cards and (d) treasury, depositary or cash  management services (including operations, collections, payroll, trust, e-payable, electronic funds  transfer,  wire  transfer,  information  reporting,  lockbox,  stop  payment,  controlled  disbursement,  automated clearinghouse transactions, return items, overdrafts and interstate depository network  services) or any other banking products or services as may be requested by the Loan Parties.               “Banking Services” means Bank Products provided to the Borrower or any of its  Restricted Subsidiaries by (a) the Administrative Agent or any of its Affiliates or (b) any Lender  or any of its Affiliates, in each case whether in existence on the Closing Date or provided after the  Closing Date.                 “Banking Services Obligations” means with respect to the Loan Parties, any and all  obligations of the Loan Parties, whether absolute or contingent and howsoever and whensoever  created,  arising,  evidenced  or  acquired  (including  all  renewals,  extensions  and  modifications  thereof and substitutions therefor) in connection with Banking Services.                “Banking Services  Reserves” means  all Reserves  that the Administrative Agent  from time to time establishes in its Permitted Discretion for Banking Services then provided or  outstanding.               “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et  seq.), as now and hereafter in effect, or any successor statute.                “Bankruptcy Event” means with respect to any Person, such Person becomes the  subject  of  a  bankruptcy  or  insolvency  proceeding,  or  has  had  a  receiver,  conservator,  trustee,                                         4  509265-2041-31349836.23  





 






   administrator, custodian, assignee for the benefit of creditors or similar Person charged with the  reorganization or liquidation of its business appointed for it, or, in the good faith determination of  the  Administrative  Agent,  has  taken  any  action  in  furtherance  of,  or  indicating  its  consent  to,  approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy  Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership  interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further,  that such ownership interest does not result in or provide such Person 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 Person (or such Governmental Authority or instrumentality)  to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.               “Bankruptcy Plan” means a reorganization or plan of liquidation pursuant to any  Debtor Relief Laws.               “Base  Incremental  Amount”  means  as  of  any  date,  an  amount  equal  to  (a)  $150,000,000  less  (b)  the  aggregate  principal  amount  of  Indebtedness  established  pursuant  to  Section 7.2(b) or Section 7.2(t) prior to such date in reliance on the Base Incremental Amount.               “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”.               “Benefitted Lender” has the meaning set forth in Section 10.7(a).               “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under,  and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.               “Board”  means  the  Board  of  Governors  of  the  Federal  Reserve  System  of  the  United States (or any successor).               “Borrower” has the meaning set forth in the preamble hereto.               “Borrower Materials” has the meaning set forth in Section 10.15.               “Borrowing”  means  Revolving Loans  of  the  same  Facility  and  Type,  made,  converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single  Interest Period is in effect.               “Borrowing Base” means at any time, the sum of:               (a)   (i) 65% of the book value of the Loan Parties’ Eligible Installment Sales        Accounts at such time, plus                (b)   80% of the Net  Orderly  Liquidation Value of the  Loan Parties’ Eligible        Inventory Held for Rent, determined on a “new” versus “used” basis, identified in the most        recent Inventory appraisal ordered by the Administrative Agent, plus                                         5  509265-2041-31349836.23  





 






               (c)   65% of the lesser of (i) the Net Orderly Liquidation Value identified in the        most recent Rental Agreement Portfolio appraisal ordered by the Administrative Agent and        (ii) if the Administrative Agent has received a Collateral Monitoring Template pursuant to        Section 6.1(c) subsequent to the delivery of the most recent Rental Agreement Portfolio        appraisal ordered by the Administrative Agent, the monthly discounted cash flow amount        set forth in the Collateral Monitoring Template most recently delivered pursuant to Section        6.1(c), minus                 (d)   Reserves;   provided that  in calculating the Borrowing Base, the value of that portion of the Borrowing Base  described in clause (c) shall not exceed an amount equal to 65% of the Recent Rental Proceeds.               The specified percentages set forth in this definition will not be reduced without  the  consent  (not  to  be  unreasonably  withheld,  delayed  or  conditioned)  of  the  Borrower.  Any  determination by the Administrative Agent in respect of the Borrowing Base shall be based on the  Administrative Agent’s Permitted Discretion. The parties understand that the exclusionary criteria  in the definitions of Eligible Installment Sales Accounts, Eligible Inventory Held for Rent and  Eligible Rental Agreements, any Reserves that may be imposed as provided herein, any deductions  or  other  adjustments  to  determine  “lower  of  cost  or  market”  and  factors  considered  in  the  calculation of Net Orderly Liquidation Value have the effect of reducing the Borrowing Base and,  accordingly, whether or not any provisions hereof so state, all of the foregoing shall be determined  without duplication so as not to result in multiple reductions in the Borrowing Base for the same  facts or circumstances.               The Borrowing Base at any time shall be determined by reference to the most recent  Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 6.2(g) or  6.2(i) of this Agreement.               “Borrowing Base Certificate” means a certificate, signed by a Responsible Officer  of the Borrower, in substantially the form of Exhibit J or another form which is acceptable to the  Administrative  Agent  in  its  reasonable  discretion.  All  calculations  of  the  Borrowing  Base  in  connection with the preparation of the Borrowing Base Certificate shall be made by the Borrower.               “Borrowing Date” means any Business Day specified by the Borrower as a date on  which the Borrower requests the relevant Lenders to make Loans hereunder.               “Borrowing Request” means a request by the Borrower for a Revolving Borrowing  in accordance with Section 2.2, which shall be substantially in the form of Exhibit A or any other  form approved by the Administrative Agent.               “Business Day” means a day other than a Saturday, Sunday or other day on which  commercial banks in New York City are authorized or required by law to close, provided, that  with  respect  to  notices  and  determinations  in  connection  with,  and  payments  of  principal  and  interest on, Loans having an interest rate determined by reference to the Adjusted LIBO Rate, such  day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar  market.                                         6  509265-2041-31349836.23  





 






               “Capital  Expenditures”  means  for  any  period,  with  respect  to  any  Person,  the  aggregate of all expenditures by such Person and its Restricted Subsidiaries for the acquisition or  leasing (pursuant to a finance lease) of fixed or capital assets or additions to equipment (including  replacements,  capitalized  repairs  and  improvements  during  such  period)  that  is  required  to  be  capitalized  under  GAAP  on  a  consolidated  balance  sheet  of  such  Person  and  its  Restricted  Subsidiaries.               “Capital  Stock”  means  any  and  all  shares,  interests,  participations  or  other  equivalents  (however  designated)  of  capital  stock  of  a  corporation,  any  and  all  equivalent  ownership  interests  in  a  Person  (other  than  a  corporation)  and  any  and  all  warrants,  rights  or  options to purchase any of the foregoing, but excluding any debt securities convertible into any of  the foregoing.               “Cash  Equivalents”  means  (a)  marketable  direct  obligations  issued  by,  or  unconditionally guaranteed by, the United States Government or issued by any agency thereof and  backed by the full faith and credit of the United States, in each case maturing within two years  from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or  overnight bank deposits having maturities of six months or less from the date of acquisition issued  by any Lender or by any commercial bank organized under the laws of the United States or any  state thereof having combined capital and surplus of not less than $250,000,000; (c) commercial  paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating  by a nationally recognized rating agency, if both of the two named rating agencies cease publishing  ratings of commercial paper issuers generally, and maturing within nine months from the date of  acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the  requirements of clause (b) of this definition, having a term of not more than 30 days, with respect  to securities issued or fully guaranteed or insured by the United States government; (e) securities  with maturities of two years or less from the date of acquisition issued or fully guaranteed by any  state,  commonwealth  or  territory  of  the  United  States,  by  any  political  subdivision  or  taxing  authority of any such state, commonwealth or territory or by any foreign government, the securities  of  which  state,  commonwealth,  territory,  political  subdivision,  taxing  authority  or  foreign  government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with  maturities of six months or less from the date of acquisition backed by standby letters of credit  issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this  definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying  the requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i)  comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940,  as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at  least $1,000,000,000.               “CFC”  means  (a)  each  Person  that  is  a  “controlled  foreign  corporation”  for  purposes of the Code and (b) each Subsidiary of any such Person.               “CFC Holding Company” means each Domestic Subsidiary substantially all of the  assets of which consist of Capital Stock of one or more (a) CFCs or (b) Persons described in this  definition.               “Change of Control” means (a) the acquisition of ownership, directly or indirectly,                                         7  509265-2041-31349836.23  





 






   beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the  rules  of  the  SEC  thereunder,  but  excluding  any  employee  benefit  plan  of  such  Person  or  its  Subsidiaries  and  any  Person  acting  in  its  capacity  as  trustee,  agent  or  other fiduciary  or  administrator of such plan) of Capital Stock of the Borrower representing more than 40% of the  aggregate ordinary (in the absence of contingencies) voting power represented by the issued and  outstanding Capital Stock of the Borrower or (b) for any period of twelve consecutive months  following the Closing Date, the board of directors of the Borrower ceasing to consist of a majority  of individuals (i) who were directors of the Borrower on the first day of such period or (ii) whose  election or nomination for the board of directors of the Borrower was recommended or approved  by at least a majority of directors who were directors of the Borrower on the first day of such  period,  or  whose  election  or  nomination  for  election  was  so  approved.   Notwithstanding  the  preceding sentence or any provision of Rule 13d-3 of the Exchange Act (as in effect on the Closing  Date), a person or “group” shall not be deemed to beneficially own securities subject to an equity  or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar  agreement  related  thereto)  until  the  consummation  of  the  transactions  contemplated  by  such  agreement.               “Closing Date” means August 5, 2019.               “Code” means the Internal Revenue Code of 1986, as amended.               “Collateral”  means  all  property  of  the  Loan  Parties,  now  owned  or  hereafter  acquired, upon which a Lien is purported to be created by any Security Document.               “Collateral Monitoring Template” means a certificate substantially in the form of  Exhibit G or such other form as may be approved by the Administrative Agent in its reasonable  discretion.               “Collateral Access Agreement” means any landlord waiver or other agreement, in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  between  the  Administrative Agent and any third party (including any bailee, consignee, customs broker, or  other similar Person) in possession of any Collateral or any landlord of any real property where  any Collateral is located, as such landlord waiver or other agreement may be amended, restated,  replaced or otherwise modified from time to time.               “Collection  Account”  means  individually  and  collectively,  each  “Collection  Account” referred to in the Guarantee and Collateral Agreement.               “Commencement Date” has the meaning set forth in Section 7.1.               “Commitment” means as to any Lender, the obligation of such Lender, if any, to  make Revolving Loans and participate in Letters of Credit and Protective Advances in an aggregate  principal and/or face amount not to exceed the amount set forth under the heading “Commitment”  opposite such Lender’s name on Schedule 1.1 or in the Assignment and Assumption or Increased  Facility Activation Notice pursuant to which such Lender became a party hereto, as the same may  be changed from time to time pursuant to the terms hereof.  The original amount of the Total  Commitments on the Closing Date is $300,000,000.                                          8  509265-2041-31349836.23  





 






               “Commitment Fee Rate” means, initially 0.25% per annum and, thereafter, subject  to adjustment on the first day of each calendar month in accordance with the Applicable Pricing  Grids.               “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 any Loan Party pursuant to  any  Loan  Document  or  the  transactions  contemplated  therein  which  is  distributed  by  the  Administrative Agent, any Lender or any Issuing Lender by means of electronic communications  pursuant to Section 9.3, including through an Approved Electronic Platform.               “Company Headquarters” means the headquarters of the Borrower located at 5501  Headquarters Drive, Plano, Texas 75024.               “Compliance  Certificate”  means  a  certificate  duly  executed  by  a  Responsible  Officer substantially in the form of Exhibit F.               “Connection Income Taxes” means Other Connection Taxes that are imposed on  or measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.               “Consolidated EBITDA” means for any period, Consolidated Net Income for such  period plus, without duplication and to the extent reflected as a charge in the statement of such  Consolidated Net Income for such period, the sum of:               (a)   provisions for taxes based on income or profits or capital, including state,        franchise, excise and similar taxes and foreign withholding taxes paid or accrued, including        penalties and interest relating to tax examinations,               (b)   interest expense, amortization or writeoff of debt discount and debt issuance        costs and commissions, discounts and other fees and charges associated with Indebtedness        (including the Revolving Loans and the Term Loans),               (c)   depreciation  and  amortization  expense,  including  amortization  of        capitalized expenses for software-as-a-service solutions for accounting,               (d)   non-cash  charges,  losses,  expenses,  accruals  and  provisions,  including        stock-based compensation and sale of assets not in the ordinary course of business (but        excluding any such non-cash charge to the extent that it represents an accrual or reserve        for cash expenses in any future period),               (e)   amortization  of  intangibles  (including,  but  not  limited  to,  impairment  of        goodwill) and organization costs,               (f)   any  extraordinary,  unusual  or  non-recurring  charges,  expenses  or  losses,        including  (i)  legal  and  professional  fees  and  expenses  incurred  in  connection  with  the                                         9  509265-2041-31349836.23  





 






         Vintage Capital Merger and the termination thereof, (ii) other legal settlement expenses        and recoveries, (iii) non-recurring natural disaster-related charges and (iv) infrequent or        unusual inventory adjustments,               (g)   any fees and expenses incurred during such period in connection with any        Investment (including any Permitted Acquisition), Disposition, issuance of Indebtedness        or  Capital  Stock,  or  amendment  or  modification  of  any  debt  instrument,  in  each  case        permitted under this Agreement, including (i) any such transactions undertaken but not        completed  and  any  transactions  consummated  prior  to  the  Closing  Date  and  (ii)  any        financial  advisory  fees,  accounting  fees,  legal  fees  and  other  similar  advisory  and        consulting  fees,  in  each  case  paid  in  cash  during  such  period  (collectively,  “Advisory        Fees”),               (h)   any  fees  and  expenses  incurred  in  connection  with  the  Transactions,        including  Advisory  Fees  and  (solely  for  purposes  of  this  clause (h))  cash  charges  or        expenses in respect of strategic market reviews, stay or sign-on bonuses, integration-related        bonuses,  restructuring,  consolidation,  severance  or  discontinuance  of  any  portion  of        operations, employees and/or management,               (i)   the  amount  of  “run-rate”  cost  savings,  operating  expense  reductions,        operating improvements, revenue enhancements, business optimizations and synergies that        are reasonably identifiable, factually supportable and projected by the Borrower in good        faith  to  be  realized  as  a result  of  mergers  and  other  business  combinations,  Permitted        Acquisitions,  divestitures,  insourcing  initiatives,  cost  savings  initiatives,  plant        consolidations, openings and closings, product rationalization and other similar initiatives        after  the  Closing Date,  in  each  case  to  the  extent  not  prohibited  by  this  Agreement        (collectively, “Initiatives”) (calculated on a pro forma basis as though such cost savings,        operating expense reductions, operating improvements, revenue enhancements, business        optimizations and synergies had been realized on the first day of the relevant Reference        Period), net of the amount of actual benefits realized in respect thereof; provided that (i)        actions  in  respect  of  such  cost-savings,  operating  expense  reductions,  operating        improvements, revenue enhancements, business optimizations and synergies have been, or        will be, taken within 12 months of the applicable Initiative, (ii) no cost savings, operating        expense  reductions,  operating  improvements,  revenue  enhancements,  business        optimizations or synergies shall be added pursuant to this clause (i) to the extent duplicative        of any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA,        whether  through  a  pro  forma  adjustment  or  otherwise,  for  such  period,  (iii)  projected        amounts  (and  not  yet  realized)  may  no  longer  be  added  in  calculating  Consolidated        EBITDA pursuant to this clause (i) to the extent occurring more than eight fiscal quarters        after the applicable Initiative and (iv) with respect to any Reference Period, the aggregate        amount added back in the calculation of Consolidated EBITDA for such Reference Period        pursuant  to  this  clause  (i)  and  clause  (j)  below  shall  not  exceed  25%  of  Consolidated        EBITDA (calculated after giving effect to any add-backs pursuant to this clause (i) and        clause (j) below),               (j)   non-recurring cash expenses or charges recognized for restructuring costs,        integration  costs  and  business  optimization  expenses  in  connection  with  any  Initiative;                                         10  509265-2041-31349836.23  





 






         provided that with respect to any Reference Period, the aggregate amount added back in        the  calculation  of  Consolidated  EBITDA  for  such  Reference  Period  pursuant  to  this        clause (j) and clause (i) above shall not exceed 25% of Consolidated EBITDA (calculated        after giving effect to any add-backs pursuant to this clause (j) and clause (i) above),               (k)   fees,  costs,  expenses  and  charges  associated  with  contract  terminations;        provided that with respect to any Reference Period, the aggregate amount added back in        the calculation of Consolidated EBITDA for such Reference Period pursuant to this clause        (k) shall not exceed 5% of Consolidated EBITDA (calculated after giving effect to any        add-backs pursuant to this clause (k)),               (l)   losses,  charges  and  expenses  related  to  the  early  extinguishment  of        Indebtedness,  hedge  agreements  or other  derivative  instruments  (including  deferred        financing fees), and               (m)   losses, charges and expenses attributable to abandoned, closed, Disposed or        discontinued  operations  and  losses,  charges  and  expenses  related  to  the  abandonment,        closure, Disposal or discontinuation thereof,               minus,               (x)   to the extent included in the statement of such Consolidated Net Income for  such period, the sum of:                      (i) interest income,                      (ii) any extraordinary, unusual or non-recurring income or gains (including,        whether  or  not  otherwise  includable  as  a  separate  item  in  the  statement  of  such        Consolidated  Net  Income  for  such  period,  gains  on  the  sales  of  assets  outside  of  the        ordinary course of business),                      (iii) income tax credits (to the extent not netted from income tax expense),                     (iv) any other non-cash income (other than normal accruals in the ordinary        course of business for non-cash income that represents an accrual for cash income in a        future period),                     (v)  gains  related  to  the  early  extinguishment  of  Indebtedness,  hedge        agreements or other derivative instruments (including deferred financing fees), and                     (vi)  gains  attributable  to  abandoned,  closed,  Disposed  or  discontinued        operations, and               (y)   any cash payments made during such period in respect of items described  in clause (d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or  losses were reflected as a charge in the statement of Consolidated Net Income, all as determined  on a consolidated basis.                                            11  509265-2041-31349836.23  





 






   For the purposes of calculating Consolidated EBITDA for any Reference Period pursuant to any  determination of the Consolidated Leverage Ratio or Consolidated Secured Leverage Ratio, (i) if  at any time during such Reference Period the Borrower or any Restricted Subsidiary shall have  made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be  reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property  that  is  the  subject  of  such  Material  Disposition  for  such  Reference  Period  or  increased  by  an  amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference  Period, (ii) if during such Reference Period the Borrower or any Restricted Subsidiary shall have  made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated  after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of  such Reference Period and (iii) in the case of any Reference Period which includes any fiscal  quarter ended on or prior to the Closing Date, if the respective Reference Period (a) includes the  fiscal quarter of the Borrower ended March 31, 2019, Consolidated EBITDA for such fiscal quarter  shall be deemed to be $66,492,000, (b) includes the fiscal quarter of the Borrower ended December  31, 2018, Consolidated EBITDA for such fiscal quarter shall be deemed to be $48,955,000, (c)  includes the fiscal quarter of the Borrower ended September 30, 2018, Consolidated EBITDA for  such fiscal quarter shall be deemed to be $49,299,000 and (d) includes the fiscal quarter of the  Borrower ended June 30, 2018, Consolidated EBITDA for such fiscal quarter shall be deemed to  be $61,068,000, in each case subject to any pro forma adjustments permitted under this Agreement.               “Consolidated Fixed Charge Coverage Ratio” means for any period, the ratio of (a)  Consolidated EBITDA for such period plus (i) Finance Lease Obligation payments (excluding  imputed  interest  expense  attributable  to  payments  of  Finance  Lease  Obligations  to  the  extent  included in Consolidated Interest Expense) and other rent expenses paid in cash during such period  and (ii) less the aggregate amount actually paid by the Borrower and its Restricted Subsidiaries  during such period on account of (A) Capital Expenditures (excluding the principal amount of  long-term  Indebtedness  (other  than  Revolving  Loans)  incurred  in  connection  with  such  expenditures)  and  (B)  federal,  state,  local  and  foreign  income  taxes  ((x)  net  of  cash  refunds  received during such period and (y) as may be adjusted by the Borrower and the Administrative  Agent acting together in their reasonable discretion in any period to account for timing differences  in the payment of such taxes that are the result of changes in tax legislation) to (b) Consolidated  Fixed Charges for such period.               “Consolidated Fixed Charges” means for any period, the sum (without duplication)  of (a) Consolidated Interest Expense for such period, (b) regularly scheduled principal payments  (other than payments at maturity) made during such period on account of principal of Specified  Indebtedness of the Borrower or any Restricted Subsidiary to a third party, (c) Restricted Payments  made  in  cash  during  such  period  and  (d)  Finance  Lease  Obligation  payments  and  other  rent  expenses  paid  in  cash  during  such  period,  all  calculated  for  the  Borrower  and  its  Restricted  Subsidiaries on a consolidated basis and, to the extent applicable, in accordance with GAAP.               “Consolidated Interest Expense” means for any period, total cash interest expense  (including imputed interest expense attributable to payments of Finance Lease Obligations) of the  Borrower and its Restricted Subsidiaries for such period with respect to all outstanding Specified  Indebtedness  of  the  Borrower  and  its  Restricted  Subsidiaries  (excluding  all  commissions,  discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance                                         12  509265-2041-31349836.23  





 






   financing and net costs under Swap Agreements in respect of interest rates to the extent such net  costs are allocable to such period in accordance with GAAP).               “Consolidated Leverage Ratio” means as at the last day of any Reference Period,  the ratio of (a)(i) Consolidated Total Debt on such day less (ii) the aggregate Unrestricted Cash of  the Group Members on such day to (b) Consolidated EBITDA for such period.                “Consolidated Net Income” means for any period, the consolidated net income (or  loss)  of  the  Borrower  and  its  Restricted  Subsidiaries,  determined  on  a  consolidated  basis  in  accordance with GAAP; provided that there shall be excluded:               (a)   the income (or deficit) of any Person accrued prior to the date it becomes a        Restricted Subsidiary of the Borrower or is merged into or consolidated with the Borrower        or any of its Restricted Subsidiaries;               (b)   the income (or deficit) of any Person (other than a Restricted Subsidiary of        the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership        interest, except to the extent that any such income is actually received by the Borrower or        such Restricted Subsidiary in the form of dividends or similar distributions;               (c)   the undistributed earnings of any Restricted Subsidiary of the Borrower to        the extent that the declaration or payment of dividends or similar distributions by such        Restricted  Subsidiary  is  not  at  the  time  permitted  by  the  terms  of  any  Contractual        Obligation (other than under any Loan Document) or Requirement of Law applicable to        such Restricted Subsidiary;               (d)   any income (or loss) for such period attributable to the early extinguishment        of Indebtedness or Swap Obligations; and               (e)   the cumulative effect of a change in accounting principles and changes as a        result of the adoption or modification of accounting policies during such period.               “Consolidated Secured Debt” means at any date, Consolidated Total Debt at such  date that is secured by a Lien on any property of any Group Member.               “Consolidated Secured Leverage Ratio” means as at the last day of any Reference  Period,  the  ratio  of  (a)(i) Consolidated  Secured  Debt  on  such  day  less  (ii)  the  aggregate  Unrestricted  Cash  of  the  Group  Members  on  such  day  to  (b)  Consolidated  EBITDA  for  such  period.               “Consolidated Total Assets” means at any date of determination, the total assets, in  each  case  reflected  on  the  consolidated  balance  sheet  of  the  Borrower  and  its  Restricted  Subsidiaries as at the end of the most recently ended fiscal quarter of the Borrower for which a  balance  sheet  is  available,  determined  in  accordance  with  GAAP  (and,  in  the  case  of  any  determination related to the incurrence of Indebtedness or Liens or any Investment, on a pro forma  basis including any property or assets being acquired in connection therewith).                                          13  509265-2041-31349836.23  





 






               “Consolidated Total  Debt” means  at  any date (without duplication), all Finance  Lease Obligations, purchase money Indebtedness, Indebtedness for borrowed money and letters  of credit (but only to the extent drawn and not reimbursed), in each case of the Borrower and its  Restricted Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.               “Contractual Obligation” means as to any Person, any provision of any security  issued by such Person or of any agreement, instrument or other undertaking to which such Person  is a party or by which it or any of its property is bound (including its Organizational Documents).               “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 10.20.               “Credit Party” means the Administrative Agent, the Issuing Lender or any other  Lender and, for the purposes of Section 10.13 only, any other Agent and any Arranger.               “Debtor  Relief  Laws”  means  the  Bankruptcy  Code,  and  all  other  liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other  applicable jurisdictions from time to time in effect.               “Default”  means  any  of  the  events  specified  in  Section  8,  whether  or  not  any  requirement for the giving of notice, the lapse of time, or both, has been satisfied.               “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 any Lender that (a) has failed, within two (2) Business  Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any  portion of its participations in Letters of Credit or Protective Advances or (iii) pay over to any  Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)  above, such Lender notifies the Administrative Agent and the Borrower in writing that such failure  is  the  result  of  such  Lender’s  good  faith  determination  that  a  condition  precedent  to  funding  (specifically identified and including the particular default, if any) has not been satisfied, (b) has  notified the Borrower or any Credit Party in writing, or has made a public statement to the effect,  that it does not intend or expect to comply with any of its funding obligations under this Agreement  (unless such writing or public statement indicates that such position is based on such Lender’s  good  faith  determination  that  a  condition  precedent  (specifically  identified  and  including  the  particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally                                         14  509265-2041-31349836.23  





 






   under other agreements in which it commits to extend credit, (c) has failed, within three Business  Days after request by a Credit Party, acting in good faith, to provide a certification in writing from  an authorized officer of such Lender that it will comply with its obligations (and is financially able  to meet such obligations as of the date of certification) to fund prospective Loans and participations  in then outstanding Letters of Credit and Protective Advances under this Agreement, provided that  such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit  Party’s  receipt  of  such  written  certification  in  form  and  substance  satisfactory  to  it  and  the  Administrative Agent or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In  Action.               “Deposit Account Control Agreement” means individually and collectively, each  “Deposit Account Control Agreement” referred to in the Guarantee and Collateral Agreement.               “Designated Non-Cash  Consideration” means  the fair market  value of non-cash  consideration received by the Borrower or one of its Restricted Subsidiaries in connection with a  Disposition that is so designated as Designated Non-Cash Consideration pursuant to a certificate  of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash and  Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash  Consideration within 180 days of receipt of such Designated Non-Cash Consideration.               “Disposition”  means  with  respect  to  any  property,  any  sale,  lease,  sale  and  leaseback, assignment, conveyance, transfer or other disposition(in one transaction or in a series  of related transactions) of any property by any Person (including any issuance of Capital Stock by  a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or  without recourse, of any notes or accounts receivable or any rights and claims associated therewith.   The terms “Dispose” and “Disposed of” shall have correlative meanings.               “Disqualified Capital Stock” means with respect to any Person, any Capital Stock  of such Person that by its terms (or by the terms of any security into which it is convertible or for  which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the  happening of any event or condition:               (a)   matures or is mandatorily redeemable (other than solely for Capital Stock        of  such  Person  that  does  not  constitute  Disqualified  Capital  Stock  and  cash  in  lieu  of        fractional shares of such Capital Stock) whether pursuant to a sinking fund obligation or        otherwise;                (b)   is convertible or exchangeable, either mandatorily or at the option of the        holder thereof, for Indebtedness or Capital Stock (other than solely for Capital Stock of        such Person that does not constitute Disqualified Capital Stock and cash in lieu of fractional        shares of such Capital Stock); or               (c)   is redeemable (other than solely for Capital Stock of such Person that does        not  constitute  Disqualified  Capital  Stock  and  cash  in  lieu  of  fractional  shares  of  such        Capital  Stock)  or  is  required  to  be  repurchased  by  the  Borrower  or  any  Restricted        Subsidiary, in whole or in part, at the option of the holder thereof;   in each case, on or prior to the date that is 91 days after the Latest Maturity Date (determined as                                         15  509265-2041-31349836.23  





 






   of the date of issuance thereof or, in the case of any such Capital Stock outstanding on the Closing  Date, the Closing Date); provided, however, that (i) Capital Stock of any Person that would not  constitute  Disqualified  Capital  Stock  but  for  terms  thereof  giving  holders  thereof  the  right  to  require such Person to redeem or purchase such Capital Stock upon the occurrence of an “asset  sale”, “condemnation” or a “change of control” (or similar event, however denominated) shall not  constitute  Disqualified  Capital  Stock  if  any  such  requirement  becomes  operative  only  after  repayment in full of all the Loans and all other Obligations that are accrued and payable and the  termination of all Commitments and (ii) Capital Stock of any Person that is issued to any employee  or  to  any  plan  for  the  benefit  of  employees  or  by  any  such  plan  to  such  employees  shall  not  constitute Disqualified Capital Stock solely because it may be required to be repurchased by such  Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or  as a result of such employee’s termination, death or disability.               “Disqualified  Lenders”  means  (a)  certain  banks,  financial  institutions,  other  institutional lenders and other Persons that have been specified in writing to the Administrative  Agent by the Borrower prior to the Closing Date, (b) competitors of the Borrower and its Restricted  Subsidiaries and any affiliate of such competitor, in each case, that is identified in writing to the  Administrative  Agent  by  the  Borrower  from  time  to  time  and  (c)  any  affiliates  of  the  entities  described in the foregoing clauses (a) or (b) that are clearly identifiable as affiliates of such entities  solely on the basis of the similarity of their names (other than affiliates that constitute bona fide  debt funds primarily investing in loans).  In no event shall the designation of any Person as a  Disqualified Lender apply (x) to disqualify any Person until three (3) Business Days after such  Person  shall  have  been  identified  in  writing  to  the  Administrative  Agent  via  electronic  mail  submitted to JPMDQ_Contact@jpmorgan.com  (or to  such other address as  the Administrative  Agent may designate to the Borrower from time to time).  For the avoidance of doubt, with respect  to any assignee that becomes a Disqualified Lender after the applicable Trade Date (including as  a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred  to in, this definition)  or is otherwise party to a pending trade as of the date of such notice, (x) such  assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by  the Borrower of an Assignment and Assumption with respect to such assignee will not by itself  result in such assignee no longer being considered a Disqualified Lender.               “Documents” has the meaning set forth in the Guarantee and Collateral Agreement.               “Dollars” and “$” means dollars in lawful currency of the United States.               “Domestic Subsidiary” means any Restricted Subsidiary of the Borrower organized  under the laws of any jurisdiction within the United States.               “EEA  Financial  Institution”  means  (a)  any  institution  established  in  any  EEA  Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any  entity established in an EEA Member Country which is a parent of an institution described in  clause (a) of this definition, or (c) any institution established in an EEA Member Country which  is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to  consolidated supervision with its parent.                                          16  509265-2041-31349836.23  





 






               “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.               “Eligible  Assignee”  means  (a)  a  Lender,  (b)  an  Affiliate  of  a  Lender,  (c)  an  Approved Fund, (d) any commercial bank and (e) any other financial institution or investment  fund engaged as a primary activity in the ordinary course of its business in making or investing in  commercial loans or debt securities, other than, in each case, (i) a natural person, (ii) the Borrower,  any Subsidiary or any other Affiliate of the Borrower or (iii) a Disqualified Lender.               “Eligible Installment Sales Accounts” means at any time, the Accounts of the Loan  Parties which the Administrative Agent determines in its Permitted Discretion (following (to the  extent practicable) reasonable prior notice to, and consultation with, the Borrower, and in any  event exercised consistent with past practice with respect to the Accounts of the Loan Parties) are  eligible as the basis for the extension of Revolving Loans and the issuance of Letters of Credit.   Without  limiting  the  Administrative  Agent’s  Permitted  Discretion  provided  herein,  Eligible  Installment Sales Accounts shall not include any Account:               (a)   which is not subject to a first priority (subject to Permitted Encumbrances)        perfected security interest in favor of the Administrative Agent on behalf of the Secured        Parties;               (b)   which  is  subject to  any  Lien  other  than  (i)  a  Lien  in  favor  of  the        Administrative Agent, (ii) a Lien in favor of the Term Loan Administrative Agent which        does not have priority over the Lien in favor of the Administrative Agent, (iii) a Lien in        favor of the administrative agent or trustee in respect of any Junior Indebtedness which        does  not  have  priority  over  the  Lien  in  favor  of  the  Administrative  Agent  and  (iv)  a        Permitted Encumbrance;               (c)   (i) which is unpaid more than 30 days after the original due date therefor        (“Overage”) (when  calculating  the  amount  under  this  clause  (i),  for  the  same  Account        Debtor, the Administrative Agent shall include the net amount of such Overage and add        back any  credits,  but  only to  the extent that such credits  do not  exceed  the total  gross        receivables from such Account Debtor), or (ii) which has been written off the books of the        Borrower or other applicable Loan Party or otherwise designated as uncollectible;               (d)   with  respect  to  which  any  representation  or  warranty  contained  in  this        Agreement or in the Guarantee and Collateral Agreement is not true in any material respect;               (e)   which (i) does not arise from the sale of goods or performance of services        in  the  ordinary  course  of  business,  (ii)  is  not  evidenced  by  an  invoice  or  other        documentation satisfactory to the Administrative Agent (utilizing its Permitted Discretion        (following (to the extent practicable) reasonable prior notice to, and consultation with, the        Borrower)) which has been sent to the Account Debtor, (iii) represents a progress billing,        (iv)  is contingent  upon  a  Loan  Party’s  completion  of  any  further  performance,  (v)                                         17  509265-2041-31349836.23  





 






         represents  a  sale  on  a  bill-and-hold,  guaranteed  sale,  sale-and-return,  sale  on  approval,        consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to        payments of interest;               (f)   for which the goods giving rise to such Account have not been shipped to        the Account Debtor or if such Account was invoiced more than once;               (g)   with respect to which any check or other instrument of payment has been        returned uncollected for any reason;               (h)   which is owed by an Account Debtor which has (i) applied for, suffered, or        consented to the appointment of any receiver, custodian, trustee, or liquidator of its assets,        (ii) had possession of all or a material part of its property taken by any receiver, custodian,        trustee or liquidator, (iii) filed, or had filed against it, any request or petition for liquidation,        reorganization, arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or        voluntary or involuntary case under any state or federal bankruptcy laws (other than post-       petition accounts payable of an Account Debtor that is a debtor-in-possession under the        Bankruptcy Code and reasonably acceptable to the Administrative Agent), (iv) admitted in        writing its inability, or is generally unable to, pay its debts as they become due, (v) become        insolvent, or (vi) ceased operation of its business;               (i)   which, for any Account Debtor, exceeds a credit limit determined by the        Administrative Agent in its Permitted Discretion, to the extent of such excess;               (j)   which is owed in any currency other than Dollars;               (k)   which is owed by any Affiliate of any Loan Party or any employee, officer        or director of any Loan Party;               (l)   which  is  owed  by  an  Account  Debtor  or  any  Affiliate  of  such  Account        Debtor to which any Loan Party is indebted, but only to the extent of such indebtedness,        or is subject to any security, deposit, progress payment, retainage or other similar advance        made by or for the benefit of an Account Debtor, in each case to the extent thereof;               (m)   which is subject to any asserted counterclaim, deduction, defense, setoff or        dispute but only to the extent of any such asserted counterclaim, deduction, defense, setoff        or dispute;               (n)   which  is  evidenced  by  any  promissory  note  or  instrument  and  such        promissory note or instrument is not pledged and delivered to the Administrative Agent;               (o)   which is owed by an Account Debtor (i) located in any jurisdiction which        requires filing of a “Notice of Business Activities Report” or other similar report in order        to permit the applicable Loan Party to seek judicial enforcement in such jurisdiction of        payment  of  such  Account,  unless  the  applicable  Loan  Party  has  filed  such  report  or        qualified to do business in such jurisdiction or (ii) which is a Sanctioned Person;               (p)   [reserved];                                         18  509265-2041-31349836.23  





 






               (q)   which does not comply in all material respects with the requirements of all        applicable  laws  and  regulations,  whether  Federal,  state  or  local,  including  the  Federal        Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the        Consumer Financial Protection Bureau;                (r)   which is for goods that have been sold under a purchase order or pursuant        to the terms of a written contract or other written agreement that indicates or purports that        any Person other than a Loan Party has or has had an ownership interest in such goods, or        which indicates any party other than a Loan Party as payee or remittance party; or               (s)   which  the  Administrative  Agent  determines  in  its  Permitted  Discretion        (following (to the extent practicable) reasonable prior notice to, and consultation with, the        Borrower) may not be paid by reason of the Account Debtor’s inability to pay or which the        Administrative Agent otherwise determines is unacceptable in its Permitted Discretion.               In  determining  the  amount  of  an  Eligible  Installment  Sales  Account,  the  face  amount of an Account may, in the Administrative Agent’s Permitted Discretion (following (to the  extent practicable) reasonable prior notice to, and consultation with, the Borrower), be reduced by,  without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued  and actual discounts, claims, credits or credits pending, promotional program allowances, price  adjustments, finance charges or other allowances (including any amount that any Loan Party may  be  obligated  to  rebate  to  an  Account  Debtor  pursuant  to  the  terms  of  any  agreement  or  understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of  such  Account  but  not  yet  applied  by  the  applicable  Loan  Party  to  reduce  the amount  of  such  Account.  Standards  of  eligibility  may  be  made  more  restrictive  from  time  to  time  by  the  Administrative Agent in its Permitted Discretion, following (to the extent practicable) reasonable  prior notice to, and consultation with, the Borrower, with any such changes to be effective four  days after delivery of notice thereof to the Borrower and the Lenders; provided that if consultation  with the Borrower and/or notice to the Borrower and the Lenders is not practicable or if failure to  implement any such change within a shorter time period would, in the good faith judgment of the  Administrative Agent, reasonably be expected to result in a Material Adverse Effect or materially  and adversely affect the Collateral (taken as a whole) or the rights of the Lenders under the Loan  Documents  (taken  as  a  whole),  such  change  may  be  implemented  within  a  shorter  time  as  determined by the Administrative Agent in its Permitted Discretion. Prior to any Accounts that are  acquired  in  a  Material  Transaction  becoming  “Eligible  Installment  Sales  Accounts”,  the  Administrative  Agent  shall  have  received  an  audit  and  field  examination  in  respect  of  such  Accounts, the results of which are reasonably satisfactory to the Administrative Agent.               “Eligible Inventory Held for Rent” means at any time, the Inventory Held for Rent  of  the  Loan  Parties  which  the  Administrative  Agent  determines  in  its  Permitted  Discretion  (following  (to  the  extent  practicable)  reasonable  prior  notice  to,  and  consultation  with,  the  Borrower, and in any event exercised consistent with past practice with respect to the Inventory  Held for Rent of the Loan Parties) is eligible as the basis for the extension of Revolving Loans and  the  issuance  of  Letters  of  Credit.   Without  limiting  the  Administrative  Agent’s  Permitted  Discretion provided herein, Eligible Inventory Held for Rent shall not include any Inventory:               (a)   which is not subject to a first priority (subject to Permitted Encumbrances)                                         19  509265-2041-31349836.23  





 






         perfected Lien in favor of the Administrative Agent on behalf of the Secured Parties;               (b)   which  is  subject  to  any  Lien  other  than  (i)  a  Lien  in  favor  of  the        Administrative Agent, (ii) a Lien in favor of the Term Loan Administrative Agent which        does not have priority over the Lien in favor of the Administrative Agent, (iii) a Lien in        favor of the administrative agent or trustee in respect of any Permitted Additional Junior        Lien Indebtedness which does not have priority over the Lien in favor of the Administrative        Agent and (iv) a Permitted Encumbrance;               (c)   which (i) is, in the Administrative Agent’s Permitted Discretion (following        (to the extent practicable) reasonable prior notice to, and consultation with, the Borrower),        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, (ii) is  Inventory that has  been        Inventory Held for Rent for more than 12 months and has not been rented since the date of        acquisition thereof or (iii) which is in disrepair or in the process of being repaired;               (d)   with  respect  to  which  any  representation  or  warranty  contained  in  this        Agreement or in the Guarantee and Collateral Agreement is not true in any material respect        and  which  does  not  conform  in  all  material  respects  to  all  standards  imposed  by  any        Governmental Authority;               (e)   in which any Person other than a Loan Party shall (i) have any direct or        indirect ownership, interest (including rental interest) or title to such Inventory 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  is  not  finished  goods  or  which  constitutes  work-in-process,  raw        materials,  spare  or  replacement  parts,  subassemblies,  packaging  and  shipping  material,        manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or        ship-in-place  goods,  goods  that  are  returned  or  marked  for  return,  repossessed  goods,        defective or damaged goods, goods held on consignment, or goods which are not of a type        held for rent in the ordinary course of business;               (g)   which is not located in the United States or Puerto Rico;                (h)   which  is  not  located  in  a  store,  distribution  center,  collection  center  or        national product service center which premises are, in each case, owned by a Loan Party,        unless such store, distribution center, collection center or national product service center is        leased  by  the  Borrower  and  (i)  the  lessor  has  delivered  to  the  Administrative  Agent  a        Collateral Access Agreement or (ii) a Reserve for rent, charges and other amounts due or        to  become  due  with  respect  to  such  facility  (which  Reserve  shall  be  based  off  the        liquidation  scenario  set  forth  in  the  most  recent  Inventory  appraisal  received  by  the        Administrative Agent) has been established by the Administrative Agent in its Permitted        Discretion;               (i)   which is a discontinued product or component thereof;                                          20  509265-2041-31349836.23  





 






               (j)   which  is  the  subject  of  a  consignment  by  the  applicable  Loan  Party  as        consignor;               (k)   which is perishable;               (l)   which  contains  or  bears  any  intellectual  property  rights  licensed  to  the        applicable Loan Party unless the Administrative Agent is reasonably 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;                (m)   which is not reflected in a current perpetual inventory report of the Loan        Parties (unless such Inventory is reflected in a report to the Administrative Agent as “in        transit” Inventory);               (n)   for which reclamation rights have been asserted by the seller;                (o)   which has been acquired from a Sanctioned Person; or               (p)   which the Administrative Agent in its Permitted Discretion (following (to        the extent practicable)  reasonable prior notice to, and consultation  with,  the Borrower)        determines is unacceptable.               Standards of eligibility  may be made more restrictive from  time to  time by the  Administrative Agent in its Permitted Discretion, after consultation (to the extent practicable) with  the Borrower, with any such changes to be effective four days after delivery of notice thereof to  the Borrower and the Lenders; provided that if consultation with the Borrower and/or notice to the  Borrower and the Lenders is not practicable or if failure to implement any such change within a  shorter time period would, in the good faith judgment of the Administrative Agent, reasonably be  expected to result in a Material Adverse Effect or materially and adversely affect the Collateral  (taken as a whole) or the rights of the Lenders under the Loan Documents (taken as a whole), such  change may be implemented within a shorter time as determined by the Administrative Agent in  its Permitted Discretion. Prior to any Inventory that is acquired in a Material Transaction becoming  “Eligible  Inventory  Held  for  Rent”,  the  Administrative  Agent  shall  have  received  a  field  examination and an appraisal in respect of such Inventory, the results of which are reasonably  satisfactory to the Administrative Agent.               “Eligible Rental Agreements” means, at any time, rental agreements entered into  by any Loan Party with a customer of such Loan Party which the Administrative Agent determines  in its Permitted Discretion (following (to the extent practicable) reasonable prior notice to, and  consultation with, the Borrower, and in any event exercised consistent  with past practice with  respect to the rental agreements of the Loan Parties) are eligible as the basis for the extension of  Revolving  Loans  and  the  issuance  of  Letters  of  Credit.   Without  limiting  the  Administrative  Agent’s Permitted Discretion provided herein, Eligible Rental Agreements shall not include any  rental agreement:               (a)   which is not subject to a first priority (subject to Permitted Encumbrances)                                         21  509265-2041-31349836.23  





 






         perfected security interest in favor of the Administrative Agent on behalf of the Secured        Parties;               (b)   which  is  subject  to  any  Lien  other  than  (i)  a  Lien  in  favor  of  the        Administrative Agent, (ii) a Lien in favor of the Term Loan Administrative Agent which        does not have priority over the Lien in favor of the Administrative Agent, (iii) a Lien in        favor of the administrative agent or trustee in respect of any Permitted Additional Junior        Lien Indebtedness which does not have priority over the Lien in favor of the Administrative        Agent and (iv) a Permitted Encumbrance;               (c)   with respect to which the remaining value of the inventory in respect thereof        has been written off the books of the Borrower or other applicable Loan Party or otherwise        designated as uncollectible;               (d)   with  respect  to  which  any  representation  or  warranty  contained  in  this        Agreement or in the Guarantee and Collateral Agreement is not true in any material respect;               (e)   which  does  not  arise  from  the  rent  of  goods  in  the  ordinary  course  of        business;               (f)   for which the goods subject to such rental agreement have not been shipped        to the applicable counterparty;               (g)   with respect to which the amounts due under such rental agreement remain        unpaid after the original due date for a period to be determined by the Administrative Agent        from time to time in a manner that is consistent with the period provided for in the most        recently delivered Collateral Monitoring Template or the most recent Rental Agreement        Portfolio appraisal ordered by the Administrative Agent;               (h)   with respect to which the counterparty thereof has (i) applied for, suffered,        or consented to  the appointment of any receiver, custodian, trustee, or liquidator of its        assets, (ii) had possession of all or a material part of its property taken by any receiver,        custodian, trustee or liquidator, (iii) filed, or had filed against it, any request or petition for        liquidation, reorganization, arrangement, adjustment of debts,  adjudication as bankrupt,        winding-up, or voluntary or involuntary case under any state or federal bankruptcy laws        (other  than  post-petition  accounts  payable  of  an  Account  Debtor  that  is  a  debtor-in-       possession under the Bankruptcy Code and reasonably acceptable to the Administrative        Agent), (iv) admitted in writing its inability, or is generally unable to, pay its debts as they        become due, (v) become insolvent, or (vi) ceased operation of its business;               (i)   with respect to which rental payments are owed in any currency other than        Dollars;               (j)   which is not governed by the law of the United States, any state thereof or        Puerto Rico;               (k)   which is not generated at a store located in the United States or Puerto Rico;                                         22  509265-2041-31349836.23  





 






               (l)   with respect to which the counterparty thereof is an Affiliate of any Loan        Party or any employee, officer or director of any Loan Party;               (m)   with respect to which the counterparty thereof is a Person to which any Loan        Party is indebted, but only to the extent of such indebtedness;               (n)   with respect to which the payments thereunder are subject to any asserted        counterclaim,  deduction,  defense,  setoff  or  dispute  but  only  to  the  extent  of  any  such        asserted counterclaim, deduction, defense, setoff or dispute;               (o)   with respect to which the Borrower or the applicable Loan Party has made        any agreement with the counterparty thereof for any reduction in any rental payments or        other amounts due thereunder, other than discounts and adjustments given in the ordinary        course of business that are consistent with the treatment provided for in the most recently        delivered Collateral Monitoring Template or the most recent Rental Agreement Portfolio        appraisal ordered by the Administrative Agent;               (p)   which does not comply in all material respects with the requirements of all        applicable laws and regulations, whether Federal, state or local;               (q)   which is for goods that have been rented pursuant to the terms of a written        contract or other written agreement that indicates or purports that any Person other than a        Loan Party has or has had an ownership interest in such goods, or which indicates any party        other than a Loan Party as payee or remittance party; or               (r)   with respect to which the Administrative Agent determines in its Permitted        Discretion (following (to the extent practicable) reasonable prior notice to, and consultation        with, the Borrower) the rental payments or other payments thereunder may not be paid by        reason of the counterparty’s inability to pay or which the Administrative Agent otherwise        determines is unacceptable in its Permitted Discretion.               Standards of eligibility  may be made more restrictive from  time to  time by the  Administrative Agent in its Permitted Discretion, following (to the extent practicable) reasonable  prior notice to, and consultation with, the Borrower, with any such changes to be effective four  days after delivery of notice thereof to the Borrower and the Lenders; provided that if consultation  with the Borrower and/or notice to the Borrower and the Lenders is not practicable or if failure to  implement any such change within a shorter time period would, in the good faith judgment of the  Administrative Agent, reasonably be expected to result in a Material Adverse Effect or materially  and adversely affect the Collateral (taken as a whole) or the rights of the Lenders under the Loan  Documents  (taken  as  a  whole),  such  change  may  be  implemented  within  a  shorter  time  as  determined by the Administrative Agent in its Permitted Discretion.  Prior to any rental agreement  that  is  acquired  in  a  Material  Transaction  becoming  an  “Eligible  Rental  Agreement”,  the  Administrative Agent shall have received (unless the Administrative Agent otherwise agrees in its  Permitted Discretion) a field examination and an appraisal in respect of such rental agreement, the  results of which are reasonably satisfactory to the Administrative Agent.               “Environmental Laws” means any and all foreign, Federal, state, local or municipal  laws,  rules,  orders,  regulations,  statutes,  ordinances,  codes,  decrees,  requirements  of  any                                         23  509265-2041-31349836.23  





 






   Governmental  Authority  or  other  Requirements  of  Law  (including  common  law)  regulating,  relating to or imposing liability or standards of conduct concerning protection of human health  insofar as involving exposure to harmful or deleterious substances or the environment, as now or  may at any time hereafter be in effect.               “Environmental  Permits”  means any  and  all  permits,  licenses,  approvals,  registrations, notifications or authorizations required under any Environmental Law.               “ERISA”  means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended from time to time, and the rules and regulations promulgated thereunder.               “ERISA Affiliate” means any trade or business (whether or not incorporated) that,  together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code  or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412  of the Code, is treated as a single employer under Section 414 of the Code.               “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of  ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which  the 30 day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as  defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing  pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver  of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or  any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination  of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan  administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a  trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates  of any liability with respect to the withdrawal or partial withdrawal of the Borrower or any of its  ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any  ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any  ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA  Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected  to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.               “EU  Bail-In  Legislation  Schedule”  means  the  EU  Bail-In  Legislation  Schedule  published by the Loan Market Association (or any successor Person), as in effect from time to  time.               “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by  reference to the Adjusted LIBO Rate.               “Event of Default” means any of the events specified in Section 8, provided that  any requirement for the giving of notice, the lapse of time, or both, has been satisfied.               “Exchange Act” means the Securities Exchange Act of 1934, as amended.               “Excluded Subsidiary” means (a) any Unrestricted Subsidiary, (b) any Immaterial  Subsidiary,  (c)  any  non-Wholly  Owned  Subsidiary,  (d)  any  Subsidiary  that  is  prohibited  or                                         24  509265-2041-31349836.23  





 






   restricted by applicable law, rule or regulation or by any contractual obligation existing on the  Closing Date or on the date such Subsidiary was acquired (so long as such contractual obligation  was not entered into in contemplation of such acquisition) from guaranteeing the Obligations or  which  would  require  a  governmental  (including  regulatory)  consent,  approval,  license  or  authorization to provide a guarantee unless such consent, approval, license or authorization has  been received, (e) any CFC or CFC Holding Company, (f) any Domestic Subsidiary of a Foreign  Subsidiary,  (g)  not-for-profit  Subsidiaries  and  captive  insurance  companies,  (h)  the  Insurance  Subsidiary  and  (i) any  Subsidiary  whose  provision  of  a  guarantee  would  have  a  cost  that  is  excessive in relation to the value afforded thereby as determined by the Administrative Agent in  its reasonable discretion.  Each Excluded Subsidiary as of the Closing Date is set forth on Schedule  4.15.               “Excluded Swap Obligation” means with respect to any Loan Party (a) any Swap  Obligation if, and to the extent that, and only for so long as, all or a portion of the guarantee of  such Loan Party of, or the grant by such Loan Party of a security interest to secure, as applicable,  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 to  constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the  regulations  thereunder,  at  the  time  the  guarantee  of  (or  grant  of  such  security  interest by,  as  applicable)  such  Loan  Party  becomes  or  would  become  effective  with  respect  to  such  Swap  Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such  Loan Party as  specified  in  any  agreement between the relevant  Loan Parties  and counterparty  applicable  to  such  Swap  Obligations,  and  agreed  by  the  Administrative  Agent.   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 security interest is or becomes illegal.               “Excluded Taxes” means any of the following Taxes imposed on or with respect to  a Credit Party or required to be withheld or deducted from a payment to a Credit Party, (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 a Credit Party 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  a  Lender  with  respect  to  an  applicable  interest  in  a  Loan  or  Commitment pursuant to a law in effect on the date on which (i) a Lender acquires such interest  in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section 2.22) or (ii) a Lender changes its lending office, except in each case to the extent that,  pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s  assignor  immediately  before  such  Lender  acquired  the  applicable  interest  in  a  Loan  or  Commitment  or  to  such  Lender  immediately  before  it  changed  its  lending  office,  (c)  Taxes  attributable to a Credit Party’s failure to comply with Section 2.19(f) and (d) any U.S. federal  withholding Taxes imposed under FATCA.               “Existing Indebtedness Refinancing” has the meaning set forth in Section 5.1(b)(ii).                                         25  509265-2041-31349836.23  





 






               “Existing Letters of Credit” means the letters of credit existing on the Closing Date  and identified on Schedule 3.1.               “Facility” means this Agreement and the Commitments and the Revolving Loans  made thereunder.               “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this  Agreement  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official  interpretations thereof, any 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.                 “Federal  Funds  Effective  Rate”  means,  for  any  day,  the  rate  calculated  by  the  NYFRB based on such day’s federal funds transactions by depositary institutions, as determined  in such manner as the NYFRB shall set forth on its public website from time to time, and published  on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided  that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall  be deemed to be zero for the purposes of this Agreement.               “Federal Reserve Board” means the Board of Governors of the Federal Reserve  System of the United States.               “Fee Payment Date” means (a) the first Business Day of each January, April, July  and October and (b) the last day of the Revolving Commitment Period.               “Finance Lease Obligations” means as to any Person, the obligations of such Person  to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)  real or personal property, or a combination thereof, which obligations are required to be classified  and accounted for as finance leases on a balance sheet of such Person under GAAP and, for the  purposes of this Agreement, the amount of such obligations at any time shall be the capitalized  amount thereof at such time determined in accordance with GAAP.               “Foreign  Benefit  Arrangement”  means  any  employee  benefit  arrangement  mandated by non-U.S. law that is maintained or contributed to by any Group Member, any ERISA  Affiliate or any other entity related to a Group Member on a controlled group basis.                “Foreign Plan” means each employee benefit plan (within the meaning of Section  3(3) of ERISA, whether or not such plan is subject to ERISA) that is not subject to US law and is  maintained or contributed to by any Group Member, or ERISA Affiliate or any other entity related  to a Group Member on a controlled group basis.               “Foreign Plan Event” means with respect to any Foreign Benefit Arrangement or  Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting  practices, any employer or employee contributions required by applicable law or by the terms of  such  Foreign  Benefit  Arrangement  or  Foreign  Plan;  (b)  the  failure  to  register  or  loss  of  good  standing  with  applicable  regulatory  authorities  of  any  such  Foreign  Benefit  Arrangement  or                                         26  509265-2041-31349836.23  





 






   Foreign Plan required to be registered; or (c) the failure of any Foreign Benefit Arrangement or  Foreign Plan to comply with any material provisions of applicable law and regulations or with the  material terms of such Foreign Benefit Arrangement or Foreign Plan.               “Foreign Subsidiary” means any Restricted Subsidiary of the Borrower that is not  a Domestic Subsidiary.               “Full Cash Dominion Period” means (a) each period when a Specified Event of  Default  shall  have  occurred  and  be  continuing  and  (b)  each  period  beginning  on  the  third  consecutive day on which Availability is less than the greater of (i) 12.5% of the Line Cap and (ii)  $37,500,000; provided that any such Full Cash Dominion Period commencing pursuant to clause  (b) shall end when and if Availability shall have been not less than (A) such specified level and  (B) $37,500,000 for 30 consecutive days each.               “Funding Office” means the office of the Administrative Agent specified in Section  10.2 or such other office as may be specified from time to time by the Administrative Agent as its  funding office by written notice to the Borrower and the Lenders.               “GAAP” means generally accepted accounting principles in the United States as in  effect from time to time.  In the event that any “Accounting Change” (as defined below) shall  occur and such change results in a change in the method of calculation of financial covenants,  standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to  enter  into  negotiations  to  promptly  amend  such  provisions  of  this  Agreement  so as  to  reflect  equitably  such  Accounting  Changes  with  the  desired  result  that  the  criteria  for  evaluating  the  Borrower’s results of operations and/or financial condition shall be the same after such Accounting  Changes as if such Accounting Changes had not been made.  Until such time as such an amendment  shall  have  been  executed  and  delivered  by  the  Borrower,  the  Administrative  Agent  and  the  Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to  be  calculated  or  construed  as  if  such  Accounting  Changes  had  not  occurred.   “Accounting  Changes” refers to changes in accounting principles required by the promulgation of any rule,  regulation,  pronouncement  or  opinion  by  the  Financial  Accounting  Standards  Board  or,  if  applicable, the SEC.               “Governmental Authority” means the government of the United States, any other  nation  or  any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government, any securities exchange and any self-regulatory organization (including the National  Association of Insurance Commissioners).                “Group Members” means the collective reference to the Borrower and its Restricted  Subsidiaries.               “Guarantee and Collateral Agreement” means the ABL Guarantee and Collateral  Agreement,  dated  as  of  the  Closing  Date,  executed  and  delivered  by  the  Borrower  and  each  Subsidiary Guarantor, substantially in the form of Exhibit D.                                          27  509265-2041-31349836.23  





 






               “Guarantee Obligation” means as to any Person (the “guaranteeing person”), any  obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing  Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate  obligation by another Person (including any bank under any letter of credit) that guarantees or in  effect  guarantees,  any  Indebtedness,  leases,  dividends  or  other  obligations  (the  “primary  obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or  indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to  purchase  any  such  primary  obligation  or  any  property  constituting  direct  or  indirect  security  therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary  obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise  to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities  or services primarily for the purpose of assuring the owner of any such primary obligation of the  ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to  assure or hold harmless the owner of any such primary obligation against loss in respect thereof;  provided, however,  that  the  term  Guarantee  Obligation  shall  not  include  endorsements  of  instruments for deposit or collection in the ordinary course of business or reasonable indemnity  obligations entered into in connection with any acquisition or disposition of assets.  The amount  of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an  amount equal to the stated or determinable amount of the primary obligation in respect of which  such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing  person  may  be  liable  pursuant  to  the  terms  of  the  instrument  embodying  such  Guarantee  Obligation, unless such primary obligation and the maximum amount for which such guaranteeing  person may be liable are not stated or determinable, in which case the amount of such Guarantee  Obligation  shall  be  such  guaranteeing  person’s  maximum  reasonably  anticipated  liability  in  respect thereof as determined by the Borrower in good faith.               “Immaterial Subsidiary” means  any Restricted Subsidiary that  is  not  a  Material  Subsidiary and that is designated by the Borrower in writing to the Administrative Agent as an  “Immaterial Subsidiary”; provided that if (i) as of the last day of the most recently ended fiscal  quarter of the Borrower for which financial statements have been delivered pursuant to Section  5.1(a) or (b), the aggregate tangible assets of Immaterial Subsidiaries, as of the last day of such  fiscal quarter, is greater than 5% of Consolidated Total Assets or (ii) the aggregate contribution of  Immaterial Subsidiaries to Consolidated EBITDA for the Applicable Reference Period is greater  than  5%  of  Consolidated  EBITDA  for  such  Applicable  Reference  Period,  then  one  or  more  Restricted  Subsidiaries  that  are  not  Material  Subsidiaries  shall  promptly  be  designated  by  the  Borrower in writing to the Administrative Agent as a “Material Subsidiary” until such excess has  been eliminated. Each Immaterial Subsidiary as of the Closing Date is set forth on Schedule 4.15.               “Impacted Interest Period” has the meaning set forth in the definition of LIBO Rate.               “Increased Facility Activation Notice” means a notice substantially in the form of  Exhibit I-1 or in such other form as is reasonably acceptable to the Administrative Agent.               “Increased Facility Closing Date” means any Business Day designated as such in  an Increased Facility Activation Notice.               “Incremental Commitments” has the meaning set forth in Section 2.24(a).                                         28  509265-2041-31349836.23  





 






               “Indebtedness”  means  of  any  Person  at  any  date,  without  duplication,  (a)  all  indebtedness  of  such  Person  for  borrowed  money,  (b)  all  obligations  of  such  Person  for  the  deferred purchase price of property or services, (c) all obligations of such Person evidenced by  notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under  any conditional sale or other title retention agreement with respect to property acquired by such  Person (even though the rights and remedies of the seller or lender under such agreement in the  event  of  default  are  limited  to  repossession  or  sale  of  such  property),  (e)  all  Finance  Lease  Obligations  of  such  Person,  (f)  all  obligations  of  such  Person,  contingent  or  otherwise,  as  an  account party or applicant under or in respect of acceptances, letters of credit, surety bonds or  similar arrangements, (g) the liquidation value of all Disqualified Capital Stock of such Person,  (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in  clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h)  above secured by (or for which the holder of such obligation has an existing right, contingent or  otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned  by such Person, whether or not such Person has assumed or become liable for the payment of such  obligation (but only to the extent of the lesser of (i) the amount of such Indebtedness and (ii) the  fair market value of such property), and (j) for the purposes of Section 8(e) only, all obligations of  such Person in respect of Swap Agreements; provided that Indebtedness shall not include (i) trade  payable and accrued expenses incurred in the ordinary course of business and not more than 120  days overdue, (ii) ordinary course intercompany liabilities having a term not exceeding 365 days  (inclusive  of  any roll-over  or  extension  of  terms)  or  any  other  ordinary  course  intercompany  liabilities not constituting Specified Indebtedness, (iii) prepaid or deferred revenue arising in the  ordinary  course  of  business,  (iv)  purchase  price  holdbacks  arising  in  the  ordinary  course  of  business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations  of the seller of such assets, (v) deferred compensation payable to employees, officers and directors  and (vi) any earn-out obligation until such obligation becomes a liability on the balance sheet of  such  Person  in  accordance  with  GAAP.   The  Indebtedness  of  any  Person  shall  include  the  Indebtedness  of any other entity (including any  partnership in  which such Person is  a general  partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest  in  or  other  relationship  with  such  entity,  except  to  the  extent  the  terms  of  such  Indebtedness  expressly provide that such Person is not liable therefor.  Any Indebtedness for which proceeds  have been escrowed or otherwise deposited to repay, defease, redeem or satisfy and discharge such  Indebtedness shall not be deemed outstanding.               “Indemnified Liabilities” has the meaning set forth in Section 10.5.               “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or  with respect to any payment made by or on account of any obligation of any Loan Party under any  Loan Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes.               “Indemnitee” has the meaning set forth in Section 10.5(d).               “Initiatives” has the meaning set forth in the definition of Consolidated EBITDA.               “Insolvent” means with respect to any Multiemployer Plan, the condition that such  plan is insolvent within the meaning of Section 4245 of ERISA.                                          29  509265-2041-31349836.23  





 






               “Insurance Subsidiary” means Legacy Insurance Co., Ltd., a Bermuda company  and a Wholly Owned Subsidiary of the Borrower formed for the sole purpose of writing insurance  only for the risks of the Borrower and its Subsidiaries.               “Intellectual Property” has the meaning set forth in the Guarantee and Collateral  Agreement.               “Intercreditor  Agreement”  means  the  ABL/Term  Loan  Intercreditor  Agreement,  dated as of the Closing Date, among the Borrower, the Subsidiary Guarantors, the Administrative  Agent  and  the  Term  Loan  Administrative  Agent,  and  any  other  intercreditor  agreement  substantially in the form of Exhibit K, in each case, as may be amended, modified or supplemented  from time to time.                “Interest Election Request” means a request by the Borrower to convert or continue  a Revolving Borrowing in accordance with Section 2.12 and the definition of “Interest Period”,  which  shall  be  substantially  in  the  form  of  Exhibit  B  or  any  other  form  approved  by  the  Administrative Agent.               “Interest  Payment  Date”  means  (a)  as  to  any  ABR  Loan,  the  first  day  of  each  January, April, July and October to occur while such Loan is outstanding and the final maturity  date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less,  the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer  than three months, each day that is three months, or a whole multiple thereof, after the first day of  such Interest Period and the last day of such Interest Period and (d) as to any Loan, the date of any  repayment or prepayment made in respect thereof.               “Interest  Period”  means  as  to  any  Eurodollar  Loan,  (a)  initially,  the  period  commencing  on  the  borrowing  or  conversion  date,  as  the  case  may  be,  with  respect  to  such  Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower  in its Borrowing Request or Interest Election Request, as the case may be, given with respect  thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest  Period applicable to such Eurodollar Loan and ending one, two, three or six months thereafter, as  selected by the Borrower by irrevocable notice in an Interest Election Request submitted to the  Administrative Agent not later than 12:00 Noon, New York City time, on the date that is three  Business Days prior to the last day of the then current Interest Period with respect thereto; provided  that, all of the foregoing provisions relating to Interest Periods are subject to the following:               (i)   if any Interest Period would otherwise end on a day that is not a Business        Day, such Interest Period shall be extended to the next succeeding Business Day unless the        result of such extension would be to carry such Interest Period into another calendar month        in which event such Interest Period shall end on the immediately preceding Business Day;               (ii)  the Borrower may not select an Interest Period that would extend beyond        the Revolving Termination Date; and               (iii) any Interest Period that begins on the last Business Day of a calendar month        (or on a day for which there is no numerically corresponding day in the calendar month at        the end of such Interest Period) shall end on the last Business Day of the last calendar                                         30  509265-2041-31349836.23  





 






      month of such Interest Period.              “Interpolated Rate” means, at any time, for any Interest Period, the rate per annum  (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the  Administrative Agent (which determination shall be conclusive and binding absent manifest error)  to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen  Rate for the longest period for which the LIBO Screen Rate is available that is shorter than the  Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which that LIBO  Screen Rate is available that exceeds the Impacted Interest Period, in each case, as of 11:00 a.m.,  London time, two Business Days prior to the commencement of the applicable Interest Period;  provided that if the Interpolated Rate as so determined would be less than zero, such rate shall be  deemed to be zero for the purposes of calculating such rate. When determining the rate for a period  which is less than the shortest period for which the LIBO Screen Rate is available, the LIBO Screen  Rate for purposes of clause (a) above shall be deemed to be the overnight rate for Dollars  determined by the Administrative Agent from such service as the Administrative Agent may select in its reasonable discretion.              “Inventory” has the meaning set forth in the Guarantee and Collateral Agreement.              “Inventory Held for Rent” means Inventory of a Loan Party which is being held for  rent.               “Investments” has the meaning set forth in Section 7.7.              “IRS” means the United States Internal Revenue Service.               “Issuing Lender” means each of (a) JPMCB, (b) Citizens Bank, N.A., (c) BBVA  USA and (d) any other Revolving Lender approved by the Administrative Agent and the Borrower  that has agreed in its sole discretion to act as an “Issuing Lender” hereunder, or any of their  respective affiliates, in each case in its capacity as issuer of any Letter of Credit.  Each reference  herein to “the Issuing Lender” shall be deemed to be a reference to the relevant Issuing Lender.   Each Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued  by any Affiliate of such Issuing Lender, in which case the term “Issuing Lender” shall include any  such Affiliate with respect to Letters of Credit issued by such Affiliate.              “Joint Venture” means a joint venture, partnership or other similar arrangement  entered into by the Borrower or any Restricted Subsidiary, whether in corporate, partnership or  other legal form; provided that in no event shall any Subsidiary be considered to be a Joint Venture.              “JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in  its individual capacity, and its successors.              “Junior Indebtedness” means (a) any Subordinated Indebtedness and (b) any  Specified Indebtedness (other than the Term Loans, any Pari Passu Secured Indebtedness and any  Permitted Refinancing Indebtedness in respect thereof) of any Group Member that is secured by a  Lien on the Collateral that is junior to the Lien on the Collateral securing the Obligations.                                         31 509265-2041-31349836.23 





 






            “Latest Maturity Date” means at any date of determination, the latest scheduled  maturity date applicable to any Loan hereunder at such time.              “L/C Commitment” means, subject to Section 3.1(c), (a) if the Specified Letter of  Credit is outstanding, (i) as to JPMCB, $80,000,000, (ii) as to Citizens Bank, N.A., $39,000,000  and (iii) as to BBVA USA, $31,000,000 and (b) if the Specified Letter of Credit is not outstanding,  (i) as to JPMCB, $70,000,000, (ii) as to Citizens Bank, N.A., $45,000,000 and (iii) as to BBVA  USA, $35,000,000, as each of the foregoing amounts may be changed from time to time by the  mutual agreement of the Administrative Agent and the Borrower.              “L/C Disbursement” means a payment or disbursement made by an Issuing Lender  pursuant to a Letter of Credit.                “L/C Exposure” means at any time, the total L/C Obligations.  The L/C Exposure  of any Revolving Lender at any time shall be its Revolving Percentage of the total L/C Exposure  at such time.  For all purposes of this Agreement, if on any date of determination a Letter of Credit  has expired by its terms but any amount may still be drawn thereunder by reason of the operation  of Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International  Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at  the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International  Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at  the applicable time) or similar terms of the Letter of Credit itself, or if compliant documents have  been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding” and  “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower  and each Lender shall remain in full force and effect until the Issuing Lender and the Lenders shall  have no further obligations to make any payments or disbursements under any circumstances with  respect to any Letter of Credit.              “L/C Obligations” means at any time, an amount equal to the sum of (a) the  aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b)  the aggregate amount of drawings under Letters of Credit that have not then been reimbursed  pursuant to Section 3.5.              “L/C Participants” means the collective reference to all the Revolving Lenders  other than the Issuing Lender.              “LCT Election” has the meaning set forth in Section 1.7.              “LCT Test Date” has the meaning set forth in Section 1.7.              “Lender Parent” means with respect to any Lender, any Person as to which such  Lender is, directly or indirectly, a Subsidiary.              “Lenders” means the Persons listed on Schedule 1.1 and any other Person that shall  have become a party hereto pursuant to an Assignment and Assumption or otherwise, other than  any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or  otherwise.  Unless the context otherwise requires, the term “Lenders” includes the Issuing Lenders.                                        32 509265-2041-31349836.23 





 






               “Letters of Credit” has the meaning set forth in Section 3.1.               “LIBO Rate” means,  with respect to  any Eurodollar Borrowing for any Interest  Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior  to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be  available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate  shall be the Interpolated Rate.               “LIBO Screen Rate”  means, for any day and time, with respect to any Eurodollar  Borrowing  for  any  Interest  Period,  the  London  interbank  offered  rate  as  administered  by  ICE  Benchmark Administration (or any other Person that takes over the administration of such rate)  for U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and  time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event  such rate does not appear on a Reuters page or screen, on any successor or substitute page on such  screen that displays such rate, or on the appropriate page of such other information service that  publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such  rate shall be deemed to zero for the purposes of this Agreement.               “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance,  lien  (statutory  or  other),  charge  or  other  security  interest  or any  preference, priority or other security agreement or preferential arrangement of any kind or nature  whatsoever (including any conditional sale or other title retention agreement and any finance lease  having substantially the same economic effect as any of the foregoing); provided that a “Lien” as  defined herein shall not include any license, sublicense or similar right with respect to Intellectual  Property.               “Limited  Condition  Transaction”  means  any  Investment  that  the  Borrower  or  a  Restricted Subsidiary is contractually committed to consummate (it being understood that such  commitment may be subject to conditions precedent, which conditions precedent may be amended,  satisfied or waived in accordance with the applicable agreement) and whose consummation is not  conditioned on the availability of, or on obtaining, third party financing (it being understood that  a “marketing period” or similar concept is not a financing condition).               “Line  Cap”  means  at  any  time,  an  amount  equal  to  the  lesser  of  (a)  the  Total  Commitments and (b) the Borrowing Base.               “Liquidity” means at any time, an amount equal to (a) Availability at such time plus  (b) Unrestricted Cash at such time.               “Loan”  means  the  loans  made  by  the  Lenders  to  the  Borrower  pursuant  to  this  Agreement, including Protective Advances.               “Loan  Documents”  means  this  Agreement,  the  Security  Documents,  the  Intercreditor Agreement, the Notes and any amendment, restatement, amendment and restatement,  waiver, supplement or other modification to any of the foregoing.               “Loan Parties” means the Borrower and the Subsidiary Guarantors.                                         33  509265-2041-31349836.23  





 






               “Margin  Stock”  means  margin  stock  within  the  meaning  of  Regulations T, U  and X, as applicable.               “Material  Acquisition”  means  any  acquisition  of  property  or  series  of  related  acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating  unit of a business or constitutes all or substantially all of the common stock of a Person and (b)  involves the payment of consideration by the Group Members in excess of $55,000,000.               “Material  Adverse  Effect”  means  a  material  adverse  effect  on  (a)  the  business,  property, operations or financial condition of the Borrower and its Restricted Subsidiaries taken as  a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their payment obligations  under the Loan Documents to which they are a party or (c) the validity or enforceability of this  Agreement or any of the other Loan Documents or the rights or remedies of the Administrative  Agent or the Lenders under the Loan Documents, taken as a whole.               “Material  Disposition”  means  any  Disposition  of  property  or  series  of  related  Dispositions  of  property  that  yields  gross  proceeds  to  the  Group  Members  in  excess  of  $55,000,000.               “Material  Indebtedness”  means  Indebtedness  (other  than  the  Loans)  or  Swap  Obligations of any one or more of the Borrower and the Restricted Subsidiaries in an aggregate  principal amount of $75,000,000 or more; provided that any Indebtedness outstanding under the  Term  Loan  Credit  Agreement  shall  be  deemed  to  be  Material  Indebtedness.   For  purposes  of  determining Material Indebtedness, the “principal amount” of any Swap Obligation at any time  shall  be  the  maximum  aggregate  amount  (giving  effect  to  any  netting  agreements)  that  the  Borrower and/or any applicable Restricted Subsidiary would be required to pay if the applicable  Swap Agreement were terminated at such time.               “Material  Subsidiary”  means,  as  of  any  date  of  determination,  each  Restricted  Subsidiary (a) with total assets (including the value of Capital Stock of its subsidiaries) on such  date of determination greater than 5.0% of Consolidated Total Assets, (b) whose contribution to  Consolidated EBITDA for the Applicable Reference Period exceeds 5% of Consolidated EBITDA  for the Applicable Reference Period or (c) that is designated as a “Material Subsidiary” pursuant  to the definition of Immaterial Subsidiary.               “Material Transaction” means any acquisition or series of related acquisitions in  which a Loan Party acquires assets that, if included in the Borrowing Base, would increase the  Borrowing Base by an amount in excess of $15,000,000.               “Materials of Environmental Concern” means any gasoline or petroleum (including  crude oil or any fraction thereof) or petroleum products, asbestos, polychlorinated biphenyls, urea- formaldehyde  insulation,  radioactivity,  and  any  other  substances,  materials  or  wastes,  that  are  regulated pursuant to or that could give rise to liability under any Environmental Law.               “Maximum  Term  Loan  Incremental  Amount”  means  an  amount  represented  by  Incremental  Term  Loans  (as  defined  in  the  Term  Loan  Credit  Agreement)  to  be  established  pursuant to Section 2.24 of the Term Loan Credit Agreement that would not, immediately after  giving effect to the establishment thereof (excluding from Unrestricted Cash in making such pro                                         34  509265-2041-31349836.23  





 






   forma calculation the Net Cash Proceeds of such Incremental Term Loans), cause the Consolidated  Secured Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma Basis as  of the date of incurrence of such Indebtedness, to exceed 2.00 to 1.00; provided that, with respect  to Term Loan Incremental Equivalent Debt established pursuant to Section 7.2(t), in lieu of the  Consolidated Secured Leverage Ratio test applicable to Incremental Term Loans, such test with  respect  to  Term  Loan  Incremental  Equivalent  Debt  (which  in  each  case  shall  be  calculated  excluding from Unrestricted Cash in making such pro forma calculation the Net Cash Proceeds of  such Term Loan Incremental Equivalent Debt) shall instead be: (1) in the case of such Indebtedness  secured by Liens on the Collateral on a pari passu basis with, or on a junior basis to, the Liens on  the Collateral securing the Term Loans, a Consolidated Secured Leverage Ratio not to exceed 2.00  to 1.00 or (2) in the case of such unsecured Indebtedness, a Consolidated Leverage Ratio not to  exceed 2.50 to 1.00.               “Merchants Preferred Acquisition” means the acquisition by the Group Members  of substantially all of the assets of C/C Financial Corp. dba Merchants Preferred.               “Mexico  Operations”  means  the  operations  in  Mexico  of  the  Borrower  and  its  Subsidiaries.               “Moody’s” means Moody’s Investors Service, Inc.               “Multiemployer  Plan”  means  a  multiemployer  plan  as  defined  in  Section  4001(a)(3) of ERISA to which any Group Member or any ERISA Affiliate (i) makes or is obligated  to make contributions, (ii) during the preceding five plan years, has made or been obligated to  make contributions or (iii) has any actual or contingent liability.               “Multiple  Employer  Plan”  means  a  Plan  which  has  two  or  more contributing  sponsors (including any Group Member or any ERISA Affiliate) at least two of whom are not  under common control, as such a Plan is described in Section 4064 of ERISA.               “Net  Cash  Proceeds”  means  in  connection  with  any  issuance  or  sale  of  Capital  Stock  or  any  incurrence  of  Indebtedness,  the  cash  proceeds  received  from  such  issuance  or  incurrence, net of attorneys’ fees, investment banking fees, auditor fees, printer fees, SEC filing  fees,  brokerage  fees,  accountants’  fees,  underwriting  discounts  and  commissions  and  other  customary fees and expenses actually incurred in connection therewith.               “Net Orderly Liquidation Value” means (a) with respect to Inventory of any Person,  the (i) net orderly liquidation value percentage based on the amount expected to be realized at an  orderly,  negotiated  sale  held  within  a  reasonable  time  period  from  the  most  recent  Inventory  appraisal ordered by the Administrative Agent multiplied by (ii) the book value of such Inventory  and (b) with respect to Eligible Rental Agreements of any Person, the net orderly liquidation value  expected to be realized at an orderly, negotiated sale held within a reasonable time period from the  most  recent  Rental  Agreement  Portfolio  appraisal  ordered  by  the  Administrative  Agent  or  Collateral Monitoring Template.               “New Lender” has the meaning set forth in Section 2.24(b).               “New Lender Supplement” has the meaning set forth in Section 2.24(b).                                         35  509265-2041-31349836.23  





 






               “Non-U.S. Lender” means a Lender that is not a U.S. Person.               “Not Otherwise Applied” means in respect of any amount, such amount has not  previously been (and is not currently being) applied to any other use or transaction.                “Notes” means the collective reference to any promissory note evidencing Loans.               “NYFRB” means the Federal Reserve Bank of New York.               “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective  Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for  any day that is not a Business Day, for the immediately preceding Business Day); provided that if  none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means  the  rate  for  a  federal  funds  transaction  quoted  at  11:00  a.m.  on  such  day  received  by  the  Administrative Agent from a federal funds broker of recognized standing selected by it; provided,  further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be  deemed to be zero for purposes of this Agreement.               “Obligations”  means  collectively,  (a)  the  unpaid  principal  of  and interest  on  (including interest accruing after the maturity of the Loans and Reimbursement Obligations and  interest  accruing  after  the  filing  of  any  petition  in  bankruptcy,  or  the  commencement  of  any  insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for  post-filing or post-petition interest is allowed in such proceeding) the Loans and Reimbursement  Obligations, all other obligations and liabilities of the Borrower to the Administrative Agent or to  any  Lender,  whether  direct  or  indirect,  absolute  or  contingent,  due  or  to  become  due,  or  now  existing or hereafter incurred, which arise under, out of, or in connection with, this Agreement,  any other Loan Document, the Letters of Credit or any other document made, delivered or given  in  connection  herewith  or  therewith,  whether  on  account  of  principal,  interest,  reimbursement  obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of  counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower  pursuant  hereto)  or  otherwise,  (b)  all  Banking  Services  Obligations  and  (c)  all  Secured  Swap  Obligations.               “Organizational  Documents”  means  (a)  with  respect  to  any  corporation,  the  certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive  documents  with  respect  to  any  non-U.S.  jurisdiction),  (b)  with  respect  to  any  limited  liability  company, the certificate or articles of formation or organization and operating agreement, and (c)  with respect to any partnership, joint venture, trust or other form of business entity, the partnership,  joint venture or other applicable agreement of formation or organization and, if applicable, any  agreement, instrument, filing or notice with respect thereto filed in connection with its formation  or organization with the applicable Governmental Authority in the jurisdiction of its formation or  organization and, if applicable, any certificate or articles of formation  or organization of such  entity.               “Other Connection Taxes” means with respect to any Credit Party, Taxes imposed  as  a  result  of  a  present  or  former  connection  between  such  Credit  Party  and  the  jurisdiction  imposing  such  Tax  (other  than  connections  arising  from  such  Credit  Party  having  executed,                                         36  509265-2041-31349836.23  





 






   delivered, become a party to, performed its obligations under, received payments under, received  or perfected a security interest under, engaged in any other transaction pursuant to, or enforced,  any Loan Document, or sold or assigned an interest in any Loan or Loan Document).               “Other Taxes” means all present or future stamp, court, or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 2.22).               “Overage” has the meaning set forth in the definition of Eligible Installment Sales  Accounts.               “Overnight Bank Funding Rate” means, for any day, the rate comprised of both  overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of  depository institutions, as such composite rate shall be determined by the NYFRB as set forth on  its public website from time to time, and published on the next succeeding Business Day by the  NYFRB as an overnight bank funding rate.               “Pari Passu Secured Indebtedness” means Term Loan Refinancing Indebtedness  (as defined in the Term Loan Credit Agreement) and Term Loan Incremental Equivalent Debt (and  any Permitted Refinancing Indebtedness in respect of the foregoing), in each case that is secured  by Liens on the Collateral that are pari passu to the Liens on Collateral securing the Term Loans.               “Participant” has the meaning set forth in Section 10.6(c).               “Participant Register” has the meaning set forth in Section 10.6(c).               “Patriot Act” has the meaning set forth in Section 10.17.               “Payment Conditions” means (a) no Specified Event of Default has occurred and is  continuing and (b) at all times during the Pro Forma Period (i) after giving effect to the proposed  event as if it occurred on the first day of the Pro Forma Period, Liquidity is greater than the greater  of (A) 25% of the Line Cap and (B) $55,000,000 or (ii) after giving effect to the proposed event  as if it occurred on the first day of the Pro Forma Period, (A) Liquidity is greater than the greater  of (1) 20% of the Line Cap and (2) $45,000,000, (B) the Consolidated Fixed Charge Coverage  Ratio for the last four (4) fiscal quarters is greater than 1.10:1.0 and (C) the Consolidated Leverage  Ratio for the last four (4) fiscal quarters is less than 3.50:1.00.               “PBGC”  means  the  Pension  Benefit  Guaranty  Corporation  established  under  Section 4002 of ERISA and any successor entity performing similar functions.               “Pension Plan” means any employee benefit plan (including a Multiple Employer  Plan, but not including a Multiemployer Plan) that is subject to Title IV of ERISA, Section 412 of  the Code or Section 302 of ERISA (i) which is or was sponsored, maintained or contributed to by,  or required to be contributed to by, any Group Member or any ERISA Affiliate or (ii) with respect  to which any Group Member or any ERISA Affiliate has any actual or contingent liability.                                         37  509265-2041-31349836.23  





 






            “Permitted  Acquisition”  means  the  purchase  or  other  acquisition  (including  by  merger, consolidation or amalgamation) by the Borrower or any Restricted Subsidiary of all or a  majority of the Capital Stock of, or all or substantially all of the property of, any Person, or of any  business or division of any Person; provided that with respect to each purchase or other acquisition  (i) after giving effect thereto, the Borrower and its Restricted Subsidiaries are in compliance with  Section 7.15, (ii) immediately before and immediately after giving effect on a pro forma basis to  any such purchase or other acquisition, no Event of Default shall have occurred and be continuing  and (iii) any such newly created or acquired Subsidiary shall, to the extent required by Section  6.10, comply with the requirements of Section 6.10.               “Permitted Discretion” means in respect of the adjustment of eligibility criteria and  (without duplication) reserves with respect to the Borrowing Base collateral, a determination made  in  good faith and in  the exercise of reasonable (from  the perspective of a secured asset-based  lender) business judgment following (to the extent practicable) reasonable prior notice to,  and  consultation with, the Borrower and in accordance with customary business practices for asset- based transactions.               “Permitted Encumbrances” means Liens permitted pursuant to Section 7.3(a), (b),  (c),  (d)  or  (n); provided that  the  term  “Permitted Encumbrances”  shall  not  include  any  Lien  securing Specified Indebtedness.                “Permitted Liens” means Liens permitted pursuant to Section 7.3.               “Permitted Refinancing Indebtedness” means with respect to any Indebtedness of  any Person (the “Original Indebtedness”), any modification, refinancing, refunding, replacement,  renewal or extension of such Indebtedness, in whole or in part; provided, that (i) no Person that is  not an obligor with respect to the Original Indebtedness shall be an obligor with respect to such  Permitted Refinancing Indebtedness, (ii) the final maturity and weighted average life to maturity  of such Indebtedness shall not be shortened as a result of such modification, refinancing, refunding,  replacement, renewal or extension, (iii) in the case of any modification, refinancing, refunding,  replacement,  renewal  or  extension  of  Indebtedness  incurred  pursuant  to  Section  7.2(b),  the  mandatory  prepayment  and  redemption  terms,  covenants  and  events  of  default  of  such  Indebtedness  are  either  (x)  not  materially  more  favorable  (taken  as  a  whole,  as  conclusively  determined by the Borrower in good faith) to the lenders providing such Indebtedness than those  terms (taken as a whole) applicable to the Original Indebtedness (except to the extent such terms  apply solely to any period after the Latest Maturity Date or applied for the benefit of the Loans  then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance,  as conclusively determined by the Borrower in good faith, (iv) (x) in the case of any Original  Indebtedness consisting of a revolving credit facility, the committed amount does not exceed the  committed amount in respect of the Original Indebtedness and (y) in each case (including in respect  of a revolving credit facility), the principal amount (or accreted value, if applicable) thereof does  not exceed the principal amount (or accreted value, if applicable) of the Original Indebtedness,  except in each case by an amount (such amount, the “Additional Permitted Amount”) equal to  unpaid accrued interest and premium (including make-whole premiums, prepayment premiums  and amounts required to be paid in connection with defeasance and satisfaction and discharge)  thereon  at  such  time  plus  reasonable  fees  and  expenses  incurred  in connection  with  such  modification, refinancing, refunding, replacement, renewal or extension (including upfront fees                                         38  509265-2041-31349836.23 





 






   and original issue discount), (v) for the avoidance of doubt, the Original Indebtedness is paid down  (or, with respect to revolving credit facilities, commitments in respect thereof are reduced (together  with,  if  applicable,  payments  of  principal))  on  a  dollar-for-dollar  basis  by  such  Permitted  Refinancing Indebtedness (other than by the Additional Permitted Amount), (vi) if the Original  Indebtedness  shall  have  been  subordinated  to  the  Obligations,  such  Permitted  Refinancing  Indebtedness  shall  also  be  subordinated  to  the  Obligations  on  terms  not  less  favorable  in  any  material respect to the Lenders and (vii) such Permitted Refinancing Indebtedness shall not be  secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or  would have been required to secure such Original Indebtedness pursuant to the terms thereof) or,  in the event Liens securing such Original Indebtedness shall have been contractually subordinated  to  any  Lien  securing  the  Obligations,  by  any  Lien  that  shall  not  have  been  contractually  subordinated to at least the same extent.                “Permitted Unsecured Indebtedness” means Indebtedness of the Borrower or any  of its Subsidiaries (a) that is not (and any Guarantee Obligations thereof by any Group Member  are not) secured by any collateral (including the Collateral), (b) that does not mature earlier than  (or require scheduled amortization or mandatory commitment reductions in excess of 1.00% per  annum prior to) the date that is 91 days after the Latest Maturity Date then in effect at the time of  incurrence thereof, (c) that contains mandatory prepayment and redemption terms, covenants and  events of default that are either (x) customary for similar Indebtedness in light of then-prevailing  market conditions (it being understood and agreed that such Indebtedness shall include financial  maintenance covenants only to the extent any such financial maintenance covenant is (i) applicable  only to periods after the Latest Maturity Date then in effect at the time of incurrence thereof or (ii)  included in or added to the Loan Documents for the benefit of the Lenders) or (y) when taken as a  whole (other than interest rates, rate floors, fees and optional prepayment or redemption terms),  are not materially more favorable to the lenders or investors providing such Permitted Unsecured  Indebtedness, as the case may be, than those set forth in the Loan Documents are with respect to  the Lenders (other than covenants or other provisions applicable only to periods after the Latest  Maturity Date then in effect at the time of incurrence thereof or that are included in or added to  the Loan Documents for the benefit of the Lenders), in the case of each of clauses (x) and (y), as  conclusively  determined by the  Borrower in  good faith, and (e) that is  not  guaranteed by any  Person other than on an unsecured basis by Group Members.               “Person” means an individual, partnership, corporation, limited liability company,  business trust, joint stock company, trust, unincorporated association, joint venture, Governmental  Authority or other entity of whatever nature.               “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)  subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,  and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,  would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)  of ERISA.               “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” has the meaning set forth in Section 10.15.                                         39  509265-2041-31349836.23  





 






               “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as  the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest  per annum interest rate published by the Federal Reserve Board in  Federal Reserve Statistical  Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no  longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent)  or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Each  change  in  the  Prime  Rate  shall  be  effective  from  and  including  the  date  such  change  is  publicly announced or quoted as being effective.               “Pro Forma Basis” means, with respect to the calculation of any test or covenant  hereunder, such test or covenant being calculated after giving effect to (a) any designation of a  Restricted  Subsidiary  as  an  Unrestricted  Subsidiary,  (b)  any  designation  of  an  Unrestricted  Subsidiary as a Restricted Subsidiary, (c) any Material Acquisition, (d) any Material Disposition,  and (e) any assumption, incurrence, repayment or other Disposition of Indebtedness (all of the  foregoing, “Applicable Transactions”) using, for purposes of determining such compliance, the  historical financial statements of all entities or assets so designated, acquired or sold (to the extent  available)  and  the  consolidated  financial  statements  of  the  Borrower  and  its  Restricted  Subsidiaries, which shall be reformulated as if all Applicable Transactions during the Applicable  Reference Period, or subsequent to the Applicable Reference Period and on or prior to the date of  such calculation, had been consummated at the beginning of such period (and shall include, with  respect  to  any  Material  Acquisition  or  Material  Disposition,  any  adjustments  calculated  in  accordance with (and subject to the requirements and limitations of) clause (i) of the definition of  “Consolidated EBITDA”); provided that with respect to any assumption, incurrence, repayment  or other Disposition of Indebtedness (i) if such Indebtedness has a floating rate of interest, the  interest expense on such Indebtedness will be calculated as if the rate in effect on the date of  calculation  had  been  the  applicable  rate  for  the  entire  period  (taking  into  account  any  Swap  Obligations applicable to such Indebtedness if such Swap Obligation has a remaining term as at  the date of calculation in excess of 12 months), (ii) interest on Finance Lease Obligations shall be  deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest  implicit  in  such  Finance  Lease  Obligation  in  accordance  with  GAAP,  (iii)  interest  on  any  Indebtedness under a revolving credit facility shall be based upon the average daily balance of  such  Indebtedness  during  the  applicable period  and  (iv)  interest  on  Indebtedness  that  may  be  optionally  determined  at  an  interest  rate  based  upon  a  factor  of  a  prime  or  similar  rate,  a  eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the  rate actually chosen, or, if none, then based upon such optional rate as the Borrower may designate.  For the avoidance of doubt, in calculating Consolidated Fixed Charges, (x) the Consolidated Fixed  Charges  attributable  to  any  Indebtedness  assumed  or  incurred  in  connection  with  a  Material  Acquisition consummated during the Applicable Reference Period or subsequent to the Applicable  Reference Period and on or prior to the date of such calculation shall be included and (y) the  Consolidated  Fixed  Charges  attributable  to  any Indebtedness  repaid  or  otherwise  Disposed  of  pursuant  to  a  Material  Disposition  consummated  during  the  Applicable  Reference  Period  or  subsequent to the Applicable Reference Period and on or prior to the date of such calculation shall  be excluded.               “Pro Forma Financial Statements” has the meaning set forth in Section 4.1(a).                                          40  509265-2041-31349836.23  





 






               “Pro Forma Period” means with respect to any Restricted Payment, Investment or  prepayment  of  Indebtedness  (any  of  the  foregoing,  a  “Specified  Event”),  the  period  (a)  commencing 30 days prior to the date such Specified Event is proposed by the Borrower to occur  and (b) ending on the date such Specified Event is proposed by the Borrower to occur.                “Prohibited Transaction” has the meaning set forth in Section 406 of ERISA and  Section 4975(c) of the Code.               “Projections” has the meaning set forth in Section 6.2(c).               “Protective  Advance  Exposure”  means  at  any  time,  the  sum  of  the  aggregate  amount of all outstanding Protective Advances at such time.  The Protective Advance Exposure of  any Revolving Lender at any time shall be its Revolving Percentage of the total Protective Advance  Exposure at such time.               “Protective Advances” has the meaning set forth in Section 2.3(a).                “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.               “Public-Sider” means a Lender whose representatives may trade in securities of the  Borrower or any of its Subsidiaries while in possession of the financial statements provided by the  Borrower under the terms of this Agreement.               “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 10.20.               “Qualified  Capital  Stock”  means  Capital  Stock  of  the  Borrower  other  than  Disqualified Capital Stock.               “Recent Rental Proceeds”: as of any day, the aggregate cash proceeds from rental  payments and fees (excluding sales tax) received by the Loan Parties pursuant to Eligible Rental  Agreements during the three calendar months most recently ended on or prior to such day.               “Reference Period” means each period of four consecutive fiscal quarters of the  Borrower.               “Register” has the meaning set forth in Section 10.6(b)(iv).               “Regulation D” means Regulation D of the Federal Reserve Board, as in effect from  time to time and all official rulings and interpretations thereunder or thereof.               “Regulation T” means Regulation T of the Federal Reserve Board, as in effect from  time to time and all official rulings and interpretations thereunder or thereof.                                          41  509265-2041-31349836.23  





 






               “Regulation U” means Regulation U of the Board, as in effect from time to time  and all official rulings and interpretations thereunder or thereof.               “Regulation X” means Regulation X of the Federal Reserve Board, as in effect from  time to time and all official rulings and interpretations thereunder or thereof.               “Reimbursement Obligation” means the obligation of the Borrower to reimburse  the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.               “Related Parties” with respect to any specified Person, such Person’s Affiliates and  the respective directors, officers, employees, agents and advisors of such Person and such Person’s  Affiliates.               “Rent  Reserve” means with  respect  to  any  store, warehouse distribution center,  regional distribution center or depot where any Inventory subject to Liens arising by operation of  law is located, a reserve equal to three months’ rent at such store, warehouse distribution center,  regional distribution center or depot.               “Rental Agreement Portfolio” means, at any time, the Eligible Rental Agreements  of the Loan Parties.               “Report” means reports prepared by the Administrative Agent or another Person  showing the results of appraisals, field examinations or audits pertaining to the assets of the Loan  Parties from information furnished by or on behalf of the Borrower, after the Administrative Agent  has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed  to the Lenders by the Administrative Agent.               “Reported Banking Services Obligations” means Banking Services Obligations of  any Loan Party owing to one or more Lenders or their respective Affiliates; provided that, as of  any date of determination, such obligations shall constitute Reported Banking Services Obligations  solely to the extent that the Lender party thereto or its Affiliate (other than JPMCB) shall have  reported the amount of such outstanding obligations to the Administrative Agent as of the last day  of the previous fiscal quarter on or prior to the date that is 15 days following the end of such fiscal  quarter (or (x) prior to the date that is 15 days following the end of the first fiscal quarter following  the Closing Date, within 15 days of the Closing Date such Lender or Affiliate shall have reported  the amount of such outstanding obligations as of the Closing Date, and (y) within 10 days of any  request therefor by the Administrative Agent, such Lender or Affiliate shall have reported the  amount  of  such  outstanding  obligations  as  of  any  other  date  reasonably  requested  by  the  Administrative Agent).                “Reported Secured Swap Obligations” means  Secured Swap Obligations  of any  Loan Party owing to one or more Lenders or their respective Affiliates; provided that, as of any  date of determination, such obligations shall constitute Reported Secured Swap Obligations solely  to the extent that as of any date of determination, such Lender party thereto or its Affiliate (other  than  JPMCB)  shall  have  reported  the  amount  of  such  outstanding  Swap  Obligations  to  the  Administrative Agent as of the last day of the previous fiscal quarter on or prior to the date that is  15 days following the end of such fiscal quarter (or (x) prior to the date that is 15 days following  the end of the first fiscal quarter following the Closing Date, within 30 days of the Closing Date                                         42  509265-2041-31349836.23  





 






   such Lender or Affiliate shall have reported the amount of such outstanding obligations as of the  Closing Date and (y) within 10 days of any request therefor by the Administrative Agent, such  Lender or Affiliate shall have reported the amount of such outstanding Swap Obligations as of any  other date reasonably requested by the Administrative Agent).               “Required Lenders” means at any time, the holders of more than 50% of  the Total  Commitments then in effect or, if the Commitments have been terminated, the Total Revolving  Extensions of Credit then outstanding.               “Requirement of Law” means as to any Person, the Certificate of Incorporation and  By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule  or regulation or determination of an arbitrator or a court or other Governmental Authority, in each  case applicable to or binding upon such Person or any of its property or to which such Person or  any of its property is subject.               “Reserves”  means,  any  and  all  reserves  which  the  Administrative  Agent  deems  necessary, in its Permitted Discretion (following (to the extent practicable) reasonable prior notice  to,  and  consultation with,  the  Borrower),  to  maintain  (including,  without  limitation, Banking  Services  Reserves,  Rent  Reserves,  reserves  for  dilution  of  Accounts,  reserves  for  Inventory  shrinkage, reserves for customs charges and shipping charges related to any Inventory in transit  and reserves for Swap Obligations) with respect to the Collateral or any Loan Party.               Notwithstanding anything to the contrary in this Agreement, (a) such Reserves shall  not be established or changed except upon not less than four (4) Business Days’ prior written notice  to the Borrower, which notice shall include a reasonably detailed description of such Reserve being  established (during which period (i) the Administrative Agent shall, if requested, discuss any such  Reserve  or  change  with  the  Borrower and  (ii)  the  Borrower  may  take  such  action  as  may  be  required so that the event, condition or matter that is the basis for such Reserve or change thereto  no longer exists or exists in a manner that would result in the establishment of a lower Reserve or  result  in  a  lesser  change  thereto,  in  a  manner  and  to  the  extent  reasonably  satisfactory  to  the  Administrative Agent); provided, that such establishment of or changes to Reserves will become  effective  immediately  prior  to  any  Borrowing  that  occurs  during  such  four  (4)  Business  Day  period, (b) the amount of any Reserve established by the Administrative Agent, and any change in  the amount of any Reserve, shall have a reasonable relationship to the event, condition or other  matter that is the basis for such Reserve or such change and (c) no reserves or changes shall be  duplicative of reserves or changes already accounted for through eligibility criteria.               “Responsible Officer” means the chief executive officer, president, chief financial  officer or treasurer of the Borrower, but in any event, with respect to financial matters, the chief  financial officer of the Borrower.               “Restricted Debt Payment” has the meaning set forth in Section 7.8(a).               “Restricted Payments” has the meaning set forth in Section 7.6.               “Restricted Subsidiary”  means  any  Subsidiary  of  the  Borrower  other  than  an  Unrestricted Subsidiary.                                         43  509265-2041-31349836.23  





 






               “Revolving Commitment Period” means the period from and including the Closing  Date to the Revolving Termination Date.               “Revolving Extensions of Credit” means as to any Revolving Lender at any time,  an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by  such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations then  outstanding  and  (c)  such  Lender’s Revolving  Percentage  of  the  Protective  Advances  then  outstanding.               “Revolving  Lender”  means  each  Lender  that  has  a  Commitment  or  that  holds  Revolving Loans.               “Revolving Loans” has the meaning set forth in Section 2.1(a).               “Revolving  Percentage”  means  as  to  any  Revolving  Lender  at  any  time,  the  percentage which such Lender’s Commitment then constitutes of the Total Commitments or, at  any  time  after  the  Commitments  shall  have  expired  or  terminated,  the  percentage  which  the  aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the  aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event  that the Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving  Extensions of Credit, the Revolving Percentage of any Lender shall be such Lender’s Revolving  Percentage immediately prior to the repayment in full of the Revolving Loans.  Notwithstanding  the  foregoing,  in  the  case  of  Section  2.23  when  a  Defaulting  Lender  shall  exist,  Revolving  Percentages shall be determined without regard to any Defaulting Lender’s Commitment.               “Revolving Termination Date” means the Scheduled Maturity Date.               “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial  Services LLC business.               “Sanctioned Country” means, at any time, a country, region or territory which is  itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran,  North Korea and Syria).               “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.  Department of the Treasury, the U.S. Department of State, the United Nations Security Council,  the European Union, any European Union member state, Her Majesty’s Treasury of the United  Kingdom or other relevant sanctions authority, in each case, having jurisdiction over any Group  Member, (b) any Person operating, organized, or resident in a Sanctioned Country, (c) any Person  owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b),  or (d) any Person otherwise the subject of any Sanctions.               “Sanctions” means all economic or financial sanctions or trade embargoes imposed,  administered  or  enforced  from  time  to  time  by  (a)  the  U.S.  government,  including  those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,                                         44  509265-2041-31349836.23  





 






   any  European  Union  member  state,  Her  Majesty’s  Treasury  of  the  United  Kingdom  or  other  relevant sanctions authority, in each case, having jurisdiction over any Group Member.               “Scheduled Maturity Date” means August 5, 2024.               “SEC” means the Securities and Exchange Commission, any successor thereto and  any analogous Governmental Authority.               “Secured  Parties”  has  the  meaning  set  forth  in  the  Guarantee  and  Collateral  Agreement.                “Secured Swap Obligations” means Swap Obligations of any Loan Party owing to  (a)  the  Administrative  Agent  or  its  Affiliates  or  (b)  one  or  more  Lenders  or  their  respective  Affiliates; provided that at or prior to the time that the Swap Agreement giving rise to such Swap  Obligation is entered into (or, if later, the Closing Date) the Borrower (other than for transactions  with JPMCB and its Affiliates) and the Lender party thereto or its Affiliate (other than JPMCB)  shall have delivered written notice to the Administrative Agent that such Swap Agreement has  been entered into and that the Swap Obligations under such Swap Agreement constitute a Secured  Swap Obligation entitled to the benefits of the Security Documents.               “Security  Documents”  means  the  collective  reference  to  the  Guarantee  and  Collateral Agreement, any Deposit Account Control Agreements and all other security documents  hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to  secure the obligations and liabilities of any Loan Party under any Loan Document.               “Solvent” means, when used with respect to any Person, that, as of any date of  determination, (a) the fair value of the assets of such Person, at a fair valuation, will exceed its  debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of  the assets of such Person will be greater than the amount that will be required to pay the probable  liabilities on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and  other liabilities become absolute and matured, (c) such Person will be able to pay its debts and  liabilities, subordinated, continent or otherwise, as such debts and liabilities become absolute and  matured and (d) such Person will not have an unreasonably small capital with which to conduct  the business in which it is engaged as such business is conducted as of such date of determination  and proposed to be conducted following such date. The amount of any contingent liability at any  time shall be computed as the amount that, in light of all of the facts and circumstances existing at  such time, represents the amount that can reasonably be expected to become an actual or matured  liability.               “Specified  Administrative Agent  Location” means  one or more locations in  the  continental United States identified in writing by the Administrative Agent to the Borrower from  time to time.               “Specified Event of Default” means an Event of Default under Section 8(a), 8(b)  (with  respect  to  any  Borrowing  Base  Certificate),  8(d)  (with  respect  to  any  breach  of  Section  6.2(g),  6.2(i)  or  Section  6.12  of  this  Agreement  or  Sections  8.1  or  8.2  of  the  Guarantee  and  Collateral Agreement) or Section 8(f).                                         45  509265-2041-31349836.23  





 






               “Specified Indebtedness” means Indebtedness of the types described in clauses (a)  and (c) of the definition of “Indebtedness”.               “Specified Letter  of  Credit”  means  that  certain  Letter  of  Credit,  dated  as  of  September 30, 2010, issued at the request of the Borrower by JPMCB for the benefit of Hartford  Fire Insurance Company (as renewed, amended, restated, amended and restated, supplemented or  otherwise modified from time to time).               “Specified Transaction” has the meaning set forth in Section 1.7.               “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator  of which is the number one and the denominator of which is the number one minus the aggregate  of the maximum reserve percentage (including any marginal, special, emergency or supplemental  reserves)  expressed  as  a  decimal  established  by  the  Federal  Reserve  Board  to  which  the  Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding  (currently referred to as “Eurocurrency liabilities” in Regulation D).  Such reserve percentage shall  include those imposed pursuant to Regulation D.  Eurodollar Loans shall be deemed to constitute  eurocurrency funding and to be subject to such reserve requirements without benefit of or credit  for proration, exemptions or offsets that may be available from time to time to any Lender under  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.               “Subject Agreements” has the meaning set forth in Section 6.13(a).               “Subordinated  Indebtedness”  means  any  Specified  Indebtedness  of  any  Group  Member that is expressly subordinated in right of payment to the Obligations; provided that, for  the  avoidance  of  doubt,  Indebtedness  under  the  Term  Loan  Credit  Agreement  shall  not  be  considered Subordinated Indebtedness.               “Subsidiary” means as to any Person, a corporation, partnership, limited liability  company or other entity of which shares of stock or other ownership interests having ordinary  voting power (other than stock or such other ownership interests having such power only by reason  of the happening of a contingency) to elect a majority of the board of directors or other managers  of such corporation, partnership or other entity are at the time owned, or the management of which  is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such  Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this  Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.               “Subsidiary Guarantor” means (i) each Restricted Subsidiary of the Borrower that  is  a Domestic Subsidiary  (other  than  any  Excluded  Subsidiary)  and  (ii)  each  other  Restricted  Subsidiary that is an obligor under or guarantor in respect of the Term Loans or any Permitted  Refinancing Indebtedness in respect thereof.               “Supermajority Lenders” means at any time, the holders of more than 66 2/3% of  (a)  until  the  Closing  Date,  the  Commitments  then  in  effect  and  (b)  thereafter,  the  Total  Commitments then in effect or, if the Commitments have been terminated, the Total Revolving  Extensions of Credit then outstanding.                                         46  509265-2041-31349836.23  





 






               “Supported QFC” has the meaning set forth in Section 10.20.               “Swap” means any agreement, contract, or transaction that constitutes a “swap”  within the meaning of section 1a(47) of the Commodity Exchange Act.               “Swap Agreement” means any agreement with respect to any swap, forward, future  or derivative transaction or option or similar agreement involving, or settled by reference to, one  or  more  rates,  currencies,  commodities,  equity  or  debt  instruments  or  securities,  or  economic,  financial or pricing indices or measures of economic, financial or pricing risk or value or any  similar transaction or any combination of these transactions; provided that no phantom stock or  similar plan providing for payments only on account of services provided by current or former  directors, officers, employees or consultants of the Borrower or any of its Subsidiaries shall be a  “Swap Agreement”.               “Swap  Obligation”  means  with  respect  to  any  Person,  any  obligation  to  pay  or  perform under any Swap Agreement.               “Syndication Agent” means the Syndication Agent identified on the cover page of  this Agreement.               “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.               “Term Loan Administrative Agent” means JPMCB, as administrative agent under  the Term Loan Documents, and its successors and assigns.               “Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as  of the Closing Date, among the Borrower, the lenders and agents party thereto and the Term Loan  Administrative Agent, as the same may be amended, restated, amended and restated, modified,  supplemented, refinanced and/or replaced from time to time in accordance with the terms thereof  and the Intercreditor Agreement to the extent constituting Permitted Refinancing Indebtedness.               “Term Loan Documents” means collectively (a) the Term Loan Credit Agreement,  (b) the Term Loan Security Documents, (c) the Intercreditor Agreement, (d) any promissory note  evidencing loans under the Term Loan Credit Agreement and (e) any amendment, restatement,  amendment and restatement, waiver, supplement or other modification to any of the documents  described in clauses (a) through (d).               “Term Loan Incremental Equivalent Debt” means any Indebtedness incurred by a  Loan Party in the form of one or more series of secured or unsecured bonds, debentures, notes or  similar instruments or term loans; provided that (a) if such Indebtedness is secured, (i) the liens  securing such Indebtedness shall be junior, with respect to the ABL Priority Collateral, to the Liens  on  the  Collateral  securing  the  Obligations and  (ii)  a  representative,  trustee,  collateral  agent,  security agent or similar Person acting on behalf of the holders of such Indebtedness shall have  become party to an intercreditor agreement reasonably satisfactory to the Administrative Agent,  (b) such Indebtedness does not mature earlier than the date that is 91 days after the Latest Maturity  Date (as defined in the Term Loan Credit Agreement) then in effect at  the time of incurrence                                         47  509265-2041-31349836.23  





 






   thereof and has a weighted average life to maturity no shorter than the Facility (as defined in the  Term Loan Credit Agreement) of Term Loans with the Latest Maturity Date (as defined in the  Term Loan Credit Agreement) in effect at the time of incurrence of such Indebtedness, (c) such  Indebtedness  contains  mandatory  prepayment  and  redemption  terms,  covenants  and  events  of  default that are either (x) customary for similar Indebtedness in light of then-prevailing market  conditions  (it  being  understood  and  agreed  that  such  Indebtedness  shall  include  financial  maintenance covenants only to the extent any such financial maintenance covenant is (i) applicable  only to periods after the Latest Maturity Date (as defined in the Term Loan Credit Agreement)  then in  effect at  the time of incurrence thereof  or (ii) included in  or added to  the  Term  Loan  Documents for the benefit of the lenders under the Term Loan Credit Agreement) or (y) when  taken as a whole (other than interest rates, rate floors, fees and optional prepayment or redemption  terms),  not  materially  more  favorable  to  the  lenders  or  investors  providing  such  Term  Loan  Incremental Equivalent Debt, as the case may be, than those set forth in the Term Loan Documents  are with respect to the lenders under the Term Loan Credit Agreement (other than covenants or  other provisions applicable only to periods after the Latest Maturity Date (as defined in the Term  Loan Credit Agreement) then in effect at the time of incurrence thereof or that are included in or  added to the Term Loan Documents for the benefit of the lenders under the Term Loan Credit  Agreement), in the case of each of clauses (x) and (y), as conclusively determined by the Borrower  in good faith, and (d) such Indebtedness is not guaranteed by any Person other than Loan Parties.               “Term  Loan  Obligations  Payment  Date”  has  the  meaning  set  forth  in  the  Intercreditor Agreement.               “Term  Loan  Priority  Collateral”  has  the  meaning  set  forth  in  the  Intercreditor  Agreement.               “Term  Loan  Representative”  has  the  meaning  set  forth  in  the  Intercreditor  Agreement.               “Term Loan Security Documents” means the collective reference to the Guarantee  and Collateral Agreement (as defined in the Term Loan Credit Agreement) and all other security  documents delivered to the Term Loan Administrative Agent granting a Lien on any property of  any  Person  to  secure  the  obligations  and  liabilities  of  any  Loan  Party  under  any  Term  Loan  Document.               “Term Loans” means loans outstanding under the Term Loan Credit Agreement.                “Total  Commitments”  means  at  any  time,  the  aggregate  amount  of  the  Commitments then in effect.               “Total Revolving Extensions of Credit” means at any time, the aggregate amount  of the Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.               “Trade Date” means with respect to any sale or assignment of rights by a Lender  under this Agreement, the date on which such Lender entered into a binding agreement to sell or  assign all or a portion of its rights under this Agreement.                                          48  509265-2041-31349836.23  





 






               “Transactions” means collectively, (a) the execution, delivery and performance by  the Borrower and the other Loan Parties of this Agreement, the borrowing of Loans hereunder and  the use of proceeds thereof, (b) the execution, delivery and performance by the Borrower and the  other Loan Parties of the Term Loan Credit Agreement, the borrowing of Term Loans thereunder  and the use of proceeds thereof, and (c) the Existing Indebtedness Refinancing.               “Transferee” means any Assignee or Participant.               “Type” means, when used in reference to any Loan or Borrowing, refers to whether  the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by  reference to the Adjusted LIBO Rate or the Alternate Base Rate.               “United States” means the United States of America.               “Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by any  Group Member (including the Insurance Subsidiary) and not controlled by or subject to any Lien  or  other  preferential  arrangement  in  favor  of  any  creditor  (other  than  Liens  created  under  the  Security Documents or the Term Loan Security Documents and Liens of the type referred to in  Section 7.3(u) or Section 7.3(x)); provided that Unrestricted Cash shall only include cash and Cash  Equivalents of the Insurance Subsidiary to the extent in excess of any minimum cash amounts that  the Insurance Subsidiary is required by law or regulation to maintain.               “Unrestricted  Subsidiary”  means  (a)  any  Subsidiary  of  the  Borrower  that  is  designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 6.11 subsequent to  the Closing Date and (b) any Subsidiary of an Unrestricted Subsidiary.               “U.S.  Person”  means  a  “United  States  person”  within  the  meaning  of  Section  7701(a)(30) of the Code.                “U.S. Special Resolution Regime” has the meaning set forth in Section 10.20.               “U.S.  Tax  Compliance  Certificate”  has  the  meaning  set  forth  in  Section  2.19(f)(ii)(B)(3).               “Vintage  Capital  Merger”  means  the  merger  contemplated  by  that  certain  Agreement and Plan of Merger dated as of June 17, 2018, among Vintage Rodeo Acquisition, Inc.,  a Delaware corporation, Vintage Rodeo Parent, LLC, a Delaware limited liability company, and  Borrower.               “Voluntary Prepayment Amount” means as of any date, an amount equal to (a) the  sum of (i) the aggregate principal amount of all optional prepayments of Term Loans made after  the Closing Date and prior to such date (excluding prepayments made with the proceeds of long- term Indebtedness) less (b) the aggregate principal amount of Indebtedness established pursuant  to Section 7.2(b) or Section 7.2(t) prior to such date in reliance on the Voluntary Prepayment  Amount.               “Weekly  Borrowing  Base  Period”  means  each  period  beginning  on  the  fifth  consecutive Business Day on which Liquidity is less than the greater of (a) 15% of the Line Cap                                         49  509265-2041-31349836.23  





 






   and (b) $45,000,000; provided that any such Weekly Borrowing Base Period shall end when and  if  Liquidity  shall  have  been  not  less  than  (i)  such  specified  level  and  (ii)  $45,000,000  for  30  consecutive days each.               “Wholly Owned Subsidiary” means as to any Person, any other Person all of the  Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such  Person directly and/or through other Wholly Owned Subsidiaries.               “Withdrawal  Liability”  means  liability to  a Multiemployer Plan as  a result of a  complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I  of Subtitle E of Title IV of ERISA.               “Write-Down and Conversion Powers” means with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule.               1.2   Classification of Loans and Borrowings.  For purposes of this Agreement,  Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).  Borrowings also may  be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).               1.3   Other Definitional Provisions.  (a)  Unless otherwise specified therein, all  terms defined in this Agreement shall have the defined meanings when used in the other Loan  Documents or any certificate or other document made or delivered pursuant hereto or thereto.               (b)   As used herein  and in the other Loan Documents, and any certificate or  other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any  Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to  the extent not defined, shall have the respective meanings given to them under GAAP (provided  that  all  terms  of  an  accounting  or  financial  nature  used  herein  shall  be  construed,  and  all  computations of amounts and ratios referred to herein shall be made, without giving effect to (x)  any  election  under  Accounting  Standards  Codification  825-10-25  (previously  referred  to  as  Statement  of  Financial  Accounting  Standards  159)  (or  any  other  Accounting  Standards  Codification  or  Financial  Accounting  Standard  having  a  similar  result  or  effect)  to  value  any  Indebtedness  or  other  liabilities  of  the  Borrower  or  any  Subsidiary  at  “fair  value”,  as  defined  therein and (y) any treatment of Indebtedness in respect of convertible debt instruments under  Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or  Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in  a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be  valued  at  the  full  stated  principal  amount  thereof),  (ii)  the  words  “include”,  “includes”  and  “including”  shall  be  deemed  to  be  followed  by  the  phrase  “without  limitation”,  (iii)  the  word  “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or  suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv)  the words “asset” and “property” shall be construed to have the same meaning and effect and to  refer to any and all tangible and intangible assets and properties, including cash, Capital Stock,  securities, revenues, accounts, leasehold interests and contract rights, (v) references to agreements  or  other  Contractual  Obligations  shall,  unless  otherwise  specified,  be  deemed  to  refer  to  such                                         50  509265-2041-31349836.23  





 






   agreements or Contractual Obligations as amended, supplemented, restated, amended and restated  or  otherwise  modified  from  time  to  time  and  (vi)  the  concept  of  “letters  of  credit”  shall  be  construed to include banker’s acceptances.                 (c)   The words “hereof”, “herein” and “hereunder” and words of similar import,  when used in this Agreement, shall refer to this Agreement as a whole and not to any particular  provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement  unless otherwise specified.               (d)   The meanings given to terms defined herein shall be equally applicable to  both the singular and plural forms of such terms.               (e)   Unless otherwise defined herein or the context otherwise requires, terms for  which meanings are provided in the UCC are used in this Agreement, including its preamble and  recitals, with such meanings.               1.4   Interest Rate; LIBOR Notification.  The interest rate on Eurodollar Loans is  determined by reference to the LIBO Rate, which is derived from the London interbank offered  rate.  The London interbank offered rate is intended to represent the rate at which contributing  banks may obtain short-term borrowings from each other in the London interbank market.  In July  2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no  longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark  Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for  purposes  of  the  IBA  setting  the  London  interbank  offered  rate.  As  a  result,  it  is  possible  that  commencing in 2022, the London interbank offered rate may no longer be available or may no  longer  be  deemed  an  appropriate  reference  rate  upon  which  to  determine  the  interest  rate  on  Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are  currently underway to identify new or alternative reference rates to be used in place of the London  interbank offered rate. In the event that the London interbank offered rate is no longer available or  in  certain  other  circumstances  as  set  forth  in Section  2.16(b)  of  this  Agreement,  such  Section  2.16(b) provides a mechanism for determining an alternative rate of interest.  The Administrative  Agent will notify the Borrower, pursuant to Section 2.16, in advance of any change to the reference  rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent  does not warrant or accept any responsibility for, and shall not have any liability with respect to,  the administration, submission or any other matter related to the London interbank offered rate or  other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate  thereto,  or  replacement  rate  thereof,  including  without  limitation,  whether  the  composition  or  characteristics of any such alternative, successor or replacement reference rate, as it may or may  not  be  adjusted  pursuant  to  Section  2.16(b),  will  be  similar  to,  or  produce  the  same  value  or  economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London  interbank offered rate prior to its discontinuance or unavailability.               1.5   Letter of Credit Amounts.  Unless otherwise specified herein, the amount  of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit available  to be drawn at such time; provided that with respect to any Letter of Credit that, by its terms  provides for one or more automatic increases in the available amount thereof, the amount of such  Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit after giving                                         51  509265-2041-31349836.23  





 






   effect to all such increases, whether or not such maximum amount is available to be drawn at such  time.               1.6   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 and acquired on the first date of its  existence by the holders of its Capital Stock at such time.               1.7   Limited  Condition  Transactions.  Notwithstanding  anything  in  this  Agreement or any Loan Document to the contrary when (i) calculating any applicable ratio or  financial  test  in  connection  with  the  incurrence  of  Indebtedness  (other  than  the  borrowing  of   Revolving Loans or the issuance of Letters of Credit), the creation of Liens, the making of any  Disposition, the making of an Investment, the making of a Restricted Payment, the designation of  a Subsidiary as restricted or unrestricted or the repayment of Indebtedness (each, a “Specified  Transaction”), (ii) determining the accuracy of any representation or warranty or (iii) determining  whether any Default or Event of Default has occurred, is continuing or would result from any  action, in each case of clauses (i) through (iii) for the purpose of determining whether a Specified  Transaction is permitted hereunder in connection with a Limited Condition Transaction, the date  of determination of such ratio or financial test, the accuracy of such representation or warranty  (but taking into account any earlier date specified therein) or whether any Default or Event of  Default has occurred, is continuing or would result therefrom shall, at the option of the Borrower  (the  Borrower’s  election  to  exercise  such  option  in  connection  with  any  Limited  Condition  Acquisition, an “LCT Election”), be deemed to  be the date the definitive agreements for such  Limited Condition Transaction are entered into (the “LCT Test Date”).  If on a Pro Forma Basis  after giving effect to such Limited Condition Transaction and the other transactions to be entered  into  in  connection  therewith  (including  any  incurrence  of  Indebtedness,  Liens,  Restricted  Payments  or  other  transactions  and  the  use  of  proceeds  thereof)  such  ratios,  financial  tests,  representations and warranties and absence of defaults are calculated as if such Limited Condition  Transaction or other transactions had occurred at the beginning of the most recent Reference Period  ending prior to the LCT Test Date for which financial statements are available, the Borrower could  have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or  other provisions, such provisions shall be deemed to have been complied with.  For the avoidance  of doubt, (i) if any of such ratios, financial tests, representations and warranties or absence of  defaults are exceeded or breached as a result of fluctuations in such ratio or financial test (including  due  to  fluctuations  in  Consolidated  EBITDA),  a  change  in  facts  or  circumstances  or  other  provisions at or prior to the consummation of the relevant Limited Condition Transaction, such  ratios, financial tests, representations and warranties and absence of defaults will not be deemed  to have been exceeded, breached, or otherwise failed as a result of such fluctuations or changed  circumstances solely for purposes of determining whether the Limited Condition Transaction and  any related transactions is permitted hereunder and (ii) such ratios, financial tests and compliance  with such conditions shall not be tested at the time of consummation of such Limited Condition  Transaction or related Specified Transactions.  If the Company has made an LCT Election for any  Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or  financial test  with  respect  to  any subsequent  acquisition or  Investment  that  the Borrower or a                                         52  509265-2041-31349836.23  





 






   Restricted Subsidiary is contractually committed to consummate on or following the relevant LCT  Test Date and prior to the earlier of the date on which such Limited Condition Transaction is  consummated or the date that the definitive agreement for such Limited Condition Transaction is  terminated or expires without consummation of such Limited Condition Transaction, any such  ratio or financial test shall be calculated on a Pro Forma Basis both (i) assuming such Limited  Condition Transaction and other transactions in connection therewith (including any incurrence of  Indebtedness, Liens, Restricted Payments or other transactions and the use of proceeds thereof)  have  been  consummated  and  (ii)  assuming  such  Limited  Condition  Transaction  and  other  transactions in connection therewith (including any incurrence of Indebtedness, Liens, Restricted  Payments or other transactions and the use of proceeds thereof) have not been consummated.               1.8   Calculations.  Notwithstanding  anything  in  this  Agreement  or  any  Loan  Document  to  the  contrary  (i)  the  Borrower  may  rely  on  more  than  one  basket  or  exception  hereunder (including both ratio-based and non-ratio based baskets and exceptions, and including  partial reliance on different baskets that, collectively, permit the entire proposed transaction) at the  time of any proposed transaction, and the Borrower may, in its sole discretion, at any later time  divide, classify or reclassify such transaction (or any portion thereof) in any manner that complies  with the available baskets and exceptions hereunder at such later time (provided that with respect  to  reclassification  of  Indebtedness  and  Liens,  any  such  reclassification  shall  be  subject to  the  parameters of Sections 7.2 and 7.3, as applicable), (ii) unless the Borrower elects otherwise, if the  Borrower or its Restricted Subsidiaries in connection with any transaction or series of such related  transaction  (A)  incurs  Indebtedness,  creates  Liens,  makes  Dispositions,  makes  Investments,  designates any Subsidiary as restricted or unrestricted or repays any Indebtedness or takes any  other action under or as permitted by a ratio-based basket and (B) incurs Indebtedness, creates  Liens,  makes  Dispositions,  makes  Investments,  designates  any  Subsidiary  as  restricted  or  unrestricted or repays any Indebtedness or takes any other action under a non-ratio-based basket  (which shall occur within five Business Days of the events in clause (A) above), then the applicable  ratio will be calculated with respect to any such action under the applicable ratio-based basket  without regard to any such action under such non-ratio-based basket made in connection with such  transaction or series of related transactions and (iii) if the Borrower or any Restricted Subsidiary  incurs Indebtedness under a ratio-based basket, such ratio-based basket (together with any other  ratio-based basket utilized in connection therewith, including in respect of other Indebtedness,  Liens,  Dispositions,  Investments,  Restricted  Payments  or  Restricted  Debt  Payments)  will  be  calculated excluding the cash proceeds of such Indebtedness for netting purposes (i.e., such cash  proceeds shall not reduce the Borrower’s Consolidated Leverage Ratio or Consolidated Secured  Leverage Ratio pursuant to clause (a)(ii) of the definition of such terms), provided that the actual  application of such proceeds may reduce Indebtedness for purposes of determining compliance  with  any  applicable  ratio.  For  example,  if  the  Borrower  incurs  Indebtedness  under  the  Base  Incremental Amount on the same date that it incurs Indebtedness under the Maximum Incremental  Amount, then the Consolidated Leverage Ratio and the Consolidated Secured Leverage Ratio and  any other applicable ratio will be calculated with respect to such incurrence under the Maximum  Incremental Amount without regard to any incurrence of Indebtedness under the Base Incremental  Amount. Unless the Borrower elects otherwise, Indebtedness incurred under Section 7.2(b) (other  than  Indebtedness  outstanding  on  the  Closing  Date  immediately  after  giving  effect  to  the  Transactions) and Section 7.2(t) shall be deemed incurred first under the Maximum Incremental  Amount  to  the  extent  permitted  (and  calculated  prior  to  giving  effect  to  any  substantially  simultaneous incurrence of any Indebtedness based on a basket or exception that is not based on a                                         53  509265-2041-31349836.23  





 






   financial ratio, including the Base Incremental Amount and the Voluntary Prepayment Amount),  with  any  balance  incurred  under  the  Base  Incremental  Amount  or  the  Voluntary  Prepayment  Amount. For purposes of determining compliance with Section 7.2(b) and Section 7.2(t), in the  event  that  any  Indebtedness  (or  any  portion  thereof)  meets  the  criteria  of  Base  Incremental  Amount, Maximum Incremental Amount or Voluntary Prepayment Amount, the Borrower may,  in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time  divide,  classify  or  reclassify,  such  Indebtedness  (or  any  portion  thereof)  in  any  manner  that  complies with Section 7.2(b) or Section 7.2(t), as applicable, on the date of such classification or  any such reclassification, as applicable.               1.9   Discontinued Operations.  Notwithstanding anything to the contrary in this  Agreement  or  any  classification  under  GAAP  of  any  Person,  business,  assets  or  operations  in  respect  of  which  a  definitive  agreement  for  the  disposition  thereof  has  been  entered  into  as  discontinued operations, no pro forma effect shall be given to any discontinued operations (and  the Consolidated EBITDA attributable to any such Person, business, assets or operations shall not  be excluded for any purposes hereunder) until such disposition shall have been consummated.               1.10  Bridge  Loans.  For  purposes  of  determining  the  maturity  date  of  any  Indebtedness,  customary  bridge  loans  that  are  subject  to  customary  conditions  (including  no  payment or bankruptcy event of default) that would either automatically be extended as, converted  into or required to be exchanged for permanent refinancing shall be deemed to have the maturity  date as so extended, converted or exchanged.                 SECTION 2.  AMOUNT AND TERMS OF COMMITMENTS               2.1   Commitments.   (a)  Subject  to  the  terms  and  conditions  hereof,  each  Revolving  Lender severally agrees  to  make revolving credit loans (“Revolving  Loans”) to the  Borrower from time to time during the Revolving Commitment Period in an aggregate principal  amount at any one time outstanding which would not result in either (i) the Revolving Loans of  such  Lender  when  added  to  the  sum  of  (x)  such  Lender’s  Revolving Percentage  of  the  L/C  Obligations then outstanding, (y) [reserved] and (z) such Lender’s Protective Advance Exposure  then outstanding, exceeding the amount of such Lender’s Commitment or (ii) the Total Revolving  Extensions of Credit exceeding the Line Cap, subject to the authority of the Administrative Agent,  in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.3.  During  the  Revolving  Commitment  Period  the  Borrower  may  use  the  Commitments  by  borrowing,  prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the  terms and conditions hereof.  The Revolving Loans may from time to time be Eurodollar Loans or  ABR  Loans,  as  determined  by  the  Borrower  and  notified  to  the  Administrative  Agent  in  accordance with Sections 2.2 and 2.12.               (b) The Borrower hereby unconditionally promises to pay to the Administrative  Agent for the account of and ratable benefit of each Lender the aggregate outstanding principal  amount of the Loans on the Revolving Termination Date.               2.2   Procedure  for  Revolving  Loan  Borrowing.   The  Borrower  may  borrow  under the Commitments during the Revolving Commitment Period on any Business Day, provided  that the Borrower shall give the Administrative Agent a Borrowing Request substantially in the                                         54  509265-2041-31349836.23  





 






   form of Exhibit A attached hereto (which notice must be received by the Administrative Agent  prior to (a) 12:00 Noon, New York City time three Business Days prior to the requested Borrowing  Date,  in  the  case  of  Eurodollar  Loans;  provided,  that  such notice  may  be  received  by  the  Administrative Agent prior to 12:00 Noon, New York City time one Business Day prior to the  Closing Date for a Eurodollar Borrowing to be made on the Closing Date, or (b) 10:00 a.m., New  York City time, the date of the requested Borrowing Date, in the case of ABR Loans) (provided  that any such notice of a borrowing of Revolving Loans that are ABR Loans to finance payments  required by Section 3.5 must be given not later than 10:00 A.M., New York City time, on the date  of  the  proposed  borrowing),  specifying  (i)  the  amount  and  Type  of  Revolving  Loans  to  be  borrowed,  (ii)  the  requested  Borrowing  Date  and  (iii)  in  the  case  of  Eurodollar  Loans,  the  respective amounts of each such Type of Loan and the respective lengths of the initial Interest  Period therefor.  Each borrowing under the Commitments shall be in an amount equal to (x) in the  case  of  ABR  Loans,  $1,000,000  or  a  whole  multiple  of  $500,000  in  excess  thereof  (or,  if  Availability  at  the  time  is  less  than  $1,000,000,  such  lesser amount)  and  (y)  in  the  case  of  Eurodollar  Loans,  $3,000,000  or  a  whole  multiple  of  $1,000,000  in  excess  thereof  (or,  if  Availability at the time is less than $3,000,000, such lesser amount).  Upon receipt of any such  notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender  thereof.  Each Revolving Lender shall make the amount of its pro rata share of each borrowing  available to the Administrative Agent for the account of the Borrower at the Funding Office prior  to 12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds  immediately available to the Administrative Agent.  Such borrowing will then be made available  to the Borrower by the Administrative Agent crediting the account of the Borrower on the books  of such office with the aggregate of the amounts made available to the Administrative Agent by  the Revolving Lenders and in like funds as received by the Administrative Agent.               2.3   Protective  Advances.  (a)  Subject  to  the  limitations  set  forth  below,  the  Administrative Agent is authorized by the Borrower and the Lenders, from time to time in the  Administrative  Agent’s  Permitted  Discretion  (but  shall  have  absolutely  no  obligation  to),  following notice to the Borrower, to make Loans to the Borrower, on behalf of all Lenders, which  the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve  or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the  amount  of,  repayment  of  the  Loans  and  other  Obligations,  or  (iii)  to  pay  any  other  amount  chargeable to or required to be paid by the Borrower pursuant to the terms of this Agreement,  including payments of reimbursable expenses (including costs, fees, and expenses as described in  Section 10.5) and other sums payable under the Loan Documents (any of such Loans are herein  referred to as “Protective Advances”); provided that, as of the date of the making of any Protective  Advance, the aggregate amount of outstanding Protective Advances shall not exceed 10% of the  Commitments outstanding as of such date; provided further that the Total Revolving Extensions  of Credit outstanding at any time shall not exceed the Total Commitments.  Protective Advances  may be made even if the conditions precedent set forth in Section 5.2 have not been satisfied.  The  Protective Advances shall be secured by the Liens in favor of the Administrative Agent in and to  the Collateral and shall constitute Obligations hereunder.  All Protective Advances shall be ABR  Loans.  The Administrative Agent’s authorization to make Protective Advances may be revoked  at any time by the Required Lenders.  Any such revocation must be in writing and shall become  effective prospectively upon the Administrative Agent’s receipt thereof.  If at any time (a) the  amount  equal  to  (i)  the  Line  Cap minus (ii)  the  Total  Revolving  Extensions  of  Credit  then  outstanding (calculated, with respect to any Defaulting Lender, as if such Defaulting Lender had                                         55  509265-2041-31349836.23  





 






   funded its Revolving Percentage of all outstanding Revolving Loans) exceeds the amount of any  Protective Advance and (b) the conditions precedent set forth in Section 5.2 have been satisfied,  the Administrative Agent may request the Revolving Lenders to make a Revolving Loan to repay  a Protective Advance.  At any other time the Administrative Agent may require the Lenders to  fund their risk participations as set forth in Section 2.3(b).               (b)   Upon  the  making  of  a  Protective  Advance  by  the  Administrative  Agent  (whether before or after the occurrence of a Default), each Lender shall be deemed, without further  action  by  any  party  hereto,  to  have  unconditionally  and  irrevocably  purchased  from  the  Administrative Agent, without recourse or warranty, an undivided interest and participation in  such Protective Advance in proportion to its Revolving Percentage.  From and after the date, if  any, on which any Lender is required to fund its participation in any Protective Advance purchased  hereunder,  the  Administrative  Agent  shall  promptly  distribute  to  such  Lender  such  Lender’s  Revolving  Percentage  of  all  payments  of  principal  and  interest  and  all  proceeds  of  Collateral  received  by  the  Administrative  Agent  in  respect  of  such  Protective  Advance  (appropriately  adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s  participating  interest  was  outstanding  and  funded  and,  in  the  case  of  principal  and  interest  payments,  to  reflect  such  Lender’s  pro  rata  portion  of  such  payment  if  such  payment  is  not  sufficient to pay the principal of and interest on all Protective Advances then due).               2.4   [Reserved].                 2.5   [Reserved].                 2.6   [Reserved].                 2.7   [Reserved].                  2.8   Fees, etc.  (a)  The Borrower agrees to pay to the Administrative Agent for  the account of each Revolving Lender a commitment fee for the period from and including the  Closing Date to the last day of the Revolving Commitment Period, computed at the Commitment  Fee Rate on the average daily amount of the Available Commitment of such Lender during the  period  for  which  payment  is  made,  payable  quarterly  in  arrears  on  each  Fee  Payment  Date,  commencing on the first such date to occur after the Closing Date.                (b)   The Borrower agrees  to pay to  the Administrative Agent  the fees  in  the  amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to  perform any other obligations contained therein.               2.9   Termination or Reduction of Commitments.  The Borrower shall have the  right, upon not less than three Business Days’ revocable notice to the Administrative Agent (which  may be conditioned as stated in such notice by the Borrower), to terminate the Commitments or,  from time to time, to reduce the amount of the Commitments; provided that no such termination  or  reduction  of  Commitments  shall  be  permitted  if,  after  giving  effect  thereto  and  to  any  prepayments  of  the  Revolving  Loans  made  on  the  effective  date  thereof,  the  Total  Revolving  Extensions of Credit would exceed the Line Cap.  Any such reduction shall be in an amount equal  to $5,000,000, or a whole multiple thereof, and shall reduce permanently the Commitments then  in effect.                                         56  509265-2041-31349836.23  





 






               2.10  Optional Prepayments.  The Borrower may at any time and from time to  time prepay the Loans, in whole or in part, without premium or penalty, upon revocable notice  (which  may  be  conditioned  as  stated  in  such  notice  by  the  Borrower)  delivered  to  the  Administrative Agent no later than 12:00 Noon, New York City time, three Business Days prior  thereto, in the case of Eurodollar Loans, and no later than 12:00 Noon, New York City time, one  Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and  amount  of  prepayment  and  whether  the  prepayment  is  of  Eurodollar  Loans  or  ABR  Loans;  provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest  Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section  2.20.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant  Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and  payable on the date specified therein, together with (except in the case of Revolving Loans that  are ABR Loans) accrued interest to such date on the amount prepaid.  Partial prepayments of  Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of  $100,000 in excess thereof. The application of any prepayment pursuant to this Section 2.10 shall  be made first, to ABR Loans and second, to Eurodollar Loans.               2.11  Mandatory Prepayment of Loans.  (a)  In the event and on such occasion  that (i) the Total Revolving Extensions of Credit exceed the Total Commitments or (ii) the Total  Revolving Extensions of Credit (excluding for such purposes Protective Advances) exceed the  Borrowing Base, the Borrower shall promptly (and in any event within two Business Days) prepay  (or in the case of L/C Exposure, cash collateralize to 103% of the aggregate undrawn face amount  thereof) the Revolving Loans, L/C Exposure and/or (in the case of clause (i) above) the Protective  Advances in an aggregate amount equal to such excess (it being understood that the Borrower shall  prepay  Revolving  Loans  and/or  Protective  Advances  prior  to  cash  collateralization  of  L/C  Exposure).               (b)   [Reserved].               (c)   The application of any prepayment pursuant to this Section 2.11 shall be  applied first, to Protective Advances, second, to Revolving Loans and third to cash collateralize  L/C Obligations  and, with  respect  to  Protective  Advances  and Revolving  Loans, first to  ABR  Loans and second to Eurodollar Loans.               (d)   On  each  Business  Day  during  any  Full  Cash  Dominion  Period,  the  Administrative Agent shall apply, subject to Section 2.17(b) of this Agreement and Section 8.1(b)  of  the  Guarantee  and  Collateral  Agreement,  all  funds  credited  to  any  applicable  Collection  Account  as  of  10:00  A.M.,  New  York  City  time,  on  such  Business  Day  (whether  or  not  immediately  available)  and first to  prepay  any  Protective  Advances  that  may  be  outstanding,  second to prepay other Revolving Loans (without a corresponding reduction in Commitments).                 2.12  Conversion and Continuation Options.  (a)  The Borrower may elect from  time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior  irrevocable  notice  of  such  election  substantially  in  the  form  of  Exhibit  B  attached  hereto  (an  “Interest Election Request”) no later than 12:00 Noon, New York City time, on the Business Day  preceding the proposed conversion date, provided that any such conversion of Eurodollar Loans  may only be made on the last day of an Interest Period with respect thereto.  The Borrower may                                         57  509265-2041-31349836.23  





 






   elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative  Agent prior irrevocable notice of such election no later than 12:00 Noon, New York City time, on  the third Business Day preceding the proposed conversion date (which Interest Election Request  shall specify the length of the initial Interest Period therefor), provided that no ABR Loan may be  converted into a Eurodollar Loan when (i) any Event of Default has occurred and is continuing  and  the  Administrative Agent  or  the  Required  Lenders  have  determined  in  its  or  their  sole  discretion not to permit such conversion or (ii) if a Specified Event of Default is in existence.   Upon receipt of any such Interest Election Request the Administrative Agent shall promptly notify  each relevant Lender thereof.               (b)   Any Eurodollar Loan may be continued as such upon the expiration of the  then current  Interest  Period  with  respect  thereto  by the Borrower  giving  irrevocable notice by  submitting  an  Interest  Election  Request  to  the  Administrative  Agent,  in  accordance  with  the  applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next  Interest Period to be applicable to such Loans, provided that no Eurodollar Loan under a particular  Facility may be continued as such (i) when any Event of Default has occurred and is continuing  and the Administrative Agent has or the Required Lenders have determined in its or their sole  discretion not to permit such continuations or (ii) if a Specified Event of Default is in existence,  and provided, further, that if the Borrower shall fail to give any required Interest Election Request  as  described  above  in  this  paragraph  or  if  such  continuation  is  not  permitted  pursuant  to  the  preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of  such  then  expiring  Interest  Period.   Upon  receipt  of  any  such  Interest  Election  Request  the  Administrative Agent shall promptly notify each relevant Lender thereof.               2.13  Limitations on Eurodollar Borrowings.  Notwithstanding anything to the  contrary in this Agreement, all borrowings, conversions and continuations of Eurodollar Loans  and  all  selections  of  Interest  Periods  shall  be  in  such  amounts  and  be  made  pursuant  to  such  elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar  Loans comprising each Eurodollar Borrowing shall be equal to $3,000,000 or a whole multiple of  $1,000,000 in excess thereof and (b) no more than 15 Eurodollar Borrowings shall be outstanding  at any one time.               2.14  Interest  Rates  and  Payment  Dates.   Subject  to  Section  2.16, (a)  each  Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at  a rate per annum equal to the Adjusted LIBO Rate determined for such day plus the Applicable  Margin.               (b)   Each ABR Loan shall bear interest at a rate per annum equal to the Alternate  Base Rate plus the Applicable Margin.               (c)   (i) If all or a portion of the principal amount of any Loan or Reimbursement  Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise)  upon the election of the Required Lenders, such overdue amount shall bear interest at a rate per  annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto  pursuant  to  the  foregoing  provisions  of  this  Section  2.14  plus  2%  or  (y)  in  the  case  of  Reimbursement Obligations, the rate applicable to Revolving Loans that are ABR Loans plus 2%,  and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any                                         58  509265-2041-31349836.23  





 






   commitment fee or other amount payable hereunder shall not be paid when due (whether at the  stated maturity, by acceleration or otherwise) upon election of the Required Lenders, such overdue  amount shall bear interest at a rate per annum equal to the rate then applicable to Revolving Loans  that are ABR Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date  of such non-payment until such amount is paid in full (as well after as before judgment).               (d)   Interest shall be payable in arrears on each Interest Payment Date, provided  that interest accruing pursuant to paragraph (c) of this Section 2.14 shall be payable from time to  time on demand.               2.15  Computation of Interest and Fees.  (a)  Interest and fees payable pursuant  hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,  with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime  Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)  day year for the actual days elapsed (including the first day, but excluding the last day; provided  that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on  such Loan).  The Administrative Agent shall as soon as practicable notify the Borrower and the  relevant Lenders of each determination of an Adjusted LIBO Rate.               (b)   Each determination of an interest rate by the Administrative Agent pursuant  to  any  provision  of  this  Agreement  shall  be  conclusive  and  binding  on  the  Borrower  and  the  Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the  Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative  Agent in determining any interest rate pursuant to Section 2.14(a).               2.16  Alternate Rate of Interest.  (a)  If prior to the commencement of any Interest  Period for a Eurodollar Borrowing:                     (i)   the Administrative Agent determines (which determination shall be              conclusive and binding absent manifest error) that adequate and reasonable means              do  not  exist  for  ascertaining  the  Adjusted  LIBO  Rate  or  the  LIBO  Rate,  as              applicable (including because the LIBO Screen Rate is not available or published              on a current basis), for a Loan for such Interest Period, or                     (ii)  the Administrative Agent is advised by the Required Lenders that              the  Adjusted  LIBO  Rate  or  the  LIBO  Rate,  as  applicable,  for  a  Loan  for  such              Interest Period will not adequately and fairly reflect the cost to such Lenders (as              conclusively certified by such Lenders) of making or maintaining their Loans (or              its Loan) included in such Borrowing for such Interest Period,    then  the  Administrative  Agent  shall  give  notice  thereof  to  the  Borrower  and  the  Lenders  by  telephone,  telecopy  or  electronic  mail  as  promptly  as  practicable  thereafter  and,  until  the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to  such notice no longer exist (which notification shall be made promptly after the Administrative  Agent obtains knowledge of the cessation of the circumstances referenced in clause (i) above or  receives notice from the Required Lenders in respect of the cessation of circumstances referenced  in  clause  (ii)  above),  (A) any  Interest  Election  Request  that  requests  the  conversion  of  any                                         59  509265-2041-31349836.23  





 






   Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing  shall  be  ineffective  and  (B) if  any  Borrowing  Request  requests  a  Eurodollar  Borrowing,  such  Borrowing shall be made as an ABR Borrowing.               (b)   If at any time the Administrative Agent determines (which determination  shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have  arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in  clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen  Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and  there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the  administrator of the LIBO Screen Rate has made a public statement identifying a specific date  after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and  there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the  supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying  a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be  published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental  Authority  having  jurisdiction  over  the  Administrative  Agent  has  made  a  public  statement  identifying  a  specific  date  after  which  the  LIBO  Screen  Rate  may  no  longer  be  used  for  determining  interest  rates  for  loans,  then  the  Administrative  Agent  and  the  Borrower  shall  endeavor to establish an alternate rate of interest to the LIBO Rate and Adjusted LIBO Rate that  gives due consideration to the then prevailing market convention for determining a rate of interest  for syndicated loans in the United States at such time, and shall enter into an amendment to this  Agreement  to  reflect  such  alternate  rate  of  interest  and  such  other  related  changes  to  this  Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not  include a reduction of the Applicable Margin); provided that, if such alternate rate of interest as so  determined would be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement.   Notwithstanding  anything  to  the  contrary  in  Section  10.1, such  amendment  shall  become effective without any further action or consent of any other party to this Agreement so  long as the Administrative Agent shall not have received, within five Business Days of the date  notice  of  such  alternate  rate  of  interest  is  provided  to  the  Lenders,  a  written  notice  from  the  Required Lenders stating that such Required Lenders object to such amendment.  Until an alternate  rate  of  interest  shall  be  determined  in  accordance  with  this  clause  (b)  (but,  in  the  case  of  the  circumstances described in clause (ii)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this  Section 2.16(b), only to the extent the LIBO Screen Rate for such Interest Period is not available  or published at such time on a current basis), (x) any Interest Election Request that requests the  conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a  Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar  Borrowing, such Borrowing shall be made as an ABR Borrowing.               2.17  Pro Rata Treatment and Payments.  (a)  Each borrowing by the Borrower  from  the  Revolving  Lenders  hereunder,  each  payment  by  the  Borrower  on  account  of  any  commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata  according to the Revolving Percentages of the Lenders, in each case unless otherwise provided in  this Agreement.                (b)   Any  proceeds  of  Collateral  of  any  Loan  Party  received  by  the  Administrative Agent (i) after an Event of Default has occurred and is continuing and the Required                                         60  509265-2041-31349836.23  





 






   Lenders so direct or (ii) at any other time, not constituting (A) a specific payment of principal,  interest, fees or other sum payable under the Loan Documents (which shall be applied as specified  by the Borrower), (B) a mandatory prepayment (which shall be applied in accordance with Section  2.11(c)) or (C) amounts  to be applied from the Collection Account (which shall be applied in  accordance with Section 2.11(d)), shall be applied, subject to the Intercreditor Agreement, ratably  first, to pay any fees, indemnities, or expense reimbursements then owing to the Administrative  Agent and any Issuing Lender from, or guaranteed by, such Loan Party under the Loan Documents  (other than in connection with Banking Services Obligations or Swap Obligations), second, to pay  any fees or expense reimbursements then owing to the Lenders from, or guaranteed by, such Loan  Party  under  the  Loan  Documents  (other  than  in  connection  with  Banking  Services  or  Swap  Obligations), third,  to  pay  interest  due  in  respect  of  the  Protective  Advances  owing  by  or  guaranteed by such Loan Party, fourth, to pay the principal of the Protective Advances owing by  or guaranteed by such Loan Party, fifth, to pay interest then due and payable on the Loans (other  than  the  Protective  Advances)  and  unreimbursed  L/C  Disbursements,  in  each  case  owing  or  guaranteed by such Loan Party, ratably, sixth, to prepay principal on the Loans (other than the  Protective Advances) and unreimbursed L/C Disbursements owing or guaranteed by such Loan  Party  and  to  the  payment  of  any  amounts  owing  with  respect  to  Reported  Banking  Services  Obligations and Reported Secured Swap Obligations owing or guaranteed by such Loan Party,  ratably, seventh, to pay an amount to the Administrative Agent equal to 103% of the aggregate  undrawn face amount of all outstanding Letters of Credit issued on behalf of, or guaranteed by,  such Loan Party, to be held as cash collateral for such Obligations, eighth, to the payment of any  amounts  owing  with  respect  to  Banking  Services  Obligations  (other  than  Reported  Banking  Services  Obligations)  and  Secured  Swap  Obligations  (other  than  Reported  Secured  Swap  Obligations) owing or guaranteed by such Loan Party, ratably, ninth, to the payment of any other  Obligations owing to the Administrative Agent or any Lender by, or guaranteed by, such Loan  Party, ratably, and tenth, any balance remaining after the Obligations shall have been paid in full  and no Letters of Credit shall be outstanding (other than Letters of Credit which have been cash  collateralized in accordance with the foregoing) shall be paid over to the applicable Loan Party at  its account designated for such purpose by written notice by such Loan Party to the Administrative  Agent or to whomsoever else may be lawfully entitled to receive the same.  The application of any  payment  pursuant  to  this  Section  2.17(b)  shall  be  made first,  to  ABR  Loans  and second,  to  Eurodollar Loans.  Each of the Administrative Agent and the Lenders shall have the continuing  and exclusive right to apply and reverse and reapply any and all such proceeds and payments to  any portion of the Obligations to maximize realization of the Collateral (it being understood that,  notwithstanding the foregoing, in no event shall payments be made pursuant to levels “eighth” or  “ninth” above prior to the payment in full of all obligations described in levels “first” through  “seventh” above).  Notwithstanding the foregoing, no amount received from any Loan Party shall  be applied to any Excluded Swap Obligation of such Loan Party.               (c)   Each payment (including each prepayment) by the Borrower on account of  principal of and interest on the Revolving Loans shall be made pro rata according to the respective  outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, unless  otherwise provided by this Agreement.               (d)   All  payments  (including  prepayments)  to  be  made  by  the  Borrower  hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff  or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof                                         61  509265-2041-31349836.23  





 






   to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and  in immediately available funds.  The Administrative Agent shall distribute such payments to each  relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such  Lender pursuant to Section 9.7.  If any payment hereunder (other than payments on the Eurodollar  Loans) becomes due  and payable on a day other than a Business  Day,  such payment  shall be  extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan becomes due  and payable on a day other than a Business Day, the maturity thereof shall be extended to the next  succeeding Business Day unless the result of such extension would be to extend such payment into  another calendar month, in which event such payment shall be made on the immediately preceding  Business Day.  In the case of any extension of any payment of principal pursuant to the preceding  two sentences, interest thereon shall be payable at the then applicable rate during such extension.  During any Full Cash Dominion Period, solely for purposes of determining the amount of Loans  available  for  borrowing  purposes,  checks  (in  addition  to  immediately  available  funds  applied  pursuant to Section 2.11(d)) from collections of items of payment and proceeds of any Collateral  shall be applied in whole or in part against the applicable Obligations as of 10:00 A.M., New York  City time, on the Business Day of receipt, subject to actual collection.               (e)   Unless the Administrative Agent shall have been notified in writing by any  Lender prior to a borrowing that such Lender will not make the amount that would constitute its  share of such borrowing available to the Administrative Agent, the Administrative Agent may  assume that such Lender is making such amount available to the Administrative Agent, and the  Administrative Agent may, in reliance upon such assumption, make available to the Borrower a  corresponding amount.  If such amount is not made available to the Administrative Agent by the  required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,  on demand, such amount with interest thereon, at a rate equal to the greater of (i) the NYFRB Rate  and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules  on interbank  compensation, for the period until  such  Lender makes  such amount immediately  available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any  Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence  of  manifest  error.   If  such  Lender’s  share  of  such  borrowing  is  not  made  available  to  the  Administrative Agent by such Lender within three Business Days after such Borrowing Date, the  Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate  per annum applicable to Revolving Loans that are ABR Loans, on demand, from the Borrower.               (f)   Unless the Administrative Agent shall have been notified in writing by the  Borrower prior to the date of any payment due to be made by the Borrower pursuant to the terms  hereof or any other Loan Document (including any date that is fixed for prepayment by notice  from the Borrower to the Administrative Agent pursuant to Section 2.11(d)) that the Borrower will  not make such payment to the Administrative Agent, the Administrative Agent may assume that  the Borrower is making such payment, and the Administrative Agent may, but shall not be required  to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares  of a corresponding amount.   If such payment is  not  made to  the Administrative Agent  by the  Borrower  within  three  Business  Days  after  such  due  date,  the  Administrative  Agent  shall  be  entitled to recover, on demand, from each Lender to which any amount which was made available  pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal  to  the daily  average NYFRB Rate.  Nothing  herein  shall be deemed to  limit the rights  of the  Administrative Agent or any Lender against the Borrower.                                         62  509265-2041-31349836.23  





 






               (g)   If any  Lender shall fail to make any payment required to be made by it  pursuant to Section 2.17(e), 2.17(f), 2.19(e), 3.4(a) or 9.7, then the Administrative Agent may, in  its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter  received  by  the  Administrative  Agent  for  the  account  of  such  Lender  for  the  benefit  of  the  Administrative Agent or the Issuing Lender to satisfy such Lender’s obligations to it under such  Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in  a segregated account as cash collateral for, and application to, any future funding obligations of  such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order  as determined by the Administrative Agent in its discretion.               2.18  Requirements  of  Law.  (a)   If  the  adoption  of  or  any  change  in  any  Requirement of Law or in the interpretation, administration, implementation or application thereof  or compliance by any Lender or other Credit Party with any request or directive (whether or not  having the force of law) from any central bank or other Governmental Authority, in each case  made or occurring subsequent to the Closing Date:                     (i)   shall  subject  any  Credit  Party  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;                     (ii)  shall impose, modify or hold applicable any reserve, special deposit,              compulsory loan, insurance charge or similar requirement against assets held by,              deposits  or  other  liabilities  in  or  for  the  account  of,  advances,  loans  or  other              extensions of credit (or participations therein) by, or any other acquisition of funds              by, any office of such Lender that is not otherwise included in the determination of              the Adjusted LIBO Rate; or                     (iii) shall impose on such Lender any other condition (other than Taxes);   and the result of any of the foregoing is to increase the cost to such Lender or such other Credit  Party, by an amount that  such  Lender or other  Credit Party deems  to  be material,  of making,  converting into, continuing or maintaining Loans or issuing or participating in Letters of Credit,  or  to  reduce  any  amount  receivable  hereunder  in  respect  thereof,  then,  in  any  such  case,  the  Borrower  shall  promptly  pay  such  Lender  or  such  other  Credit  Party,  upon  its  demand,  any  additional  amounts  necessary  to  compensate  such  Lender  or  such  other  Credit  Party  for  such  increased cost or reduced amount receivable.  If any Lender or such other Credit Party becomes  entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the  Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become  so entitled.               (b)   If any Lender shall have determined that the adoption of or any change in  any  Requirement  of  Law  regarding  capital  or  liquidity  requirements  or  in  the  interpretation,  administration,  implementation or  application  thereof  or  compliance  by  such  Lender  or  any  corporation controlling such Lender with any request or directive regarding capital or liquidity  requirements (whether or not having the force of law) from any Governmental Authority made                                         63  509265-2041-31349836.23  





 






   subsequent to the Closing Date shall have the effect of reducing the rate of return on such Lender’s  or such corporation’s capital as a consequence of its obligations hereunder or under or in respect  of any Letter of Credit to a level below that which such Lender or such corporation could have  achieved but for such adoption, change or compliance (taking into consideration such Lender’s or  such corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by  such  Lender  to  be  material,  then  from  time  to  time,  after  submission  by  such  Lender  to  the  Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower  shall pay to such Lender such additional amount or amounts as will compensate such Lender or  such corporation for such reduction.                (c)   Notwithstanding  anything  herein  to  the  contrary,  (i)  all  requests,  rules,  guidelines, requirements and directives promulgated by the Bank for International Settlements, the  Basel Committee on Banking Supervision (or any successor or similar authority) or by United  States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements  and directives thereunder or issued in connection therewith or in implementation thereof, shall in  each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or  implemented.               (d)   A certificate as to any additional amounts payable pursuant to this Section  2.18 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be  conclusive in  the absence of manifest  error.  Notwithstanding anything to the contrary in this  Section 2.18, the Borrower shall not be required to compensate a Lender pursuant to this Section  2.18 for any amounts incurred more than six months prior to the date that such Lender notifies the  Borrower  of  such  Lender’s  intention  to  claim  compensation  therefor; provided that,  if  the  circumstances giving rise to such claim have a retroactive effect, then such six-month period shall  be extended to include the period of such retroactive effect.  The obligations of the Borrower  pursuant to this Section 2.18 shall survive the termination of this Agreement and the payment of  the Loans and all other amounts payable hereunder.               (e)   Notwithstanding any other provision of this Section 2.18 to the contrary, no  Lender shall be entitled to receive any compensation pursuant to this Section 2.18 unless it shall  be the general policy or practice of such Lender to seek compensation from other similarly situated  borrowers in the syndicated loan market in the United States with respect to its similarly affected  loans under agreements with such borrowers having provisions similar to this Section 2.18.               2.19  Taxes.  (a)  Any and all payments by or on account of any obligation of any  Loan Party under any Loan Document shall be made without deduction or withholding for any  Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith  discretion of an applicable withholding agent) requires the deduction or withholding of any Tax  from any such payment by a withholding agent, then the applicable withholding agent shall be  entitled to make such deduction or withholding and shall timely pay the full amount deducted or  withheld to the relevant Governmental Authority in accordance with applicable law and, if such  Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased  as necessary so that, after such deduction or withholding has been made (including such deductions  and withholdings applicable to  additional sums  payable under this  Section 2.19), the amounts                                          64  509265-2041-31349836.23  





 






   received with respect to this agreement equal the sum which would have been received had no  such deduction or withholding been made.               (b)   The Loan Parties shall timely pay to the relevant Governmental Authority  in accordance with applicable law, or at the option of the Administrative Agent timely reimburse  it for, Other Taxes.               (c)   As soon as practicable after any payment of Taxes by any Loan Party to a  Governmental  Authority  pursuant  to  this Section  2.19,  such  Loan  Party  shall  deliver  to  the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority evidencing such payment, a copy of the return reporting such payment or other evidence  of such payment reasonably satisfactory to the Administrative Agent.               (d)   The Loan Parties shall jointly and severally indemnify each Credit Party,  within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section  2.19) payable or paid by such Credit Party or required to be withheld or deducted from a payment  to such Credit Party 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 by a Lender (with a copy to the Administrative Agent), or by the Administrative  Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.               (e)   Each Lender shall severally indemnify the Administrative Agent, within 10  days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent  that any Loan Party has not already indemnified the Administrative Agent for such Indemnified  Taxes  and  without  limiting  the  obligation  of  the  Loan  Parties  to  do  so)  and  (ii)  any  Taxes  attributable to such Lender’s failure to comply with the provisions of Section 10.6(c) relating to  the  maintenance  of  a  Participant  Register,  in  either  case,  that  are  payable  or  paid  by  the  Administrative  Agent  in  connection  with  any  Loan  Document,  and  any  reasonable  expenses  arising therefrom  or with  respect  thereto,  whether or not  such Taxes  were correctly or legally  imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of  such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive  absent manifest error.  Each Lender hereby authorizes the Administrative Agent to setoff and apply  any and all amounts at any time owing to such Lender under any Loan Document or otherwise  payable by the Administrative Agent to the Lender from any other source against any amount due  to the Administrative Agent under this paragraph (e).               (f)   (i)  Any  Lender  that  is  entitled  to  an  exemption  from  or  reduction  of  withholding Tax with respect to payments made under any Loan Document shall deliver to the  Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower  or the Administrative Agent, such properly completed and executed documentation reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent  as will enable the Borrower or the Administrative Agent to determine whether or not such Lender                                         65  509265-2041-31349836.23  





 






   is subject to backup withholding or information reporting requirements.  Notwithstanding anything  to the contrary in the preceding two sentences, the completion, execution and submission of such  documentation  (other  than  such  documentation  set  forth  in  Section  2.19(f)(ii)(A),  (ii)(B)  and  (ii)(D)  below)  shall  not  be  required  if  in  the  Lender’s  reasonable  judgment  such  completion,  execution or submission would subject such Lender to any material unreimbursed cost or expense  or would materially prejudice the legal or commercial position of such Lender.                     (ii)        Without limiting the generality of the foregoing, in the event                    that the Borrower is a U.S. Person,                           (A)   any Lender that is a U.S. Person shall deliver to the Borrower                                and  the  Administrative  Agent  on  or  prior  to  the  date  on                                which such Lender becomes a Lender under this Agreement                                (and from time to time thereafter upon the reasonable request                                of  the  Borrower  or  the  Administrative  Agent),  executed                                originals  of  IRS  Form  W-9 certifying that such  Lender is                                exempt from U.S. federal backup withholding tax;                           (B)   any Non-U.S. Lender shall, to the extent it is legally entitled                                to  do  so,  deliver  to  the  Borrower  and  the  Administrative                                Agent (in such number of copies as shall be requested by the                                recipient) on or prior to the date on which such Non-U.S.                                Lender becomes a Lender under this Agreement (and from                                time to  time thereafter upon the reasonable request  of the                                Borrower  or  the  Administrative  Agent),  whichever  of  the                                following is applicable:                                 (1)   in  the  case  of  a  Non-U.S.  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                                      originals  of  IRS  Form  W-8BEN  or  IRS  Form  W-                                     8BEN-E  establishing  an  exemption  from,  or                                      reduction of, U.S. federal withholding Tax pursuant                                      to the “interest” article of such tax treaty and (y) with                                      respect to any other applicable payments under any                                      Loan Document, IRS Form W-8BEN or IRS Form                                      W-8BEN-E  establishing  an  exemption  from,  or                                      reduction of, U.S. federal withholding Tax pursuant                                      to the “business profits” or “other income” article of                                      such tax treaty;                                 (2)   executed originals of IRS Form W-8ECI;                                 (3)   in  the  case  of  a  Non-U.S.  Lender  claiming  the                                      benefits of the exemption for portfolio interest under                                      Section  881(c)  of  the  Code,  (x)  a  certificate                                         66  509265-2041-31349836.23  





 






                                       substantially in the form of Exhibit H-1 to the effect                                      that such Non-U.S. Lender is not a “bank” within the                                      meaning of Section 881(c)(3)(A) of the Code, a “10                                      percent  shareholder”  of  the  Borrower  within  the                                      meaning of Section 881(c)(3)(B) of the Code, or a                                      “controlled foreign corporation” described in Section                                      881(c)(3)(C) of the Code (a “U.S. Tax Compliance                                      Certificate”) and (y) executed originals of IRS Form                                      W-8BEN or IRS Form W-8BEN-E; or                                 (4)   to the extent a Non-U.S. Lender is not the beneficial                                      owner,  executed originals of  IRS  Form  W-8IMY,                                      accompanied by IRS Form W-8ECI, IRS Form W-                                     8BEN,  IRS  Form  W-8BEN-E,   a  U.S.  Tax                                      Compliance Certificate substantially in the form of                                      Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or                                      other  certification  documents  from  each  beneficial                                      owner, as applicable; provided that if the Non-U.S.                                      Lender is  a  partnership  and  one  or  more  direct  or                                      indirect  partners  of  such  Non-U.S.  Lender  are                                      claiming the portfolio interest exemption, such Non-                                     U.S.  Lender  may  provide  a  U.S.  Tax  Compliance                                      Certificate substantially in the form of Exhibit H-4                                      on behalf of each such direct and indirect partner;                           (C)   any Non-U.S. Lender shall, to the extent it is legally entitled                                to  do  so,  deliver  to  the  Borrower  and  the  Administrative                                Agent (in such number of copies as shall be requested by the                                recipient) on or prior to the date on which such Non-U.S.                                Lender becomes a Lender under this Agreement (and from                                time to  time thereafter upon the reasonable request  of the                                Borrower or the Administrative Agent), executed originals                                of any other form prescribed by applicable law as a basis for                                claiming  exemption  from  or  a  reduction  in  U.S.  federal                                withholding  Tax,  duly  completed,  together  with  such                                supplementary  documentation  as  may  be  prescribed  by                                applicable law to permit the Borrower or the Administrative                                Agent to determine the withholding or deduction required to                                be made; and                           (D)   if a payment made to a Lender under any Loan Document                                would be subject to U.S. federal withholding Tax imposed                                by FATCA if such Lender were to fail to comply with the                                applicable  reporting  requirements  of  FATCA  (including                                those contained in Section 1471(b) or 1472(b) of the Code,                                as applicable), such Lender shall deliver to the Borrower and                                the Administrative Agent at the time or times prescribed by                                         67  509265-2041-31349836.23  





 






                                 law and at such time or times reasonably requested by the                                Borrower or the Administrative Agent such documentation                                prescribed  by  applicable  law  (including  as  prescribed  by                                Section 1471(b)(3)(C)(i) of the Code) and such additional                                documentation reasonably requested by the Borrower or the                                Administrative Agent as may be necessary for the Borrower                                and  the  Administrative  Agent  to  comply  with  their                                obligations under FATCA and to determine that such Lender                                has complied with such Lender’s obligations under FATCA                                or to determine the amount, if any, to deduct and withhold                                from such payment.  Solely for purposes of this clause (D),                                “FATCA” shall include any amendments made to FATCA                                after the Closing Date.               Each Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or  inaccurate in  any respect,  it shall update such form or certification or  promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do  so.               (g)   If any party determines, in its sole discretion exercised in good faith, that it  has received a refund of any Taxes as to which it has been indemnified pursuant to this Section  2.19 (including by the payment of additional amounts pursuant to this Section 2.19), it shall pay  to the indemnifying party an amount equal to such refund (but only to the extent of indemnity  payments made under this Section 2.19 with respect to the Taxes giving rise to such refund), net  of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest  (other than any interest paid by the relevant Governmental Authority with respect to such refund).   Such  indemnifying  party,  upon  the  request  of  such  indemnified  party,  shall  repay  to  such  indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest  or  other  charges  imposed  by  the  relevant  Governmental  Authority)  in  the  event  that  such  indemnified  party  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the  payment of which would place the indemnified party in a less favorable net after-Tax position than  the indemnified party would have been in if the indemnification payments or additional amounts  giving rise to such refund had never been paid.  This Section 2.19 shall not be construed to require  any indemnified party to make available its Tax returns (or any other information relating to its  Taxes that it deems confidential) to the indemnifying party or any other Person.               (h)   Each  party’s  obligations  under  this  Section  2.19  shall  survive  the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under the Loan Documents.               (i)   For purposes of this Section 2.19, the term “Lender” includes the Issuing  Lender and the term “applicable law” includes FATCA.                                          68  509265-2041-31349836.23  





 






               2.20  Indemnity.  The Borrower agrees to indemnify each Lender for, and to hold  each  Lender  harmless  from,  any  loss  or  expense  that  such  Lender  sustains  or  incurs  as  a  consequence  of  (a)  default  by  the  Borrower  in  making  a  borrowing  of,  conversion  into  or  continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in  accordance with the provisions of this Agreement, (b) default by the Borrower in making any  prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof  in  accordance  with  the  provisions  of  this  Agreement  or  (c)  the  making  of  a  prepayment  of  Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto.  Such  indemnification may include an amount equal to the excess, if any, of (i) the amount of interest  that would have accrued on the amount so prepaid, or not so borrowed, converted or continued,  for the period from the date of such prepayment or of such failure to borrow, convert or continue  to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue,  the Interest Period that would have commenced on the date of such failure) in each case at the  applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable  Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such  Lender)  that  would  have  accrued  to  such  Lender  on  such  amount  by  placing  such  amount  on  deposit  for  a  comparable  period  with  leading  banks  in  the  interbank  eurodollar  market.   A  certificate as to any amounts payable pursuant to this Section 2.20 submitted to the Borrower by  any Lender shall be conclusive in the absence of manifest error.  This covenant shall survive the  termination  of  this  Agreement  and  the  payment  of  the  Loans  and  all  other  amounts  payable  hereunder for nine months.               2.21  Change of Lending Office.  Each Lender agrees that, upon the occurrence  of any event giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it  will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations  of such Lender) to designate another lending office for any Loans affected by such event or to  assign  and  delegate  its  rights  and  obligations  hereunder  to  another  of  its  offices,  branches  or  Affiliates  with  the  object  of  avoiding  the  consequences  of  such  event; provided,  that  such  designation or assignment is made on terms that, in the sole judgment of such Lender, cause such  Lender and its lending offices to suffer no material economic, legal or regulatory disadvantage,  and provided, further,  that  nothing  in  this  Section  2.21  shall  affect  or  postpone  any  of  the  obligations of the Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a).               2.22  Replacement of Lenders.  The Borrower shall be permitted to replace any  Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a), (b)  becomes a Defaulting Lender or (c) does not consent to any proposed amendment, supplement,  modification, consent or waiver of any provision of this Agreement or any other Loan Document  that requires the consent of the Supermajority Lenders, each of the Lenders or each of the Lenders  affected  thereby  (so  long  as  the  consent  of  the  Required  Lenders  has  been  obtained),  with  a  replacement financial institution; provided that (i) such replacement does not conflict with any  Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of  such replacement, (iii) prior to any such replacement pursuant to the preceding clause (a), such  Lender shall have not eliminated the continued need for payment of amounts owing pursuant to  Section 2.18 or 2.19(a), (iv) the replacement financial institution shall purchase, at par, all Loans  and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the  Borrower shall be liable to such replaced Lender under Section 2.20 if any Eurodollar Loan owing  to such replaced Lender shall be purchased other than on the last day of the Interest Period relating                                         69  509265-2041-31349836.23  





 






   thereto, (vi) the replacement financial institution, if not already a Lender, an affiliate of a Lender  or an Approved Fund, shall be reasonably satisfactory to the Administrative Agent (in its capacity  as such), (vii) the replaced Lender shall be obligated to make such replacement in accordance with  the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration  and  processing  fee  referred  to  therein),  (viii)  until  such  time  as  such  replacement  shall  be  consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section  2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall not be deemed to be a  waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have  against the replaced Lender.  Each party hereto agrees that an assignment required pursuant to this  paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower,  the Administrative Agent and the assignee, and that the Lender required to make such assignment  need not be a party thereto in order for such assignment to be effective.               2.23  Defaulting Lenders.  Notwithstanding any provision of this Agreement to  the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply  for so long as such Lender is a Defaulting Lender:               (a)   fees shall cease to accrue on the unfunded portion of the Commitment of        such Defaulting Lender pursuant to Section 2.8(a);               (b)   the Commitment and Revolving Extensions of Credit of such Defaulting        Lender shall not be included in determining whether the Required Lenders have taken or        may take any action hereunder (including any consent to any amendment, waiver or other        modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the        vote of a Defaulting Lender in the case of an amendment, waiver or other modification        requiring the consent of such Lender or each Lender affected thereby;                (c)   if any L/C Exposure or Protective Advance Exposure exists at the time such        Lender becomes a Defaulting Lender then:                     (i)   all  or  any  part  of  the  L/C  Exposure and  Protective  Advance              Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting              Lenders in accordance with their respective Revolving Percentages but only to the              extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit plus              such Defaulting Lender’s L/C Exposure and Protective Advance Exposure does not              exceed the total of all non-Defaulting Lenders’ Commitments;                     (ii)  if the reallocation described in clause (i) above cannot, or can only              partially, be effected, the Borrower shall within one Business Day following notice              by the Administrative Agent (x) first, prepay such Protective Advance Exposure              and (y) second, cash collateralize for the benefit of the Issuing Lender only the              Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure              (after  giving  effect  to  any  partial  reallocation  pursuant  to  clause  (i)  above)  in              accordance  with  the  procedures  set  forth  in  Section  8  for  so  long  as  such  L/C              Exposure is outstanding;                                          70  509265-2041-31349836.23  





 






                     (iii) if the Borrower cash collateralizes any portion of such Defaulting              Lender’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be              required to pay any fees to such Defaulting Lender pursuant to Section 3.3(a) with              respect  to  such  Defaulting Lender’s  L/C  Exposure  during  the  period  such              Defaulting Lender’s L/C Exposure is cash collateralized;                     (iv)  if the L/C Exposure of the Defaulting Lender is reallocated pursuant              to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.8(a)              and Section 3.3(a) shall be adjusted in accordance with the non-Defaulting Lenders’              Revolving Percentages; and                     (v)   if all or any portion of such Defaulting Lender’s L/C Exposure is              neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,              without  prejudice  to  any  rights  or  remedies  of  the  Issuing  Lender  or  any  other              Lender  hereunder,  all  fees  payable  under  Section  3.3(a)  with  respect  to  such              Defaulting Lender’s L/C Exposure shall be payable to the Issuing Lender until and              to the extent that such L/C Exposure is reallocated and/or cash collateralized; and               (d)   so long as such Lender is a Defaulting Lender, the Issuing Lender shall not        be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the        related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100%        covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be        provided by the Borrower in accordance with Section 2.23(c), and participating interests        in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting        Lenders in a manner consistent with Section 2.23(c)(i) (and such Defaulting Lender shall        not participate therein).               If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur  following the Closing Date and for so long as such event shall continue or (ii) the Issuing Lender  has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more  other agreements in which such Lender commits to extend credit, the Issuing Lender shall not be  required to issue, amend or increase any Letter of Credit, unless the Issuing Lender, as the case  may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to  the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.               In the event that the Administrative Agent, the Borrower and the Issuing Lender  each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender  to be a Defaulting Lender, then the L/C Exposure and Protective Advance Exposure of the Lenders  shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such  Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent  shall determine may be necessary in order for such Lender to hold such Loans in accordance with  its Revolving Percentage.               2.24  Incremental  Facilities.  (a)  The  Borrower  and  any  one  or  more  Lenders  (including New Lenders) may from time to time agree that such Lenders shall make, obtain or  increase  the  amount  of  their  Commitments  (any  such  new  or  increased  Commitments,  “Incremental  Commitments”)  by  executing and  delivering  to  the  Administrative  Agent  an                                         71  509265-2041-31349836.23  





 






   Increased Facility Activation Notice specifying (x) the amount of such Incremental Commitments  and (y) the applicable Increased Facility Closing Date (which shall be a date not less than five (5)  Business Days after the date on which such notice is delivered to the Administrative Agent (or  such earlier date as shall be agreed by the Administrative Agent)); provided that (i) with respect  to  any  Increased  Facility  Closing  Date,  the  Incremental  Commitments  shall  be  in  a  minimum  amount of $10,000,000 and (ii) the aggregate amount of Incremental Commitments obtained after  the Closing Date pursuant to this Section 2.24 shall not exceed $100,000,000.  No Lender shall  have any obligation to participate in any increase described in this paragraph unless it agrees to do  so in its sole discretion, and the Borrower shall have no obligation to offer to any Lender the  opportunity to so participate.               (b)   Any additional bank, financial institution or other entity which, with the  consent of the Borrower, the Issuing Lender and the Administrative Agent (which consent shall  not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection  with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each,  a “New  Lender Supplement”), substantially in  the form  of Exhibit  I-2, whereupon such bank,  financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and  to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits  of this Agreement.               (c)   Unless otherwise agreed or otherwise directed by the Administrative Agent,  on each Increased Facility Closing Date, the Administrative Agent shall (i) effect a settlement of  all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Total  Commitments of the applicable Lenders as a result of the Incremental Commitments and (ii) notify  the Lenders of the occurrence of the Incremental Commitments to be effected on the Increased  Facility Closing Date.               (d)   It  shall  be  a  condition  precedent  to  the  availability  of  any  Incremental  Commitments  that  (i)  no  Default  or  Event  of  Default  shall  have  occurred  and  be  continuing  immediately  prior  to  and  immediately  after  giving  effect  to  the  making  of  such  Incremental  Commitments, (ii) the representations and warranties set forth in each Loan Document shall be  true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of  the Increased Facility Closing Date immediately prior to and immediately after giving effect to the  making of such Incremental Commitments, except to the extent expressly made as of an earlier  date, in which case they shall be so true and correct as of such earlier date, (iii) the Borrower shall  have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s  certificate and other documents, in each case consistent with those delivered on the Closing Date,   as shall be reasonably requested by the Administrative Agent in connection with any Incremental  Commitments  and  (iv)  the  Consolidated  Fixed  Charge  Coverage  Ratio  for  the  Applicable  Reference Period, calculated on a Pro Forma Basis as of the Increased Facility Closing Date, shall  be greater than 1.10:1.00.               (e)   On each Increased Facility Closing Date, the fixed dollar portions of any  Availability-based  thresholds  hereunder  shall  be  increased  by  an  amount  proportional  to  the  increase, if any, in the Total Commitments above the Total Commitments in effect on the Closing  Date effected by the Incremental Commitments on such Increased Facility Closing Date.                                          72  509265-2041-31349836.23  





 






                           SECTION 3.  LETTERS OF CREDIT               3.1   L/C  Commitment.  (a)  Subject  to  the  terms  and  conditions hereof,  the  Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section  3.4(a), agrees to issue letters of credit (“Letters of Credit”) during the Revolving Commitment  Period for the account of the Borrower on any Business Day during the Revolving Commitment  Period in such form as may be approved from time to time by the Issuing Lender; provided that  the Issuing Lender shall not issue any Letter of Credit if, after giving effect to such issuance, the  Total Revolving Extensions of Credit would exceed the Line Cap, subject to the authority of the  Administrative Agent, in its sole discretion, to make Protective Advances pursuant to the terms of  Section 2.3.  Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than  the earlier of (x) the first anniversary of its date of issuance (or such longer period as agreed to by  the applicable Issuing Lender in its sole discretion) and (y) unless such Letter of Credit has been  cash collateralized or other arrangements backstopping such Letter of Credit have been made, in  each case, reasonably satisfactory to the Issuing Lender, the date that is five Business Days prior  to the Revolving Termination Date, provided that any Letter of Credit with a one-year term may  provide for the renewal thereof for additional one-year periods (which shall in no event extend  beyond  the  date  referred  to  in  clause  (y)  above  unless  such  Letter  of  Credit  has  been  cash  collateralized or other arrangements backstopping such Letter of Credit have been made, in each  case, reasonably satisfactory to the Issuing Lender).               (b)   The Issuing Lender shall not at any time be obligated to issue any Letter of  Credit  if  the  issuance  of  such  Letter  of  Credit  would  (i) result  in  such  Issuing  Lender’s  L/C  Obligations exceeding such Lender’s L/C Commitment, (ii) violate one or more policies of the  Issuing Lender applicable to letters of credit generally or (iii) conflict with, or cause the Issuing  Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of  Law. Without limiting the foregoing and without affecting the limitations contained herein, it is  understood and agreed that the Borrower may from time to time request that an Issuing Lender  issue Letters of Credit in excess of such Issuing Lender’s L/C Commitment in effect at the time of  such request, and each Issuing Lender agrees to consider any such request in good faith.  Any  Letter of Credit so issued by an Issuing Lender in excess of its L/C Commitment then in effect  shall nonetheless constitute a Letter of Credit for all purposes of this Agreement, and shall not  affect the L/C Commitment of any other Issuing Lender.               (c)   The  parties  hereto  agree  that  (i)  the  Existing  Letters  of  Credit  shall  be  deemed to be Letters of Credit for all purposes under this Agreement, without any further action  by the Borrower, the Issuing Lender or any other Person and (ii) the extension or renewal of the  Existing  Letters  of  Credit  by  JPMCB  (other  than  the  Specified  Letter  of  Credit)  shall  not  be  permitted if after giving effect to such renewal or extension, the aggregate face amount of Letters  of Credit issued by JPMCB would exceed JPMCB’s L/C Commitment.               3.2   Procedure for Issuance of Letter of Credit.  The Borrower may from time to  time  request  that  the  Issuing  Lender  issue  a  Letter  of  Credit  (or  the  amendment,  renewal  or  extension of an outstanding Letter of Credit) by delivering to the Issuing Lender at its address for  notices  specified  herein,  with  a  copy  to  the  Administrative  Agent,  an  Application  therefor,  completed  to  the  reasonable  satisfaction  of  the  Issuing  Lender,  and  such  other  certificates,  documents and other papers and information as the Issuing Lender may reasonably request.  Upon                                         73  509265-2041-31349836.23  





 






   receipt of any Application, the Issuing Lender will process such Application and the certificates,  documents and other papers and information delivered to it in connection therewith in accordance  with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but  in no event shall the Issuing Lender be required to issue, amended, renew or extend any Letter of  Credit earlier than three Business Days after its receipt of the Application therefor and all such  other certificates, documents and other papers and information relating thereto) by issuing the  original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by the  Issuing Lender and the Borrower.  The Issuing Lender shall furnish a copy of such Letter of Credit  to  the  Borrower  promptly  following the  issuance  thereof.   The  Issuing  Lender  shall  promptly  furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of  the issuance of each Letter of Credit (including the amount thereof).               3.3   Fees and Other Charges.  (a)  The Borrower will pay a fee on all outstanding  Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to  Revolving  Loans  that are Eurodollar  Loans,  shared ratably among the Revolving  Lenders and  payable quarterly in arrears on each Fee Payment Date after the issuance date.  In addition, the  Borrower shall pay to the Issuing Lender for its own account a fronting fee of 0.125% per annum  on the undrawn and unexpired amount of each Letter of Credit, payable quarterly in arrears on  each Fee Payment Date after the issuance date.               (b)   In addition to the foregoing fees, the Borrower shall pay or reimburse the  Issuing Lender for such normal and customary costs and expenses as are incurred or charged by  the  Issuing  Lender  in  issuing,  negotiating,  effecting  payment  under,  amending  or  otherwise  administering any Letter of Credit.               3.4   L/C Participations.  (a)  The Issuing Lender irrevocably agrees to grant and  hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit,  each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases  from the Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s  own account and risk an undivided interest equal to such L/C Participant’s Revolving Percentage  in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit and the  amount of each draft paid by the Issuing Lender thereunder.  Each L/C Participant agrees with the  Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not  reimbursed in full by the Borrower in accordance with the terms of this Agreement (or in the event  that any reimbursement received by the Issuing Lender shall be required to be returned by it at any  time), such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing Lender’s  address  for  notices  specified  herein  an  amount  equal  to  such  L/C  Participant’s  Revolving  Percentage of the amount that is not so reimbursed (or is so returned).  Each L/C Participant’s  obligation to pay such amount shall be absolute and unconditional and shall not be affected by any  circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such  L/C Participant may have against the Issuing Lender, the Borrower or any other Person for any  reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the  failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the  condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other  Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any  other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.                                         74  509265-2041-31349836.23  





 






               (b)   If  any  amount required to be paid  by  any L/C Participant to  the  Issuing  Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by  the  Issuing  Lender  under  any  Letter  of  Credit  is  not  paid  to  the  Issuing  Lender  within  three  Business Days after the date such payment is due, such L/C Participant shall pay to the Issuing  Lender on demand an amount equal to the product of (i) such amount, times (ii) the greater of (x)  the daily average NYFRB Rate during the period from and including the date such payment is  required to the date on which such payment is immediately available to the Issuing Lender and (y)  a  rate  determined  by  the  Administrative  Agent  in  accordance  with  banking  industry  rules  on  interbank compensation, times (iii) a fraction the numerator of which is the number of days that  elapse during such period and the denominator of which is 360.  If any such amount required to be  paid by any L/C Participant pursuant to Section 3.4(a) is not made available to the Issuing Lender  by such L/C Participant within three Business Days after the date such payment is due, the Issuing  Lender  shall  be  entitled  to  recover  from  such  L/C  Participant,  on  demand,  such  amount  with  interest thereon calculated from such due date at the rate per annum applicable to the Alternate  Base Rate plus the Applicable Margin.  A certificate of the Issuing Lender submitted to any L/C  Participant with respect to any amounts owing under this Section shall be conclusive in the absence  of manifest error.               (c)   Whenever, at any time after the Issuing Lender has made payment under  any Letter of Credit and has received from any L/C Participant its pro rata share of such payment  in accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter  of  Credit  (whether  directly  from  the Borrower  or  otherwise,  including  proceeds  of  Collateral  applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing  Lender will distribute to such L/C Participant its pro rata share thereof; provided, however, that in  the event that any such payment received by the Issuing Lender shall be required to be returned by  the Issuing Lender, such L/C Participant shall return to the Issuing Lender the portion thereof  previously distributed by the Issuing Lender to it.               3.5   Reimbursement Obligation of the Borrower.  If any draft is paid under any  Letter of Credit, the Borrower shall reimburse the Issuing Lender for the amount of (a) the draft  so paid and (b) any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender  in connection with such payment, not later than 2:00 p.m., New York City time, on the Business  Day immediately following the Business Day that the Borrower receives notice of such draft.  Each  such payment shall be made to the Issuing Lender at its address for notices referred to herein in  Dollars and in immediately available funds.  Interest shall be payable on any such amounts from  the date on which the relevant draft is paid until payment in full at the rate set forth in (x) until the  Business Day next succeeding the date of the relevant notice, Section 2.14(b) and (y) thereafter,  Section 2.14(c).               3.6   Obligations  Absolute.   The  Borrower’s  obligations  under  this  Section  3  shall be absolute, unconditional and irrevocable under any and all circumstances and irrespective  of any setoff, counterclaim or defense to payment that the Borrower may have or have had against  the Issuing Lender, any beneficiary of a Letter of Credit or any other Person.  The Borrower also  agrees  with  the  Issuing  Lender  that  the  Issuing  Lender  shall  not  be  responsible  for,  and  the  Borrower’s Reimbursement Obligations under Section 3.5 shall not be affected by, among other  things, (a) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any  term  or  provision  therein,  (b) any  draft  or  other  document  presented  under  a  Letter  of  Credit                                         75  509265-2041-31349836.23  





 






   proving to be invalid, fraudulent or forged in any respect or any statement therein being untrue or  inaccurate in any respect, (c) any dispute between or among the Borrower and any beneficiary of  any Letter of Credit or any other party to which such Letter of Credit may be transferred or any  claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such  transferee, (d) payment by the Issuing Lender under a Letter of Credit against presentation of a  draft or other document that does not comply with the terms of such Letter of Credit, or (e) any  other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might,  but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right  of setoff against, the Borrower's obligations hereunder. The Issuing Lender shall not have any  liability or responsibility by reason of or in connection with the issuance or transfer of any Letter  of Credit or any payment or failure to make any payment thereunder (irrespective of any of the  circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or  delay in transmission or delivery of any draft, notice or message or advice, however transmitted,  in  connection  with  any  Letter  of  Credit (including  any  document  required  to  make  a  drawing  thereunder), any error in interpretation of technical terms or any consequence arising from causes  beyond the control of the Issuing Lender; provided that the foregoing shall not be construed to  excuse the Issuing Lender from liability to the Borrower to the extent of any direct damages (as  opposed to special, indirect, consequential or punitive damages, claims in respect of which are  hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower  that are caused by the Issuing Lender's failure to exercise care when determining whether drafts  and other documents presented under a Letter of Credit comply with the terms thereof.  The parties  hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on  the part of the Issuing Lender (as finally determined by a court of competent jurisdiction), the  Issuing Lender shall be deemed to have exercised care in each such determination.  In furtherance  of the foregoing and without limiting the generality thereof, the parties agree that, with respect to  documents presented which appear on their face to be in substantial compliance with the terms of  a Letter of Credit, the Issuing Lender may, in its sole discretion, either accept and make payment  upon such documents without responsibility for further investigation, regardless of any notice or  information to the contrary, or refuse to accept and make payment upon such documents if such  documents are not in strict compliance with the terms of such Letter of Credit.               3.7   Letter of Credit Payments.  If any draft shall be presented for payment under  any Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the Administrative  Agent of the date and amount thereof; provided that any failure to give or delay in giving such  notice shall not relieve the Borrower of its obligation to reimburse the Issuing Lender and the  Revolving Lenders pursuant to Section 3.5.               3.8   Applications.  To the extent that any provision of any Application related to  any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this  Section 3 shall apply.                  SECTION 4.  REPRESENTATIONS AND WARRANTIES               To induce the Administrative Agent and the Lenders to enter into this Agreement  and  to  make  the  Loans  and  issue  or  participate  in  the  Letters  of  Credit,  the  Borrower  hereby  represents and warrants to the Administrative Agent and each Lender that:                                          76  509265-2041-31349836.23  





 






               4.1   Financial  Condition.  (a)  The  unaudited  pro  forma  consolidated  balance  sheet and related pro forma consolidated statement of income of the Borrower and its consolidated  Restricted Subsidiaries as of and for the 12 months ended September 30, 2019 (the “Pro Forma  Financial  Statements”),  copies  of  which  have  heretofore  been  furnished  to  the  Administrative  Agent, have been prepared giving effect (as if such events had occurred on such date (in the case  of the balance sheet) or at the beginning of such period (in the case of the statement of income))  to the consummation of the Transactions and the payment of fees and expenses in connection  therewith and the settlement entered into in connection with the Vintage Capital Merger and the  termination thereof.  The Pro Forma Financial Statements have been prepared in good faith and  are based on assumptions believed by the Borrower to be reasonable as of the date of delivery  thereof, and present fairly in all material respects on a pro forma basis the estimated financial  condition and results of operations of Borrower and its consolidated Restricted Subsidiaries as of  and for the 12 months ended at September 30, 2019, assuming that the events specified in the  preceding  sentence  had  actually  occurred  at  such  date  or  at  the  beginning  of  such  period,  as  applicable.                (b)   The audited consolidated balance sheet of the Borrower and its consolidated  Restricted  Subsidiaries  as  at  December  31,  2018,  and  the  related  consolidated  statements  of  income, stockholders’ equity and cash flows for the fiscal year ended on such date, reported on by  and accompanied by an unqualified report from KPMG LLP, present fairly, in all material respects,  the consolidated financial condition of the Borrower and its consolidated Restricted Subsidiaries  as at such date, and the consolidated results of its operations and its consolidated cash flows for  the fiscal  year then ended.  The unaudited consolidated balance sheet of the Borrower and its  consolidated Restricted Subsidiaries as at March 31, 2019, and the related unaudited consolidated  statement of income, stockholders’ equity and cash flow for the three-month period ended on such  date, present fairly, in all material respects, the consolidated financial condition of the Borrower  and its consolidated Restricted Subsidiaries as  at such date, and the consolidated results of its  operations and its consolidated cash flow for the three-month period then ended (subject to normal  year-end audit adjustments and the absence of footnotes). All such financial statements, including  the related schedules and notes thereto, have been prepared in accordance with GAAP applied  consistently throughout the periods involved (except as approved by the aforementioned firm of  accountants and disclosed therein), except that the interim financial statements are subject to year- end adjustments and the absence of footnotes.               4.2   No Change.  Since December 31, 2018, there has been no development or  event that has had or would reasonably be expected to have a Material Adverse Effect.               4.3   Existence;  Compliance  with  Law.   Each  Group  Member  (a)  is  duly  organized or formed, validly existing and in good standing under the laws of the jurisdiction of its  organization, (b) has the corporate or similar organizational power and authority, and the legal  right, to own and operate its property, to lease the property it operates as lessee and to conduct the  business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other  organization and in good standing under the laws of each jurisdiction where its ownership, lease  or operation of property or the conduct of its business requires such qualification, except where  the failure to be so qualified and in  good standing would not, in the aggregate, reasonably be  expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law                                         77  509265-2041-31349836.23  





 






   except to the extent that the failure to comply therewith would not, in the aggregate, reasonably be  expected to have a Material Adverse Effect.               4.4   Power; Authorization; Enforceable Obligations.  (a)  Each Loan Party has  the corporate or similar organizational power and authority, and the legal right, to make, deliver  and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain  extensions  of  credit  hereunder.   Each  Loan  Party  has  taken  all necessary  corporate  or  similar  organizational action to authorize the execution, delivery and performance of the Loan Documents  to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the  terms  and  conditions  of  this  Agreement.   Each  Loan  Document  has  been  duly  executed  and  delivered on behalf of each Loan Party party thereto.  This Agreement constitutes, and each other  Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan  Party party thereto, enforceable against each such Loan Party in accordance with its terms, except  as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium  or similar laws affecting the enforcement of creditors’ rights generally and by general equitable  principles (whether enforcement is sought by proceedings in equity or at law).               (b)   No consent or authorization of, filing with, notice to or other act by or in  respect of, any Governmental Authority or any other Person is required in connection with the  extensions  of  credit  hereunder  or  with  the  execution,  delivery,  performance,  validity  or  enforceability  of  this  Agreement  or  any  of  the  Loan  Documents,  except  (i)  consents,  authorizations, filings and notices that have been obtained or made and are in full force and effect,  (ii) the filings referred to in Section 4.19, (iii) filings with the SEC that may be required to be made  following the execution and delivery hereof in connection herewith and (iv) immaterial consents,  authorizations, filings and notices.                 4.5   No Legal Bar.  The execution, delivery and performance of this Agreement  and the other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and  the  use  of  the  proceeds  thereof  will  not  violate any  Requirement  of  Law  or  any  Contractual  Obligation  of  any  Group  Member,  except  (other  than  with  respect  to  such  Group  Member’s  Organizational Documents) for violations that would not reasonably be expected to have a Material  Adverse Effect, and will not result in, or require, the creation or imposition of any Lien on any of  their  respective  properties  or  revenues  pursuant  to  any  Requirement  of  Law  or  any  such  Contractual Obligation (other than the Liens created by the Security Documents).                 4.6   Litigation.  No  litigation,  investigation  or  proceeding  of  or  before  any  arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened  by or against any Group Member or against any of their respective properties or revenues (a) with  respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby,  or (b) that would reasonably be expected to have a Material Adverse Effect.               4.7   No Default.  No Group Member is in default under or with respect to any  of its Contractual Obligations in any respect that would reasonably be expected to have a Material  Adverse Effect.  No Default or Event of Default has occurred and is continuing.               4.8   Ownership of Property; Liens.  Each Group Member has title in fee simple  to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest                                         78  509265-2041-31349836.23  





 






   in,  all  its  other  property  (except  where  the  failure  to  have  such  title  would  not  reasonably  be  expected to have a Material Adverse Effect), and none of such property is subject to any Lien  except as permitted by Section 7.3.               4.9   Intellectual  Property.   Except  as  would  not  reasonably  be  expected,  individually or in the aggregate, to have a Material Adverse Effect, (i) each Group Member owns  or otherwise has a valid right to use all Intellectual Property material to the conduct of its business  as currently conducted, free and clear of all Liens, except as permitted by Section 7.3, and any  such  Intellectual  Property  that  is  owned  by  any  Group  Member  and  registered  with any  Governmental Authority is subsisting, unexpired and, to the knowledge of each Group Member,  valid and enforceable; (ii) the use thereof and the conduct of the business of each of the Group  Members does not infringe upon or otherwise violate the rights of any Person; and (iii) no Group  Member has, within the past three years, received any material written claim in which any Person  challenged  the  use  of  any  Intellectual  Property  by  any  Group  Member,  or  the  validity  or  effectiveness of any Intellectual Property owned by any Loan Party, nor does the Borrower know  of any valid basis for any such material claim.               4.10  Taxes.  Each Group Member has filed or caused to be filed all federal, state  and other material Tax returns that are required to be filed and has paid all Taxes shown to be due  and payable on said returns or on any assessments made against it or any of its property and all  other  Taxes,  fees  or  other  charges  imposed  on  it  or  any  of  its  property  by  any  Governmental  Authority (other than (i) the amount or validity of which are currently being contested in good  faith by appropriate proceedings and with respect to which reserves in conformity with GAAP  have been provided on the books of the relevant Group Member, or (ii) to the extent that the failure  to file or pay, individually or in the aggregate, would not reasonably be expected to have a Material  Adverse Effect).               4.11  Federal Regulations.  No part of the proceeds of any Borrowing hereunder  will be used for “buying” or “carrying” any Margin Stock within the respective meanings of each  of the quoted terms under Regulation U as now and from time to time hereafter in effect except in  compliance with the provisions of the regulations of the Board.                 4.12  Labor  Matters.   Except  as,  in  the  aggregate,  would  not  reasonably  be  expected to have a Material Adverse Effect:  (a) there are no strikes or other labor disputes against  any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked  by and payment made to employees of each Group Member have not been in violation of the Fair  Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and  (c)  all  payments  due  from  any  Group  Member  on  account  of  employee  health  and  welfare  insurance have been paid or accrued as a liability on the books of the relevant Group Member.                4.13  ERISA.  Except as would not reasonably be expected, individually or in the  aggregate, to have a Material Adverse Effect: (a) each Group Member and each of their respective  ERISA  Affiliates  (and  in  the case  of  a  Pension  Plan  or  a  Multiemployer  Plan,  each  of  their  respective ERISA Affiliates) are in compliance with all applicable provisions and requirements of  ERISA  and  the  Code  and  other  federal  and  state  laws  and  the  regulations  and  published  interpretations thereunder with respect to each Plan and Pension Plan and have performed all their  obligations under each Plan and Pension Plan; (b) no ERISA Event or Foreign Plan Event has                                         79  509265-2041-31349836.23  





 






   occurred or is reasonably expected to occur, and no ERISA Affiliate is aware of any fact, event or  circumstance that could reasonably be expected to constitute or result in an ERISA Event; (c) each  Plan or Pension Plan which is intended to qualify under Section 401(a) of the Code has received a  favorable determination letter from the IRS indicating that such Plan or Pension Plan is so qualified  and the trust related thereto has been determined by the Internal Revenue Service to be exempt  from  federal  income  tax  under  Section  501(a)  of  the  Code  or  an  application  for  such  a  determination is currently pending before the Internal Revenue Service and, to the knowledge of  the Borrower, nothing has occurred subsequent to the issuance of the most recent determination  letter which would cause such Plan or Pension Plan to lose its qualified status; (d) no liability to  the PBGC (other than required premium payments), the IRS, any Plan or Pension Plan or any trust  established under Title IV of ERISA has been or is expected to be incurred by any Group Member  or any of their ERISA Affiliates; (e) each of the Group Members’ ERISA Affiliates has complied  with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and is  not  in  “default”  (as  defined  in  Section  4219(c)(5)  of  ERISA)  with  respect  to  payments  to  a  Multiemployer Plan; (f) all amounts required by applicable law with respect to, or by the terms of,  any retiree welfare benefit arrangement maintained by any Group Member or any ERISA Affiliate  or to which any Group Member or any ERISA Affiliate has an obligation to contribute have been  accrued in accordance with ASC Topic 715-60; (g) as of the most recent valuation date for each  Multiemployer Plan for which the actuarial report is available, no Group Member nor any of their  respective  ERISA  Affiliates  has  any  potential liability  for  a  complete  withdrawal  from  such  Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such  potential liability for a complete withdrawal from all Multiemployer Plans, based on information  available pursuant to Section 4221(e) of ERISA; (h) there has been no Prohibited Transaction or  violation of the fiduciary responsibility rules with respect to any Plan or Pension Plan that has  resulted or would reasonably be expected to result in a Material Adverse Effect; and (i) neither  any Group Member nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied  obligation to contribute to, or liability under, any active or terminated Pension Plan other than (i)  on the Closing Date, those listed on Schedule 4.13 hereto and (ii) thereafter, Pension Plans not  otherwise prohibited by this Agreement.  The present value of all accumulated benefit obligations  under each Pension Plan, did not, as of the close of its most recent plan year, exceed by more than  $10,000,000 the fair market value of the assets of such Pension Plan allocable to such accrued  benefits (determined in both cases using the applicable assumptions under Section 430 of the Code  and the Treasury Regulations promulgated thereunder), and the present value of all accumulated  benefit obligations of all underfunded Pension Plans did not, as of the date of the most recent  financial statements reflecting such amounts, exceed by more than $10,000,000 the fair market  value of the assets of all such underfunded Pension Plans (determined in both cases using the  applicable assumptions under Section 430 of the Code and the Treasury Regulations promulgated  thereunder).               4.14  Investment  Company  Act;  Other  Regulations.   No  Loan  Party  is  an  “investment company” within the meaning of the Investment Company Act of 1940, as amended.               4.15  Subsidiaries; Capital Stock.  As of the Closing Date, (a) Schedule 4.15 sets  forth the name and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary,  the  percentage  of each  class  of  Capital  Stock  owned  by  any  Loan  Party  and  (b)  there  are  no  outstanding subscriptions,  options,  warrants,  calls,  rights or other  agreements  or commitments  (other than stock options and restricted stock units granted to employees or directors and directors’                                         80  509265-2041-31349836.23  





 






   qualifying shares) of any nature relating to any Capital Stock of the Borrower or any Restricted  Subsidiary,  except  (i)  with  respect  to  Capital  Stock  of  Loan  Parties,  as  created  by  the  Loan  Documents or the Term Loan Documents and (ii) otherwise, as permitted by this Agreement.               4.16  Use of Proceeds.  The proceeds of the Revolving Loans and the Letters of  Credit  will  be  used  for  general  corporate  purposes  (including  Restricted  Payments,  Permitted  Acquisitions,  other  Investments,  the  Existing  Indebtedness  Refinancing  and  paying  fees  and  expenses in connection with the execution and delivery of this Agreement, and other uses not  prohibited by this Agreement).               4.17  Environmental Matters.  Except as, individually or in the aggregate, would  not reasonably be expected to have a Material Adverse Effect:               (a)   Materials of Environmental Concern are not present at, on, under, in, or        about any real property now or formerly owned, leased or operated by any Group Member        or at any other location (including, without limitation, any location to which Materials of        Environmental Concern have been sent for re-use or recycling or for treatment, storage, or        disposal), in amounts or concentrations or under circumstances that constitute a violation        of,  or  would  reasonably  be expected  to  give  rise  to  liability  on  the  part  of  any  Group        Member under, any Environmental Law;               (b)   no  Group  Member  has  received  or  is  aware  of  any  notice  of  violation,        alleged violation, non-compliance, liability or potential liability under or relating to any        Environmental Law, nor does the Borrower have knowledge or reason to believe that any        such notice will be received or is being threatened;               (c)   no  judicial,  arbitral,  governmental  or  administrative  litigation,        disclosed-investigation  or  similar  proceeding  is pending  or,  to  the  knowledge  of  the        Borrower, threatened, under any Environmental Law to which any Group Member is or        will  be  named  as  a  party,  nor  has  any  Group  Member  entered  into  or  agreed  to  any        settlements, consent decrees or other decrees, consent orders, administrative orders or other        orders,  or  other  administrative  or  judicial  agreements  relating  to  compliance  with  or        liability under any Environmental Law that have not been fully and finally resolved;               (d)   each  Group  Member  is  in  compliance,  and  within the  period  of  all        applicable statutes of limitation has been in compliance, with all applicable Environmental        Laws; and               (e)   no Group Member has assumed or retained, by or as a result of any contract        or other agreement, any liability of any other Person under Environmental Laws or with        respect to any Material of Environmental Concern.               4.18  Accuracy  of  Information,  etc.  All  written  information  (other  than  projections,  pro  forma  financial  information,  financial  estimates,  forecasts,  forward-looking  information and information of a general or economic nature) furnished by or on behalf of any  Loan Party to the Administrative Agent or the Lenders, or any of them, for use in connection with  the transactions contemplated by this Agreement or the other Loan Documents, does not (taken as  a whole) contain, as of the date such statements, information, documents or certificates were so                                         81  509265-2041-31349836.23  





 






   furnished, any untrue statement of a material fact or omit to state a material fact necessary to make  the  statements  contained  therein  (taken  as a  whole)  not  materially  misleading  in  light  of  the  circumstances so made.  The projections and pro forma financial information contained in the  materials  referenced  above  are  based  upon  good  faith  estimates  and  assumptions  believed  by  management of the Borrower to be reasonable at the time made, it being recognized by the Lenders  that such projections and financial information as they relate to future events are not to be viewed  as fact and that actual results during the period or periods covered by such financial information  may differ from the projected results set forth therein and such difference may be material.                 4.19  Security Documents.  The Guarantee and Collateral Agreement is effective  to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid  and enforceable security interest in the Collateral described therein and the proceeds thereof.  In  the case of the Pledged Collateral (as defined in the Guarantee and Collateral Agreement), when  such  Pledged  Collateral is  delivered  (in  accordance  with  the  Intercreditor  Agreement)  to  the  Administrative Agent or the Term Loan Administrative Agent (together with a properly completed  and signed undated endorsement), in the case of Collateral consisting of Deposit Accounts, when  such Deposit Accounts are subject to a Deposit Account Control Agreement, and in the case of the  other Collateral described in the Guarantee and Collateral Agreement that can be perfected by the  filing of a financing statement or other filing, when financing statements and other filings specified  on  Schedule  4.19  in  appropriate  form  are  filed  in  the  offices  specified  on  Schedule  4.19,  the  Administrative Agent will have, for the benefit of the Secured Parties, a fully perfected Lien on,  and security interest in, all right, title and interest of the Loan Parties in such Collateral and the  proceeds  thereof,  as  security  for  the  Obligations  (as  defined  in  the  Guarantee  and  Collateral  Agreement), in each case prior and superior in right to the Lien of any other Person (except  Liens  permitted by Section 7.3).               4.20  Solvency.   As  of  the  Closing  Date  and  after  giving  effect  to  the  Transactions, the Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent.               4.21  Senior  Indebtedness.  The  Obligations,  and  the  obligations  of  each  Subsidiary Guarantor under the Guarantee and Collateral Agreement, constitute “senior debt” or  “senior indebtedness” (or any comparable term) under all Indebtedness that is subordinated or  required to be subordinated in right of payment to the Obligations (if applicable).                4.22  [Reserved].               4.23  Anti-Corruption  Laws,  Anti-Money  Laundering  and  Sanctions.  The  Borrower has implemented and maintains in effect policies and procedures designed to ensure  compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees  and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries  and their respective officers and directors and to the knowledge of the Borrower its employees and  agents,  are  in  compliance  with  Anti-Corruption Laws  and  applicable  Sanctions  in  all  material  respects.  Neither the Borrower nor any Subsidiary of the Borrower, nor, to their knowledge, any  of their respective directors, officers, or employees, is a Sanctioned Person. The Loan Parties will  not  directly  use  the  proceeds  of  any  Loans  to  violate  any  Anti-Corruption  Law  or  applicable  Sanctions.                                          82  509265-2041-31349836.23  





 






               4.24  EEA Financial Institutions.  No Loan Party is an EEA Financial Institution.                         SECTION 5.  CONDITIONS PRECEDENT               5.1   Conditions to Initial Extension of Credit.  The agreement of each Lender to  make the Commitments available and make the initial extension of credit requested to be made by  it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit  on the Closing Date, of the following conditions precedent:               (a)   Loan Documents.  The Administrative Agent shall have received (i) this        Agreement, executed and delivered by the Administrative Agent, the Borrower and each        Person listed on Schedule 1.1, (ii) the Guarantee and Collateral Agreement, executed and        delivered  by  the  Borrower  and  each  Subsidiary  Guarantor  and  (iii)  the  Intercreditor        Agreement, executed and delivered by the Administrative Agent, the Borrower and each        Person party thereto.                 (b)   Other Indebtedness.                      (i)   The Administrative Agent shall have received evidence reasonably              satisfactory  to  it  that  on  or  prior  to  the  Closing  Date  the  Term  Loan  Credit              Agreement is in full force and effect and the Borrower has received Term Loans in              an aggregate principal amount at least equal to $200,000,000 thereunder.                     (ii)  Prior to or substantially concurrently with the initial extensions of              credit under this Agreement on the Closing Date, (A) all existing Indebtedness of              the  Borrower  and  its  Subsidiaries  under  the  (x)  Credit  Agreement,  dated  as  of              March  19,  2014  (as  amended,  restated,  amended  and  restated,  modified  or              supplemented prior to the date hereof), among the Borrower, the several banks and              other  financial  institutions  or  entities  from  time  to  time  party  thereto,  the  co-             syndication  agents  and  co-documentation  agents  named  therein,  and  JPMorgan              Chase Bank, N.A., as administrative agent, (y) Senior Notes Indenture, dated as of              November 2, 2010 (as amended, modified or supplemented prior to the date hereof),              among  the  Borrower,  the  guarantors  party  thereto  and  The  Bank  of  New  York              Melon Trust Company, N.A., as trustee and (z) Senior Notes Indenture, dated as of              May 2, 2013, (as amended, modified or supplemented prior to the date hereof),              among  the  Borrower,  the  guarantors  party thereto  and  The  Bank  of  New  York              Melon Trust Company, N.A., as trustee, shall in each case have been repaid in full              and,  if  applicable,  the  commitments  thereunder  terminated  therewith  (such              repayment and termination, the “Existing Indebtedness Refinancing”) and (B) all              Liens granted in connection with the foregoing shall have been terminated.               (c)   Pro Forma Financial Statements; Financial Statements.  The Administrative        Agent shall have received (i) the Pro Forma Financial Statements, (ii) audited consolidated        balance sheets and related statements of income, stockholders’ equity and cash flows of        the  Borrower  and  its  Subsidiaries  for  the  2018  fiscal  year,  (iii)  unaudited  consolidated        balance sheets and related statements of income and stockholders’ equity of the Borrower        and  its  Subsidiaries  for  the  fiscal  quarter  ended  March  31,  2019  and  (iv)  unaudited                                         83  509265-2041-31349836.23  





 






         statements of cash flows of the Borrower and its Subsidiaries for the three-month period        ended on March 31, 2019; provided that availability of such reports on the SEC’s EDGAR        information retrieval system shall satisfy the requirements of this Section 5.1(c).               (d)   Lien Searches.  The Administrative Agent shall have received the results of        a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens        on  any  of  the  assets  of  the  Loan  Parties  except  for  Liens  permitted  by  Section  7.3  or        discharged on or prior to the Closing Date pursuant to documentation satisfactory to the        Administrative Agent.               (e)   Fees.  All costs, fees and expenses required to be paid by the Borrower to        the Administrative Agent, the Arranger and the Lenders in connection with this Agreement        (including  the  reasonable  and  documented  fees  and  expenses  of  legal  counsel  to  the        Administrative Agent) and all costs, fees and expenses required to be paid by the Borrower        pursuant to the letter agreements entered into with the Arranger shall have been paid or        shall have been authorized to be deducted from the proceeds of the initial extensions of        credit under this Agreement to the extent due and invoiced to the Borrower at least three        Business Days prior to the date hereof.               (f)   Officer’s  Certificate;  Good  Standing  Certificates.   The  Administrative        Agent  shall have received (i) a certificate of  each  Loan Party, dated the Closing Date,        substantially  in  the  form  of  Exhibit  C,  with  appropriate  insertions  and  attachments,        including  (A)  the  certificate  of  incorporation,  in  the  case  of  a  Loan  Party  that  is  a        corporation,  and  certificate  of  formation,  in  the  case  of  a  Loan  Party  that  is  a  limited        liability company, in each case, certified by the relevant authority of the jurisdiction of        organization of such Loan Party as of a recent date, (B) the bylaws, in the case of a Loan        Party  that  is  a  corporation,  and  limited  liability  company  agreement  or  operating        agreement, in the case of a Loan Party that is a limited liability company, certified as of        the Closing Date by its secretary, an assistant secretary or a Responsible Officer as being        in  full  force  and  effect  without  modification  or  amendment,  (C)  resolutions  of  the        governing bodies of each Loan Party approving and authorizing the execution, delivery        and performance of Loan Documents to which it is a party, certified as of the Closing Date        by its secretary, an assistant secretary or a Responsible Officer as being in full force and        effect without modification or amendment and (D) signature and incumbency certificates        of the Responsible Officers of each Loan Party executing the Loan Documents to which it        is  a  party,  and  (ii)  a  long  form  good  standing  certificate  for  each  Loan  Party  from  its        jurisdiction of organization.               (g)   Legal  Opinions.  The  Administrative  Agent  shall have  received  the        executed legal opinions of Sullivan & Cromwell LLP, New York counsel to the Borrower        and  its  Restricted  Subsidiaries  and  certain  other  local  counsel  to  the  Borrower  and  its        Restricted Subsidiaries, as reasonably requested by the Administrative Agent, each in form        and substance reasonably acceptable to the Administrative Agent.               (h)   Pledged  Stock;  Stock  Powers;  Pledged  Notes.   The  Term  Loan        Administrative  Agent  shall  have  received  (i)  the  certificates  representing  the  shares  of        Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with                                         84  509265-2041-31349836.23  





 






         an undated endorsement 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  the        Administrative  Agent  pursuant  to  the  Guarantee  and  Collateral  Agreement  endorsed        (without recourse) in blank (or accompanied by an executed transfer form in blank) by the        pledgor thereof.               (i)   Filings,  Registrations  and  Recordings.   Each  document  (including  any        Uniform Commercial Code financing statement) required by the Security Documents or        under law or reasonably requested by the Administrative Agent to be filed, registered or        recorded in order to create in favor of the Administrative Agent, for the benefit of the        Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in        right to any other Person (other than with respect to Liens expressly permitted by Section        7.3), shall be in proper form for filing, registration or recordation.               (j)   Officer’s  Certificate.   The  Administrative  Agent  shall  have  received  a        certificate of the Borrower, dated the Closing Date certifying that the conditions in Section        5.1(b), 5.2(a), Section 5.2(b) have been met.               (k)   Solvency  Certificate.   The  Administrative  Agent  shall  have  received  a        solvency certificate from a Responsible Officer in the form of Exhibit L.               (l)   Insurance.  The  Administrative  Agent  shall  have  received  insurance        certificates with respect to Inventory satisfying the requirements of Section 6.5.                (m)   Patriot Act.  The Administrative Agent shall have received, at least three        Business Days prior to the Closing Date, all documentation and other information about        any Loan Party reasonably requested by the Administrative Agent in writing at least 10        Business  Days  prior to  the Closing Date and that the Administrative Agent  reasonably        determines is required by United States bank regulatory authorities under applicable “know        your customer” and anti-money laundering rules and regulations, including the Patriot Act.               (n)   Field  Examination  and  Appraisal.  The  Administrative  Agent  shall  have        received (i) a field examination conducted by the Administrative Agent or its designee of        the  Accounts,  Inventory  and  Rental  Agreement Portfolio  and  related  working  capital        matters of the Borrower and its Restricted Subsidiaries and of the related data processing        and other systems of the Borrower and its Restricted Subsidiaries, the results of which shall        be satisfactory to the Administrative Agent in its Permitted Discretion and (ii) an appraisal        of  the  Inventory  and  Rental  Agreement  Portfolio  of  the  Borrower  and  its  Restricted        Subsidiaries  from  a  firm  (or  firms)  satisfactory  to  the  Administrative  Agent,  which        appraisal(s) shall be reasonably satisfactory to the Administrative Agent in its Permitted        Discretion.               (o)   Borrowing Base Certificate. The Administrative Agent shall have received        a completed Borrowing Base Certificate, prepared as of June 30, 2019.               (p)   Deposit Account Control Agreements. The Administrative Agent shall have        received Deposit Account Control Agreements required to be delivered pursuant to the        Guarantee  and  Collateral  Agreement,  in  each  case  in  form  and  substance  reasonably                                         85  509265-2041-31349836.23  





 






         satisfactory to the Administrative Agent; provided that if, notwithstanding the use by the        Loan Parties of commercially reasonable efforts (without undue burden and expense) to        satisfy the requirement set forth in this Section 5.1(p), such requirement is not satisfied as        of the Closing Date, the satisfaction of such requirement shall not be a condition to the        agreement of each Lender to make the initial extension of credit requested to be made by        it (but shall be required to be satisfied within sixty (60) days of the Closing Date (or such        later date as the Administrative Agent may agree in its reasonable discretion)).               (q)   Availability. After giving effect to all extensions of credit to be made on the        Closing  Date,  Availability  on  a  Pro  Forma  Basis  shall  be  greater  than  or  equal  to        $75,000,000.               For the purpose of determining compliance with the conditions specified in this  Section 5.1, each Lender that has signed this Agreement shall be deemed to have accepted, and to  be  satisfied  with,  each  document  or  other  matter  required  under  this  Section  5.1  unless  the  Administrative Agent shall have received written notice from such Lender prior to the proposed  Closing Date specifying its objection thereto.               5.2   Conditions to Each Extension of Credit.  The agreement of each Lender to  make available Revolving Loans (excluding any continuation or conversion thereof) and to issue  Letters of Credit requested to be made by it on any date (including, for the avoidance of doubt, the  making of its Commitments and the making of its initial extension of credit on the Closing Date,  but excluding any Protective Advance) is subject to the satisfaction or waiver in accordance with  the terms hereof, prior to or concurrently with the making of such Revolving Loans or the issuance  of such Letters of Credit, of the following conditions precedent:               (a)   Representations and Warranties.  Each of the representations and warranties  made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all  material respects (or in all respects if qualified by materiality) on and as of such date as if made  on and as of such date, except to the extent expressly made as of an earlier date, in which case such  representations and warranties shall have been so true and correct as of such earlier date.               (b)   No Default.  No Default or Event of Default shall have occurred and be  continuing at the time of or immediately after giving effect to the making of such Revolving Loans  or the issuance of such Letters of Credit.               Each borrowing of Revolving  Loans (excluding any  continuation or conversion  thereof) by, and issuance of a Letter of Credit on behalf of, the Borrower hereunder (other than the  initial  extensions  of  credit  on  the  Closing  Date  and  other  than  with  respect  to  a  Protective  Advance),  shall  constitute  a  representation  and  warranty  by  the  Borrower  at  the  time  of  the  borrowing of such Revolving Loans or the issuance of such Letters of Credit that the conditions  contained in this Section 5.2 have been satisfied or waived in accordance with the terms hereof.                        SECTION 6.  AFFIRMATIVE COVENANTS               The Borrower hereby agrees that, so long as the Commitments remain in effect, any  Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or the  Administrative Agent hereunder (other than contingent obligations and expense reimbursement                                         86  509265-2041-31349836.23  





 






   not  yet  due  and  payable,  Banking  Services  Obligations  and  Secured  Swap  Obligations),  the  Borrower shall and, in the case of Sections 6.3 through 6.8, 6.10, and 6.13, shall cause each of its  Restricted  Subsidiaries  to  and,  in  the  case  of  Section  6.12,  shall  cause  each  of  its  Domestic  Subsidiaries to:               6.1   Financial Statements.  Furnish to the Administrative Agent, on behalf of  each Lender:               (a)   as soon as available, but in any event within 90 days after the end of each        fiscal  year  of  the  Borrower,  a  copy  of  the  audited  consolidated balance  sheet  of  the        Borrower and its consolidated Subsidiaries as at the end of such year and the related audited        consolidated  statements  of  income,  stockholders’  equity  and  cash  flows  for  such  year        (together with, in all cases, customary management discussion and analysis), setting forth        in each case in comparative form the figures for the previous year, reported on without a        “going  concern”  or  like  qualification  or  exception  (other  than  any  qualification  or        exception that is expressed solely with respect to, or resulting solely from, (i) an upcoming        maturity date under any Indebtedness or (ii) any actual or potential inability to satisfy a        financial maintenance covenant at such time or on a future date or in a future period), or        qualification  arising  out of  the  scope  of  the  audit,  by  Ernst  &  Young  LLP  or  other        independent certified public accountants of nationally recognized standing;                (b)   as soon as available, but in any event not later than 45 days after the end of        each of the first three quarterly periods of each fiscal year of the Borrower, the unaudited        consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end        of such quarter and the related unaudited consolidated statements of income, stockholders’        equity and cash flows for such quarter and/or the portion of the fiscal year through the end        of  such  quarter  (together  with,  in  all  cases,  customary  management  discussion  and        analysis), setting forth in each case in comparative form the figures for the corresponding        period or periods of the previous fiscal year (or, in the case of the balance sheet, as of the        end of the previous fiscal year), certified by a Responsible Officer as being fairly stated in        all  material  respects  (subject  to  normal  year-end  audit  adjustments  and  the  absence  of        footnotes);                (c)   as soon as available, but in any event not later than 30 days after the end of        each calendar month of the Borrower (other than, with respect to the following clause (i),        the third, sixth, ninth and twelfth such months), (i) the unaudited consolidated balance sheet        of the Borrower  and its  consolidated Subsidiaries as  at  the end of such month and the        related unaudited consolidated statements of income and cash flows for such month and        the portion of the fiscal year through the end of such month, setting forth in each case in        comparative form the figures for the previous year, certified by a Responsible Officer as        being fairly stated in all material respects (subject to normal year-end audit adjustments        and the absence of footnotes) and (ii) a Collateral Monitoring Template; and               (d)   if any Unrestricted Subsidiary  exists,  concurrently  with  each delivery of        financial  statements  under  clause (a),  (b)  or  (c)(i)  above,  financial  statements  (in        substantially the same form as the financial statements delivered pursuant to clause (a), (b)        or (c)(i) above, as applicable) prepared on the basis of consolidating the accounts of the                                         87  509265-2041-31349836.23  





 






         Borrower and its Restricted Subsidiaries and treating any Unrestricted Subsidiaries as if        they  were  not  consolidated  with  the  Borrower,  together  with  an  explanation  of        reconciliation adjustments in reasonable detail.   All such financial statements shall be complete and correct in all material respects and shall be  prepared in reasonable detail and in accordance with GAAP applied (except as approved by such  accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently  throughout the periods reflected therein and with prior periods.               Documents  required  to  be  delivered  pursuant  to  Section  6.1(a),  (b)  or  (c)(i)  or  Section 6.2(c) or (e) may be delivered electronically and if so delivered, shall be deemed to have  been delivered on the date on which (i) such documents are received by the Administrative Agent  or (ii) such documents are filed of record with the SEC; provided that, upon written request by the  Administrative  Agent,  the  Borrower  shall  deliver  paper  copies  of  such  documents  to  the  Administrative  Agent  for  further  distribution  to  each  Lender  until  a  written  request  to  cease  delivering paper copies is given by the Administrative Agent. The Administrative Agent shall have  no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the  documents referred to above, and in any event shall have no responsibility to monitor compliance  by the Borrower with any such request for delivery, and each Lender shall be solely responsible  for timely accessing posted documents or requesting delivery of paper copies of such documents  from the Administrative Agent and maintaining its copies of such documents.                 6.2   Certificates;  Borrowing  Base;  Other  Information.   Furnish  to  the  Administrative Agent, on behalf of each Lender:               (a)   [reserved];               (b)   concurrently  with  the  delivery  of  any  financial  statements  pursuant  to        Sections 6.1(a) and 6.1(b), (i) a Compliance Certificate executed by a Responsible Officer,        which Compliance Certificate shall (x) include a statement that such Responsible Officer        has obtained no knowledge of any Default or Event of Default except as specified in such        certificate,  (y) in  the  case  of  quarterly  or  annual  financial  statements,  set  forth,  in        reasonable detail, the calculation of the Consolidated Fixed Charge Coverage Ratio for the        Reference Period ending as of the last day of the fiscal year or fiscal quarter for which        financial  statements  are  being  delivered  pursuant  to  Section  6.1  and  (ii) in  the  case  of        quarterly  or  annual  financial  statements,  to  the  extent  not  previously  disclosed  to  the        Administrative Agent, (x) a description of any change in the jurisdiction of organization of        any Loan Party and (y) a description of any Person that has become a Group Member, a        Restricted Subsidiary or an Unrestricted Subsidiary, in each case since the date of the most        recent report delivered pursuant to this clause (ii) (or, in the case of the first such report so        delivered, since the Closing Date);               (c)   as soon as available, and in any event no later than 90 days after the end of        each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal        year (including a projected consolidated balance sheet of the Borrower and its Restricted        Subsidiaries as of the end of the following fiscal year, the related consolidated statements        of  projected  cash  flow  and  projected  income  and  a  description  of  the  underlying                                         88  509265-2041-31349836.23  





 






         assumptions applicable thereto) (collectively, the “Projections”), which Projections shall        in each case be accompanied by a certificate of a Responsible Officer stating that such        Projections are based on reasonable estimates, information and assumptions at the time        made, it being understood that such Projections as they relate to future events are not to be        viewed  as  fact  and  that  actual  results  during  the  period  or  periods  covered  by  such        Projections may differ from the projected results set forth therein and such difference may        be material;               (d)   [Reserved];               (e)   promptly  after  the  same  are  sent,  copies  of  all  financial  statements  and        reports that the Borrower sends to the holders of any class of its public debt securities or        public  equity  securities  and,  promptly  after  the  same  are  filed,  copies  of  all  financial        statements and reports that the Borrower may make to, or file with, the SEC;                (f)   promptly following receipt thereof, copies of (i) any documents described        in Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate may        request with respect to any Multiemployer Plan or any documents described in Section        101(f) of ERISA that any Group Member or any ERISA Affiliate may request with respect        to any Pension Plan; provided, that if the relevant Group Members or ERISA Affiliates        have not requested such documents or notices from the administrator or sponsor of the        applicable  Multiemployer  Plans,  then,  upon  reasonable  request  of  the  Administrative        Agent, such Group Member or the ERISA Affiliate shall promptly make a request for such        documents or notices from such administrator or sponsor and the Borrower shall provide        copies of such documents and notices to the Administrative Agent promptly after receipt        thereof;                (g)   as soon as available but in any event within 30 calendar days of the end of        each  calendar  month  (or  within  five  Business  Days  of  the  end  of  each  week  during  a        Weekly Borrowing Base Period), as of the last day of the period then ended, a Borrowing        Base Certificate together with the information supporting the Borrowing Base calculation        required by the Borrowing Base Certificate including:                     (i)   a  detailed  aging  of  the  Loan  Parties’  Accounts,  including  all              invoices  aged  by  invoice  date  and  due  date,  prepared  in  a  manner  reasonably              acceptable to the Administrative Agent;                     (ii)  a schedule detailing the Loan Parties’ Inventory Held for Rent, in              form  reasonably  satisfactory  to  the  Administrative  Agent,  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 and by              volume on hand, which Inventory shall be valued at the lower of cost (determined              on  a  first-in,  first-out  basis)  or  market  and  adjusted  for  Reserves  as  the              Administrative Agent has previously indicated to the Borrower are deemed by the              Administrative Agent to be appropriate;                     (iii) a schedule detailing the Loan Parties’ Eligible Rental Agreements;                                         89  509265-2041-31349836.23  





 






                     (iv)  a worksheet of calculations prepared by the Borrower to determine              Eligible Installment Sale Accounts, Eligible Inventory Held for Rent and Eligible              Rental Agreements, such worksheets detailing the Accounts, Inventory and rental              agreements excluded from Eligible Installment Sale Accounts, Eligible Inventory              Held for Rent and Eligible Rental Agreements and the reason for such exclusion;                     (v)   a  reconciliation  of  the  Borrower’s  Eligible  Installment  Sale              Accounts,  Eligible  Inventory  Held  for  Rent  and  Eligible  Rental  Agreements              between  the  amounts  shown  in  the  Borrower’s  general  ledger  and  financial              statements and the reports delivered pursuant to clauses (i), (ii) and (iii) above; and                     (vi)  a  reconciliation  of  the  loan  balance  per  the  Borrower’s  general              ledger to the loan balance under this Agreement;               (h)   [Reserved];               (i)   prior  to  any  Disposition  (in  one  transaction  or  a  series  of  related        transactions) of assets that provide in excess of $25,000,000 of value to the Borrowing        Base, a Borrowing Base Certificate (giving effect to such sale or other disposition) and        supporting information in connection therewith; and               (j)   promptly, such (x) additional financial and other customary information as        the Administrative Agent (or any Lender through the Administrative Agent) may from time        to time reasonably request and (y) information and documentation reasonably requested by        the Administrative Agent or any Lender for purposes of compliance with applicable “know        your customer” and anti-money laundering rules and regulations, including the Patriot Act.               6.3   Payment of Taxes.  Pay, discharge or otherwise satisfy as they become due  or before they become delinquent, as the case may be, all its material obligations in respect of  Taxes, except where (a) the amount or validity thereof is currently being contested in good faith  by appropriate proceedings and reserves to the extent required by GAAP with respect thereto have  been  provided  on  the  books  of  the  relevant  Group  Member  or  (b)  the  failure  to  make  such  payments, individually or in the aggregate, would not reasonably be expected to have a Material  Adverse Effect.               6.4   Maintenance of Existence; Compliance.  (a)(i) Preserve, renew and keep in  full force and effect its organizational existence and (ii) take all reasonable action to maintain all  rights, privileges and franchises necessary in the normal conduct of its business, except, in each  case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii) above, to the extent  that failure to do so would not reasonably be expected to have a Material Adverse Effect; (b)  comply with all Requirements of Law except to the extent that failure to comply therewith would  not, in the aggregate, reasonably be expected to have a Material Adverse Effect; and (c) maintain  in  effect  and  enforce  policies  and  procedures  designed  to  ensure  material  compliance  by  the  Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti- Corruption Laws and applicable Sanctions.               6.5   Maintenance of Property; Insurance.  (a)  Maintain, with financially sound  and  reputable  insurance  companies  (after  giving  effect  to  self-insurance),  insurance  in  such                                         90  509265-2041-31349836.23  





 






   amounts and against such risks as are customarily maintained by companies engaged in the same  or  similar  businesses  operating  in  the  same  or  similar  locations  and  (b)  use  commercially  reasonable efforts to cause all insurance policies or certificates, as requested by the Administrative  Agent, to be endorsed to the benefit of the Administrative Agent (including, without limitation, by  naming the Administrative Agent as lender loss payee and/or additional insured).               6.6   Books and Records; Inspection of Property; Discussions; Appraisals; Field  Examinations.  (a)(i)  Keep proper books of records and account in which full, true and correct (in  all material respects) entries in conformity with GAAP (other than for Foreign Subsidiaries, in  which  case  the  applicable  accounting  standard  shall  be  the  accounting  standard  used  in  such  Foreign Subsidiary’s jurisdiction) and all Requirements of Law shall be made of all dealings and  transactions  in  relation to  its  business  and  activities  and  (ii)  upon  reasonable  prior  notice  and  subject to the provisions of Section 10.15, permit representatives of the Administrative Agent or  any Lender to visit and inspect any of its properties and examine and make abstracts from any of  its books and records at any reasonable time and as often as may reasonably be desired and to  discuss  the  business,  operations,  properties  and  financial  and  other  condition  of  the  Group  Members with officers and employees of the Group Members and, accompanied by one or more  officers or designees of the Borrower if requested by the Borrower, with their independent certified  public accountants; provided that excluding any such visits and inspections during the continuation  of an Event of Default (x) only the Administrative Agent, acting individually or on behalf of the  Lenders may exercise rights under this Section 6.6(a) and (y) the Administrative Agent shall not  exercise rights under this Section 6.6(a) more often than one time during any calendar year.               (b)   No  more  than  once  in  each  twelve  month  period,  at  the  request  of  the  Administrative Agent, the Loan Parties will cooperate with an appraiser selected and engaged by  the Administrative Agent (after consultation with the Borrower) to provide Inventory and Rental  Agreement Portfolio appraisals or updates thereof, prepared on a basis reasonably satisfactory to  the  Administrative  Agent,  such  appraisals  and  updates  to  include  information  required  by  applicable law and regulations; provided that (i) if a Specified Event of Default has occurred and  is continuing, there shall be no limitation on the number or frequency of such appraisals and (ii) if  Availability is less than the greater of $33,750,000 or 15% of the Line Cap for a period of five  consecutive  Business  Days,  the  Loan  Parties  will  cooperate  with  the  Administrative  Agent  to  provide  one  additional  Inventory  appraisal  and  one  additional  Rental  Agreement  Portfolio  appraisal  (each  at  the  request  of  the  Administrative  Agent)  during  the  twelve  month  period  commencing with any month during which clause (ii) is triggered.  For purposes of this Section  6.6(b), it is understood and agreed that a single appraisal may consist of appraisals conducted at  multiple relevant sites and involve one or more relevant Loan Parties and their assets.  All such  appraisals  shall  be  commenced  upon  reasonable  prior  written  notice  to  the  Borrower  and  performed during normal business hours of the Loan Parties and in a manner such as not to disrupt  the normal operation of the Loan Parties’ business, and all reasonable and documented out-of- pocket costs of such appraisals shall be at the sole expense of the Loan Parties.               (c)   No  more  than  once  in  each  twelve  month  period,  at  the  request  of  the  Administrative  Agent,  the  Loan  Parties  will  permit,  upon  reasonable  prior  written  notice,  the  Administrative Agent or its designee to conduct a field examination to ensure the adequacy of  Collateral included in any Borrowing Base and related reporting and control systems; provided  that (i) if a Specified Event of Default has occurred and is continuing, there shall be no limitation                                         91  509265-2041-31349836.23  





 






   on the number or frequency of such field examinations and (ii) if Availability is less than the  greater of $33,750,000 or 15% of the Line Cap for a period of five consecutive Business Days, the  Loan Parties will permit the Administrative Agent to conduct one additional such examination (at  the request of the Administrative Agent) during the twelve month period commencing with any  month  during  which  clause  (ii)  above  is  triggered.   For  purposes  of  this  Section  6.6(c),  it  is  understood and agreed that (i) a single field examination may be conducted at multiple relevant  sites and involve one or more relevant Loan Parties and their assets and (ii) the Administrative  Agent shall use commercially reasonable efforts to coordinate any such field exams.  All such field  examinations  shall  be  commenced  upon  reasonable  prior  written  notice  to  the  Borrower  and  performed during normal business hours of the Loan Parties and in a manner such as not to disrupt  the normal operations of the Loan Parties’ business, and all reasonable and documented out-of- pocket costs of such field examinations shall be at the sole expense of the Loan Parties.               6.7   Notices.  Promptly give notice to the Administrative Agent, on behalf of  each Lender, of:               (a)   the occurrence of any Default or Event of Default;               (b)   any  litigation,  investigation  or  proceeding  that  may  exist  at  any  time        between any Group Member and any Governmental Authority that, in each case, has a        reasonable probability of not being cured or of being adversely determined and that, if not        cured or if adversely determined, as the case may be, could reasonably be expected to have        a Material Adverse Effect;               (c)   any litigation or proceeding affecting the Borrower or any of its Restricted        Subsidiaries  in  which  injunctive  or  similar  relief  is  sought  which  has  a  reasonable        probability of being determined adversely and if adversely determined would reasonably        be expected to be granted and which, if granted, would reasonably be expected to have a        Material Adverse Effect;               (d)   (i)  as soon as reasonably possible upon becoming aware of the occurrence        of or forthcoming occurrence of any material ERISA Event, a written notice specifying the        nature thereof, what action the Borrower, any of the other Group Members or any of their        respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto        and, when known, any action taken or threatened by the IRS, the Department of Labor or        the  PBGC  with  respect  thereto;  and  (ii)  with  reasonable  promptness,  upon  the        Administrative  Agent’s  reasonable  request,  copies  of  (A)  each  Schedule  SB  (Actuarial        Information) to the annual report (Form 5500 Series) filed by the Borrower, any of the        other Group Members or any of their respective ERISA Affiliates with the IRS with respect        to each Pension Plan; (B) all notices received by the Borrower, any of the other Group        Members or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor        concerning  a  material  ERISA  Event;  and  (C)  copies  of  such  other  documents  or        governmental reports or filings relating to any Plan or Pension Plan as the Administrative        Agent shall reasonably request; and               (e)   any  other  development  or  event  that  has  had  or  would  reasonably  be        expected to have a Material Adverse Effect.                                         92  509265-2041-31349836.23  





 






   Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible  Officer  setting  forth  details  of  the  occurrence  referred  to  therein  and  stating  what  action  the  relevant Group Member proposes to take with respect thereto.               6.8   Environmental  Laws.  (a)  Comply  with,  and  ensure  compliance  by  all  tenants,  subtenants,  contractors,  subcontractors,  and  invitees,  if  any,  with,  all  applicable  Environmental  Laws,  and  obtain  and  comply  with  and  maintain,  and  ensure  that  all  tenants,  subtenants, contractors, subcontractors, and invitees obtain and comply with and maintain, any  and all Environmental Permits (with respect to tenants, subtenants, contractors, and invitees, the  foregoing applies to their presence and conduct on, affecting or relating to any property of the  Borrower or any of its Restricted Subsidiaries). It being understood that any noncompliance with  this Section 6.8(a) shall be deemed not to constitute a breach of this covenant provided that, upon  learning of any actual or suspected noncompliance, the Borrower shall promptly undertake all  reasonable  efforts  to  achieve  compliance,  and  provided  further  that,  in  any  case,  such  noncompliance, and  any other noncompliance  with Environmental  Law,  individually or in  the  aggregate, would not reasonably be expected to have a Material Adverse Effect.               (b)   Promptly  comply  with  all  orders  and  directives  of  all  Governmental  Authorities regarding Environmental Laws, other than such orders and directives as to which an  appeal has been timely and properly taken in good faith, and provided that the pendency of any  and all such appeals would not reasonably be expected to give rise to a Material Adverse Effect.               6.9   [Reserved].                  6.10  Additional Collateral, etc.  (a)  With respect to any property acquired after  the Closing Date by any Loan Party (other than (A) any property described in paragraph (b) or (c)  below, (B) any property subject to a Lien expressly permitted by Section 7.3(g), (C) so long as the  Term Loan Obligations Payment Date has not occurred, any Term Loan Priority Collateral as to  which the Term Loan Representative determines, in its reasonable discretion and in consultation  with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to  the value of the security to be afforded thereby and (D) any property that is Excluded Property (as  defined in the Guarantee and Collateral Agreement)) as to which the Administrative Agent, for the  benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to  the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such  other documents as the Administrative Agent deems necessary or reasonably advisable to grant to  the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property  and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for  the benefit  of the Secured Parties,  a perfected security interest  in  any such property  (with the  priority required by the Intercreditor Agreement), including the filing of Uniform Commercial  Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral  Agreement or by law or as may be requested by the Administrative Agent.               (b)   With respect  to  any new Domestic Subsidiary  (other than any Excluded  Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes  of this paragraph (c), shall include (1) any existing Subsidiary that becomes a Domestic Subsidiary  that is not an Excluded Subsidiary and (2) any existing Domestic Subsidiary that ceases to be an  Excluded Subsidiary) within thirty (30) days after the creation or acquisition of such new Domestic                                         93  509265-2041-31349836.23  





 






   Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i)  execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral  Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the  Administrative Agent, for the benefit of the Secured Parties, a perfected security interest with the  priority required by the Intercreditor Agreement in the Capital Stock of such new Subsidiary that  is  owned  by  any  Loan  Party,  (ii)  subject  to  the  Intercreditor  Agreement,  deliver  to  the  Administrative  Agent  the  certificates  representing  such  Capital  Stock,  together  with  undated  endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan  Party and (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral  Agreement, (B)  to  take  such  actions  necessary  or  reasonably  advisable  to  grant  to  the  Administrative Agent for the benefit of the Secured Parties a perfected security interest with the  priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and  Collateral  Agreement  with  respect  to  such  new  Subsidiary,  including  the  filing  of  Uniform  Commercial Code financing statements in such jurisdictions as may be required by the Guarantee  and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C)  subject to the Intercreditor Agreement, to deliver to the Administrative Agent a certificate of such  Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments.               (c)   With  respect  to  any new  CFC  Holding  Company  or  Foreign  Subsidiary  created or acquired after the Closing Date by any  Loan Party (which, for the purposes of this  paragraph (d), shall include any existing Subsidiary that becomes a CFC Holding Company or a  Foreign Subsidiary), within  sixty (60) days  after the creation or acquisition of such new CFC  Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall  agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments  to  the  Guarantee  and  Collateral  Agreement  as  the  Administrative  Agent  deems  necessary  or  reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a  perfected security interest with the priority required by the Intercreditor Agreement in the Capital  Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party  (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any  such CFC Holding Company or Foreign Subsidiary be required to be so pledged), (ii) subject to  the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such  pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a  duly authorized officer of the relevant Loan Party and take such other action as the Administrative  Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security  interest therein.               6.11  Designation  of  Subsidiaries.   The  Borrower  may  at  any  time  after  the  Closing  Date  designate  any  Restricted  Subsidiary  as  an  Unrestricted  Subsidiary  or  any  Unrestricted Subsidiary as a Restricted Subsidiary by delivering to the Administrative Agent a  certificate of a Responsible Officer specifying such designation and certifying that the conditions  to such designation set forth in this Section 6.11 are satisfied; provided that:               (a)   both immediately before and immediately after any such designation, no        Event of Default shall have occurred and be continuing;                                          94  509265-2041-31349836.23  





 






               (b)   in the case of a designation of a Restricted Subsidiary as an Unrestricted        Subsidiary,  the  pro  forma  Consolidated  Leverage  Ratio  for  the  Applicable  Reference        Period is no greater than 3.00 to 1.00;               (c)   in the case of a designation of a Restricted Subsidiary as an Unrestricted        Subsidiary, each Subsidiary of such Subsidiary has been, or concurrently therewith will be,        designated as an Unrestricted Subsidiary in accordance with this Section 6.11;               (d)   in the case of a designation of a Restricted Subsidiary as an Unrestricted        Subsidiary,  such  Subsidiary  shall  substantially  simultaneously  be  designated  as  an        “Unrestricted  Subsidiary”  under  the  Term  Loan  Credit  Agreement  (and,  to  the  extent        applicable, any other agreement governing Permitted Refinancing Indebtedness in respect        of the Term Loans) and in the case of a designation of an Unrestricted Subsidiary as a        Restricted Subsidiary, such Subsidiary shall substantially simultaneously be designated as        a  “Restricted  Subsidiary”  under  the  Term  Loan  Credit  Agreement  (and,  to  the  extent        applicable, any other agreement governing Permitted Refinancing Indebtedness in respect        of the Term Loans).   The designation of any  Restricted Subsidiary  as an Unrestricted Subsidiary shall constitute an  Investment by the Borrower in such Subsidiary on the date of designation in an amount equal to  the fair market value of the Borrower’s Investment therein (as determined reasonably and in good  faith by a Responsible Officer).  The designation of any Unrestricted Subsidiary as a Restricted  Subsidiary  shall  constitute  the  incurrence  at  the  time  of  designation  of  any  Investment,  Indebtedness or Liens of such Subsidiary existing at such time.               6.12  Deposit  Account  Control  Agreements.  With  respect  to  any  new  deposit  account opened by a Loan Party after the Closing Date or any Excluded Account (as defined in  the Guarantee and Collateral Agreement) that ceases to be an Excluded Account after the Closing  Date, (a) give notice to the Administrative Agent within three (3) Business Days following the  opening or change in status of such account (or such longer period as the Administrative Agent  may agree in its reasonable discretion) and (b) within sixty (60) days (or such longer period as the  Administrative  Agent  may  agree  in  its  reasonable  discretion)  following  the  opening  of  such  account, deliver to the Administrative Agent any Deposit Account Control Agreement required to  be  delivered  pursuant  to  the  Guarantee  and  Collateral  Agreement,  in  each  case,  in  form  and  substance reasonably satisfactory to the Administrative Agent.                  6.13  Rental and Sales Agreements.                (a)   Unless Section 6.13(b) applies, (i) any rental agreements entered into by a  Loan Party with a customer of such Loan Party and any installment sales agreements entered into  by  a  Loan Party  with  a customer of such  Loan  Party  (the  foregoing agreements,  the “Subject  Agreements”)  shall  be  held  by  the  Loan  Parties  at  one  or  more  locations  as  directed  by  the  Borrower and (ii) the Loan Parties shall use commercially reasonable efforts to maintain customary  measures  consistent  with  past  practice  with  respect  to  access  to,  and  security  of,  the  Subject  Agreements.                                           95  509265-2041-31349836.23  





 






               (b)   From and after the date that is sixty (60) days after the first date on which  either (i) Availability is less than the greater of (A) 25% of the Line Cap and (B) $75,000,000 or  (ii) the Administrative Agent notifies the Borrower in its Permitted Discretion, continuing until  the  time  at  which  (x)  Availability  shall  have  exceeded  (A)  35%  of  the  Line  Cap  and  (B)  $100,000,000 for a period of sixty (60) consecutive days and (y) the Administrative Agent no  longer  deems  necessary  in  its  Permitted  Discretion  to  hold  Subject  Agreements,  any  Subject  Agreements shall be promptly delivered to either (I) the Specified Administrative Agent Location  or (II) to the Administrative Agent (or a designee thereof), and if so delivered to the Administrative  Agent  (or  a  designee  thereof),  duly  indorsed  in  a  manner  reasonably  satisfactory  to  the  Administrative Agent.                (c)   The  Loan  Parties  shall  ensure  that  all  Subject  Agreements entered  into  following the Closing Date bear the following legend: “This writing and the obligations evidenced  hereby  are  subject  to  the  security  interest  of  JPMorgan  Chase  Bank,  N.A.,  as  Administrative  Agent.”.                          SECTION 7.  NEGATIVE COVENANTS               The Borrower hereby agrees that, so long as the Commitments remain in effect, any  Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or the  Administrative Agent hereunder (other than contingent obligations and expense reimbursement  not  yet  due and  payable,  Banking  Services  Obligations  and  Secured  Swap  Obligations),  the  Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:               7.1   Consolidated  Fixed  Charge  Coverage  Ratio.  During  any  period  commencing on a date (each a “Commencement Date”) (a) on which a Specified Event of Default  has occurred and is continuing or (b) on which Availability is less than or equal to the greater of  (i) 15% of the Line Cap and (ii) $33,750,000, and continuing until the first succeeding date on  which  (A)  no  Specified  Event  of  Default  shall  be  continuing  and  (B)  Availability  shall  have  exceeded  each  threshold  set  forth  in  clause  (b)  for  at  least  30  consecutive  days,  permit  the  Consolidated Fixed Charge Coverage Ratio for the Applicable Reference Period in effect at any  such time (including, for the avoidance of doubt, the Applicable Reference Period in effect on the  applicable Commencement Date) to be less than 1.10 to 1.00.               7.2   Indebtedness.  Create, issue, incur, assume, become liable in respect of or  suffer to exist any Indebtedness, except:               (a)   Indebtedness of any Loan Party under this Agreement;               (b)   (i)  Indebtedness  of  the  Loan  Parties  under  the  Term  Loan  Credit        Agreement  (and  any  Permitted  Refinancing  Indebtedness  in  respect  thereof)  in  an        aggregate amount not to exceed (A) $200,000,000, plus (B) the Base Incremental Amount        plus (C)  the  Voluntary  Prepayment  Amount plus (D)  the  Maximum  Term  Loan        Incremental Amount;               (c)   Indebtedness of the Borrower or any Restricted Subsidiary owing to the        Borrower or any Restricted Subsidiary; provided that (i) any Indebtedness of any Loan        Party shall be unsecured and shall be subordinated in right of payment to the Obligations                                         96  509265-2041-31349836.23  





 






         on  terms  customary  for  intercompany  subordinated  Indebtedness,  as  reasonably        determined  by  the  Administrative  Agent  and  (ii)  any  such  Indebtedness  owing  by  any        Restricted  Subsidiary  that  is  not  a  Loan  Party  to  any  Loan  Party  shall  be  incurred  in        compliance with Section 7.7;               (d)   Guarantee Obligations incurred by any Group Member of obligations of any        Group Member to the extent such obligations are not prohibited hereunder; provided that        (i) to the extent any such obligations are subordinated to the Obligations, any such related        Guarantee Obligations incurred by a Loan Party shall be subordinated to the guarantee of        such Loan Party of the Obligations on terms no less favorable to the Lenders than the        subordination provisions of the obligations to which such Guarantee Obligation relates and        (ii) any Guarantee Obligations incurred by any Loan Party of obligations of a Restricted        Subsidiary that is not a Loan Party shall be permitted to the extent the aggregate amount        of outstanding Guarantee Obligations incurred pursuant to this clause (ii) does not exceed        $25,000,000;               (e)   Indebtedness outstanding on the Closing Date (provided that Indebtedness        in an aggregate principal amount in excess of $5,000,000 shall be listed on Schedule 7.2(e))        and any Permitted Refinancing Indebtedness in respect thereof;               (f)   Indebtedness of any Group Member incurred to finance the acquisition of        fixed or capital assets (and any Permitted Refinancing Indebtedness in respect thereof) in        an aggregate principal amount not to exceed $25,000,000 at any time outstanding;                (g)   Indebtedness representing deferred compensation to employees, officers or        directors of the Borrower and its Restricted Subsidiaries incurred in the ordinary course of        business;               (h)   Indebtedness  incurred  in  the  ordinary  course  of  business  and  owed  in        respect of any overdrafts and related liabilities arising from treasury, depository and cash        management  services  or  in  connection  with  any  automated  clearing-house  transfers  of        funds;               (i)   Indebtedness arising under any Swap Agreement permitted by Section 7.11;                (j)   Indebtedness (other than for borrowed money) that may be deemed to exist        pursuant  to  any  guarantees,  warranty  or  contractual  service  obligations,  performance,        surety,  statutory,  appeal,  bid,  prepayment  guarantee,  payment  (other  than  payment  of        Indebtedness) or completion of performance guarantees or similar obligations incurred in        the ordinary course of business;               (k)   Indebtedness  in  respect  of  workers’  compensation  claims,  payment        obligations in connection with health, disability or other types of social security benefits,        unemployment or other  insurance obligations,  reclamation and statutory  obligations,  in        each case in the ordinary course of business;               (l)   Indebtedness  arising  from  the  honoring  by  a  bank  or  other  financial        institution of a check, draft or similar instrument drawn against insufficient funds, so long                                         97  509265-2041-31349836.23  





 






         as such Indebtedness is covered or extinguished within five Business Days;               (m)   Indebtedness consisting of (i) the financing of insurance premiums or self-       insurance  obligations  or  (ii)  take-or-pay  obligations  contained  in  supply  or  similar        agreements in each case in the ordinary course of business;               (n)   Indebtedness in the form of purchase price adjustments (including in respect        of  working  capital),  earnouts,  deferred  compensation,  indemnification  or  other        arrangements  representing  acquisition  consideration  or  deferred  payments  of  a  similar        nature  incurred  in  connection  with  any  Permitted  Acquisitions  or  other  Investments        permitted under Section 7.7 or Dispositions permitted under Section 7.5;               (o)   (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of        any Person not previously a Restricted Subsidiary that is merged or consolidated with or        into the Borrower or a Restricted Subsidiary in a transaction permitted hereunder) after the        Closing  Date,  or  Indebtedness  of  any  Person  that  is  assumed  by  the  Borrower  or  any        Restricted Subsidiary in connection with an acquisition of assets by the Borrower or such        Restricted Subsidiary in a Permitted Acquisition; provided that such Indebtedness exists at        the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or        such assets are acquired and is not created in contemplation of or in connection with such        Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assets        being  acquired  and  (ii)  Permitted  Refinancing  Indebtedness  in  respect  of  such        Indebtedness; provided that after giving effect to the applicable acquisition (or merger or        consolidation) or such assumption of Indebtedness, the Consolidated Leverage Ratio for        the Applicable Reference Period, calculated on a Pro Forma Basis as of the date of such        acquisition (or merger or consolidation) or assumption, is not in excess of 3.00 to 1.00;        provided further that the aggregate principal amount of Indebtedness of Subsidiaries that        are not Loan Parties outstanding under this Section 7.2(o) shall not exceed $20,000,000;               (p)   Guarantee  Obligations  of  the  Borrower  or  any  Restricted  Subsidiary  in        respect of Indebtedness of franchisees in an aggregate amount not to exceed $25,000,000        at any time outstanding;               (q)   Indebtedness  of  the  Borrower  and  any  Restricted  Subsidiary  to  the        Insurance Subsidiary in an aggregate principal amount not to exceed $75,000,000 at any        time outstanding that cannot be subordinated to the obligations of any Loan Party under        the  Loan  Documents  for  regulatory  reasons  or  would  cause the  carrying  value  for        regulatory valuation purposes to be increased;               (r)   Indebtedness of the Insurance Subsidiary permitted by Section 7.7(v)(i);               (s)   [reserved];               (t)   Term Loan Incremental Equivalent Debt (and any Permitted Refinancing        Indebtedness  in  respect  thereof) in  an  aggregate  amount  not  to  exceed  (x)  the  Base        Incremental Amount plus (y) the Term Loan Voluntary Prepayment Amount plus (z) the        Maximum  Term  Loan  Incremental  Amount; provided that  immediately  prior  to  and                                         98  509265-2041-31349836.23  





 






         immediately after giving effect to the incurrence of any Indebtedness under this Section        7.2(t), no Default or Event of Default shall have occurred and be continuing;               (u)   (i) Permitted Unsecured Indebtedness so long as, at the time of incurrence        of  such  Permitted  Unsecured  Indebtedness,  the  Consolidated Leverage  Ratio  for  the        Applicable Reference Period, calculated on a Pro Forma Basis as of the date of incurrence        thereof (but excluding from Unrestricted Cash in making such pro forma calculation the        Net Cash Proceeds of such Indebtedness), is not in excess of 2.50 to 1.00; provided that        (A)  immediately  prior  to  and  immediately  after  giving  effect  to  the  incurrence  of  any        Permitted  Unsecured  Indebtedness  under  this  Section  7.2(u),  no  Default  or  Event  of        Default shall have occurred and be continuing, (B) the Borrower will, at least  five  (5)        Business Days prior to the date of incurrence of such Indebtedness in a principal amount        in excess of $10,000,000, deliver to the Administrative Agent a certificate of a Responsible        Officer, dated such date, confirming the satisfaction of the conditions set forth above and        attaching a reasonably detailed calculation of the Consolidated Leverage Ratio on a Pro        Forma Basis as of the applicable date identifying the Permitted Unsecured Indebtedness        being incurred and specifying that it is being incurred pursuant to this Section 7.2(u) and        (C)  the  aggregate  principal  amount  of  Permitted  Unsecured  Indebtedness  of  Restricted        Subsidiaries that are not Loan Parties outstanding under this Section 7.2(u) shall not exceed        $20,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;               (v)   [reserved];               (w)   additional Indebtedness of the Borrower or any of its Restricted Subsidiaries        in an aggregate principal amount (for the Borrower and all Restricted Subsidiaries) not to        exceed  at any  time  outstanding  the  greater  of  (i)  $300,000,000  and  (ii)  100%  of        Consolidated EBITDA (for the Applicable Reference Period); provided that the aggregate        principal  amount  of  Indebtedness  of  Restricted  Subsidiaries  that  are  not  Loan  Parties        outstanding under this Section 7.2(w) shall not exceed $50,000,000;               (x)   Attributable  Indebtedness  (i)  arising  out  of  the  sale-leaseback  of  the        Company Headquarters and (ii) otherwise in an aggregate principal amount not to exceed        $15,000,000 at any time outstanding, in each case which Attributable Indebtedness arises        out of a sale and leaseback transaction permitted under Section 7.10;               (y)   Indebtedness of any Loan Party in  an aggregate principal amount not to        exceed the Net Cash Proceeds (Not Otherwise Applied) received after the Closing Date        and on or prior to such date from any issuance of Qualified Capital Stock by the Borrower        (other than any such issuance to a Group Member);                (z)   Guarantee Obligations incurred by any Group Member of obligations of any        Joint Venture or Unrestricted Subsidiary to the extent permitted under Section 7.7(u); and               (aa)  Indebtedness  of  the  Borrower  to  the  Insurance  Subsidiary  in  connection        with an Investment that is permitted pursuant to Section 7.7(z).   For  purposes  of  determining  compliance  with  this Section  7.2,  in  the  event  that  an  item  of  Indebtedness meets the criteria of more than one of the categories of Indebtedness described in                                         99  509265-2041-31349836.23  





 






   clauses (a) through (aa) above, the Borrower may, in its sole discretion, divide or classify or later  divide, classify or reclassify all or a portion of such item of Indebtedness in a manner that complies  with this Section 7.2 and will only be required to include the amount and type of such Indebtedness  in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan  Documents and the Term Loan Credit Agreement and, in each case, any Permitted Refinancing  Indebtedness in respect thereof, will at all times be deemed to be outstanding in reliance only on  the exception in Section 7.2(a) and Section 7.2(b), respectively.   For the avoidance of doubt, a permitted refinancing in respect of Indebtedness incurred pursuant  to a Dollar-denominated or Consolidated EBITDA-governed basket shall not increase capacity to  incur Indebtedness under such Dollar-denominated or Consolidated EBITDA-governed basket,  and  such  Dollar-denominated  or  Consolidated  EBITDA-governed  basket  shall  be  deemed  to  continue to be utilized by the amount of the original Indebtedness incurred unless and until the  Indebtedness incurred to effect such permitted refinancing is no longer outstanding.               7.3   Liens.  Create, incur, assume or suffer to exist any Lien upon any of its  property, whether now owned or hereafter acquired, except:               (a)   Liens for Taxes, assessments or other government charges or levies not yet        due or that are being contested in good faith by appropriate proceedings; provided that        adequate reserves with respect thereto are maintained on the books of the Borrower or its        Restricted Subsidiaries, as the case may be, to the extent required by GAAP;               (b)   carriers’,  warehousemen’s,  mechanics’,  materialmen’s,  repairmen’s  or        other like Liens arising in the ordinary course of business that are not overdue for a period        of more than 60 days or that are being contested in good faith by appropriate proceedings;               (c)   pledges  or  deposits  in  connection  with  workers’  compensation,        unemployment insurance and other social security legislation;               (d)   pledges or deposits to secure the performance of bids, supplier and other        trade contracts (other than for borrowed money), leases, statutory obligations (other than        for borrowed money), leases, statutory obligations (other than any such obligation imposed        pursuant to Section 430(k) of the Code or Sections 303(k) or 4068 of ERISA), surety and        appeal bonds, performance bonds and other obligations of a like nature incurred in the        ordinary course of business;               (e)   [reserved];               (f)   Liens in existence on the Closing Date (provided that Liens securing any        Indebtedness in an aggregate principal amount in excess of $5,000,000 shall be listed on        Schedule 7.3(f)), securing Indebtedness permitted by Section 7.2(e); provided that no such        Lien is spread to cover any additional property after the Closing Date and that the amount        of  Indebtedness  secured  thereby  is  not  increased  (other  than,  in  the  case  of  Permitted        Refinancing Indebtedness, by any Additional Permitted Amount);               (g)   Liens securing  Indebtedness  of any Group Member incurred pursuant  to        Section  7.2(f); provided that  (i)  such  Liens  shall  be  created  within  180  days  of  the                                        100  509265-2041-31349836.23  





 






         acquisition of such fixed or capital assets and (ii) such Liens do not at any time encumber        any property other than the property financed by such Indebtedness and the proceeds and        products and extensions thereof; provided further that in the event that purchase money        obligations are owed to any Person with respect to financing of more than one purchase of        any fixed or capital assets, such Liens may secure all such purchase money obligations and        may apply to all such fixed or capital assets financed by such Person;               (h)   (i) Liens on the Collateral created pursuant to the Security Documents (or        any ABL Security Documents (as defined in the Intercreditor Agreement)), (ii) Liens on        cash granted in favor of any Lenders and/or the Issuing Lender created as a result of any        requirement to provide cash collateral pursuant to this Agreement and (iii) subject to the        Intercreditor  Agreement,  Liens  on  the  Collateral  created  pursuant  to  the  Term  Loan        Security  Documents  (or  any  Term  Loan  Security  Documents  (as  defined  in  the        Intercreditor Agreement));               (i)   any interest or title of a lessor under any lease entered into by any Group        Member in the ordinary course of its business and covering only the assets so leased;               (j)   Liens solely on any cash earnest money deposits made by the Borrower or        any Restricted Subsidiary in connection with any letter of intent or purchase agreement        relating to a Permitted Acquisition or other third party Investment;               (k)   Liens in favor of any Loan Party so long as (in the case of any Lien granted        by  a  Loan  Party)  such  Liens  are  junior  to  the  Liens  created  pursuant  to  the  Security        Documents;               (l)   Liens arising from filing Uniform Commercial Code or personal property        security  financing  statements  (or  substantially  equivalent  filings  outside  of  the  United        States) regarding leases;               (m)   any option or other agreement to purchase any asset of any Group Member,        the purchase, sale or other disposition of which is not prohibited by Section 7.5;               (n)   Liens arising from the rendering of an interim or final judgment or order        against any Group Member that does not give rise to an Event of Default;               (o)   Liens existing on any asset prior to the acquisition thereof by the Borrower        or  any  Restricted  Subsidiary  or  existing  on  any  asset  of  any  Person  that  becomes  a        Restricted  Subsidiary  (or  of  any  Person  not  previously  a  Restricted  Subsidiary  that  is        merged  or  consolidated  with  or  into  a  Restricted  Subsidiary  in  a  transaction  permitted        hereunder)  after  the  Closing  Date  prior  to  the  time  such  Person  becomes  a  Restricted        Subsidiary (or is so merged or consolidated) to the extent the Liens on such assets secure        Indebtedness permitted by Section 7.2(o) so long as the aggregate outstanding principal        amount of the obligations  secured thereby  (as  to all Group Members) does  not  exceed        $100,000,000; provided that  (i)  such  Liens  are  not  created  in  contemplation  of  or  in        connection with such acquisition or such Person becoming a Restricted Subsidiary (or such        merger or consolidation) and (ii) such Liens attach at all times only to the same assets or        category of assets that such Liens (other than after acquired property that is affixed or                                        101  509265-2041-31349836.23  





 






         incorporated into the property covered by such Lien) attached to, and secure only the same        Indebtedness or obligations (or any Permitted Refinancing Indebtedness in respect thereof        permitted by Section 7.2(o)) that such Liens secured, immediately prior to such permitted        acquisition;               (p)   Liens arising out of conditional sale, title retention, consignment or similar        arrangements  for  sale  of  goods  entered  into  by  the  Borrower  or  any  other  Restricted        Subsidiary in the ordinary course of business and permitted by this Agreement;               (q)   [reserved];                (r)   Liens encumbering reasonable and customary initial deposits and margin        deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course        of business and not for speculative purposes;                (s)   Liens in favor of customs and revenue authorities arising as a matter of law        to secure payment of customs duties in connection with the importation of goods in the        ordinary course of business;               (t)   Liens on premium refunds granted in favor of insurance companies (or their        financing affiliates) in connection with the financing of insurance premiums;               (u)   banker’s liens, rights of setoff or similar rights and remedies as to deposit        accounts or other funds maintained with depository institutions and securities accounts and        other financial assets maintained with a securities intermediary; provided that such deposit        accounts or funds and securities accounts or other financial assets are not established or        deposited for the purpose of providing collateral for any Indebtedness and are not subject        to restrictions on access by the Borrower or any Restricted Subsidiary in excess of those        required by applicable banking regulations;                 (v)   Liens  (i)  on  cash  advances  in  favor  of  the  seller  of  any  property  to be        acquired  in  an  Investment  permitted  pursuant  to  Section  7.7  to  be  applied  against  the        purchase price for such Investment or (ii) consisting of an agreement to dispose of any        property in a Disposition permitted by Section 7.5, in each case, solely to the extent such        Investment or Disposition, as the case may be, would have been permitted on the date of        the creation of such Lien;                (w)   Liens on assets of Restricted Subsidiaries that are not Loan Parties so long        as the aggregate outstanding principal amount of the obligations secured thereby does not        exceed (as to all Group Members) $50,000,000;                (x)   Liens on the Collateral securing (i) Term Loan Incremental Equivalent Debt        permitted under Section 7.2(t) and (ii) any Permitted Refinancing Indebtedness in respect        thereof; provided that the Liens on the Collateral securing any such Indebtedness shall be        (A) junior, with respect to ABL Priority Collateral, to the Liens on the Collateral securing        the Obligations and (B) subject to the Intercreditor Agreement or such other intercreditor        agreement in form and substance reasonably satisfactory to the Administrative Agent;                                        102  509265-2041-31349836.23  





 






               (y)   [reserved];               (z)   Liens not otherwise permitted by this Section 7.3 so long as the aggregate        outstanding principal amount of the obligations secured thereby does not exceed (as to all        Group Members) $25,000,000;               (aa)  Liens on property purportedly rented to, or leased by, the Borrower or any        of its Restricted Subsidiaries pursuant to a sale and leaseback transaction permitted under        Section  7.10; provided that  (i)  such  Liens  do  not  encumber  any  other  property  of  the        Borrower  or  its  Restricted  Subsidiaries  and  (ii)  such  Liens  secure  only  Indebtedness        permitted under Section 7.2(x);               (bb)  Liens in favor of the applicable trustee on amounts deposited into escrow in  connection with the redemption, defeasance or satisfaction and discharge of bonds, debentures,  notes or similar instruments (including in connection with the Existing Indebtedness Refinancing);               (cc)  (i) pledges  and deposits  and other  Liens made in the ordinary course of  business  in  compliance  with  the  Federal  Employers  Liability  Act  or  any  other  workers’  compensation, unemployment insurance and other social security laws or regulations and deposits  securing liability to insurance carriers under insurance or self-insurance arrangements in respect  of  such  obligations  and  (ii)  pledges  and  deposits  and  other  Liens  securing  liability  for  reimbursement  or  indemnification  obligations  of  (including  obligations  in  respect  of  letters  of  credit or bank guarantees  for the benefit  of) insurance carriers providing property, casualty or  liability insurance to any Group Member;               (dd)  easements, trackage rights, leases, licenses, special assessments, rights of  way covenants, zoning restrictions, covenants, conditions, restrictions and declarations on or with  respect  to  the  use  of  real  property,  servicing  agreements,  development  agreements,  site  plan  agreements, encumbrances and title defects or irregularities that are of a minor nature that, in each  case, do not, in the aggregate, interfere in any material respect with the ordinary conduct of the  business of Borrower or any of the Restricted Subsidiaries;               (ee)  Liens on Capital Stock of any joint venture (i) securing obligations of such  joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement; and               (ff)  Liens  securing  Indebtedness  of  any  Foreign  Subsidiary  that  is  not  a  Subsidiary Guarantor securing Indebtedness of such Foreign Subsidiary that is permitted by this  Agreement.   provided that until the Disposition of the Company Headquarters in a manner permitted by this  Agreement, no Lien shall encumber the Company Headquarters other than non-consensual Liens  arising by operation of law and Liens described in, and permitted under, Section 7.3(b), 7.3(m) or  7.3(dd).   For purposes of determining compliance with this Section 7.3, in the event that a Lien securing an  item of Indebtedness (or any portion thereof) meets the criteria for more than one of the categories  of Liens described in clauses (a) through (ff) above, the Borrower may, in its sole discretion, divide  or classify or later divide, classify or reclassify all or a portion of such Lien in a manner that                                        103  509265-2041-31349836.23  





 






   complies with this Section 7.3 and will only be required to include the amount and type of such  Lien in one or more of the above clauses; provided that all Liens securing Indebtedness outstanding  under the Loan Documents and the Term Loan Credit Agreement, and, in each case, any Permitted  Refinancing thereof, will at all times be deemed to be outstanding in reliance only on the exception  in Section 7.3(h).               7.4   Fundamental  Changes.   Enter  into  any  merger,  consolidation  or  amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or  Dispose of all or substantially all of its property or business, except that:               (a)   any Restricted Subsidiary of the Borrower may be merged or consolidated        with or into the Borrower (provided that the Borrower shall be the continuing or surviving        corporation)  or  with  or  into  any  other  Restricted  Subsidiary  (provided,  that  when  any        Subsidiary Guarantor is merging with or into another Restricted Subsidiary that is not a        Subsidiary Guarantor (except as permitted by Section 7.4(b)), such Subsidiary Guarantor        shall be the continuing or surviving corporation or the continuing or surviving corporation        shall, substantially simultaneously with such merger or consolidation, become a Subsidiary        Guarantor);               (b)   any Restricted Subsidiary may merge, consolidate or amalgamate with any        other Person (other than the Borrower) in order to effect an Investment permitted pursuant        to Section 7.7; provided that if such Restricted Subsidiary is a Subsidiary Guarantor the        continuing or surviving Person shall be a Subsidiary Guarantor;                (c)   any Restricted Subsidiary of the Borrower may Dispose of any or all of its        assets  (i)  to  the  Borrower  or  any  Subsidiary  Guarantor  (upon  voluntary  liquidation  or        otherwise) or (ii) pursuant to a Disposition permitted by Section 7.5; and                (d)   any Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor        may (i) dispose of any or all or substantially all of its assets to any Group Member (upon        voluntary liquidation or otherwise) or (ii) liquidate or dissolve if the Borrower determines        in good faith that such liquidation or dissolution is in the best interest of the Borrower and        is not materially disadvantageous to the Administrative Agent or the Lenders.                7.5   Disposition of Property.  Dispose of any of its property, whether now owned  or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such  Restricted Subsidiary’s Capital Stock to any Person, except:               (a)   the Disposition of surplus, outdated, obsolete or worn out property in the        ordinary course of business;               (b)   Dispositions  of  Inventory,  equipment  held  for  sale,  cash  and  Cash        Equivalents, in each case, in the ordinary course of business;               (c)   Dispositions permitted by Section 7.4(c)(i) or Section 7.4(d)(i);                                         104  509265-2041-31349836.23  





 






               (d)   the  sale  or  issuance  of  any  Restricted  Subsidiary’s  Capital  Stock  to  the        Borrower or any Subsidiary Guarantor or on a pro rata basis to the owners of its Capital        Stock;                (e)   Dispositions of Accounts in connection with the compromise, settlement or        collection thereof in the ordinary course of business consistent with past practice and not        as part of any accounts receivables financing transaction;               (f)   Dispositions of assets (including as a result of like-kind exchanges) to the        extent that (i) such assets are exchanged for credit (on a fair market value basis) against the        purchase price of similar or replacement assets or (ii) such asset is Disposed of for fair        market value and the proceeds of such Disposition are promptly applied to the purchase        price of similar or replacement assets;               (g)   Dispositions resulting from any casualty or other insured damage to, or any        taking under power of eminent domain or by condemnation or similar proceeding of, any        asset of any Group Member;               (h)   licenses  and  sublicenses  and  similar  rights  granted  with  respect  to        Intellectual Property granted in the ordinary course of business;               (i)   the  abandonment,  cancellation,  non-renewal  or  discontinuance  of  use  or        maintenance  of  non-material  Intellectual  Property  or  rights  relating  thereto  that  the        Borrower  determines  in  its  reasonable  judgment  to  be  desirable  to  the  conduct  of  its        business and not materially disadvantageous to the interests of the Lenders;                (j)   licenses, leases or subleases entered into in the ordinary course of business,        to the extent that they do not materially interfere with the business of the Borrower or any        Restricted Subsidiary;               (k)   Dispositions  to  any  Group  Member; provided that  any  such  Disposition        involving  a  Restricted  Subsidiary  that  is  not  a  Subsidiary  Guarantor  shall  be  made  in        compliance with Sections 7.7 and 7.9;               (l)    (i) Dispositions of assets to the extent that such Disposition constitutes an        Investment referred to in and permitted by Section 7.7, (ii) Dispositions of assets to the        extent that such Disposition constitutes a Restricted Payment referred to in and permitted        by Section 7.6, (iii) Dispositions set forth on Schedule 7.5(l) and (iv) sale and leaseback        transactions permitted under Section 7.10;               (m)   [reserved];               (n)   other Dispositions of assets (including Capital Stock); provided that (A) it        shall be for fair market value (determined as if such Disposition was consummated on an        arm’s-length basis), (B) at least 75% of the total consideration for any such Disposition in        excess of $10,000,000 received by the Borrower and its Restricted Subsidiaries shall be in        the form of cash or Cash Equivalents and (C) no Event of Default then exists or would        result from such Disposition (except if such Disposition is made pursuant to an agreement                                        105  509265-2041-31349836.23  





 






         entered  into  at  a  time  when  no  Event  of  Default  exists); provided, however,  that  for        purposes of clause (B) above, the following shall be deemed to be cash:  (I) any liabilities        (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet        provided  hereunder  or  in  the  footnotes  thereto)  of  the  Borrower  or  such  Restricted        Subsidiary (other than liabilities that are by their terms subordinated to the Obligations)        that are assumed by the transferee with respect to the applicable Disposition and for which        the  Borrower  and  its  Restricted  Subsidiaries  shall  have  been  validly  released  by  all        applicable  creditors  in  writing,  (II)  any  securities  received  by  the  Borrower  or  such        Restricted Subsidiary  from  such transferee that  are  converted by the Borrower or such        Restricted Subsidiary into cash  or Cash  Equivalents  (to the extent of the cash  or Cash        Equivalents  received  in  the  conversion)  within  180  days  following  the  closing  of  the        applicable Disposition and (III) any Designated Non-Cash Consideration received by the        Borrower or any of its Restricted Subsidiaries in such Disposition having an aggregate fair        market value, taken together with all other Designated Non-Cash Consideration received        pursuant to this Section 7.5(n) that is at that time outstanding, not to exceed $25,000,000        (with  the  fair  market  value  of  each  item  of  Designated  Non-Cash  Consideration  being        measured at the time received and without giving effect to subsequent changes in value);                (o)   other Dispositions in any fiscal year of other property having a fair market        value not to exceed 7.5% of Consolidated Total Assets when made; provided that no Event        of Default then exists or would result from such Disposition (except if such Disposition is        made pursuant to an agreement entered into at a time when no Event of Default exists);               (p)   Dispositions (i) to or by the Insurance Subsidiary of Capital Stock of the        Borrower, (ii) to or by the Insurance Subsidiary of Indebtedness described in Section 7.2(r)        to the Borrower or any Wholly Owned Subsidiary that is a Loan Party and (iii) by the        Insurance Subsidiary effected solely for the purpose of liquidating assets in order to permit        the Insurance Subsidiary to pay expenses and to make payments on insurance claims of the        Borrower or any of its Restricted Subsidiaries with the proceeds of such Disposition;               (q)   Dispositions of real property in the ordinary course to the extent such real        property is Disposed of for fair market value and the proceeds of such Disposition are        applied within 360 days to the purchase price of similar or replacement real property;               (r)   Dispositions of non-core assets acquired in connection with any acquisition        or Investment permitted hereunder which, on or prior to the date of such acquisition or        Investment, are designated in writing to the Administrative Agent as being held for sale        and not for the continued operation of the Borrower or any of its Restricted Subsidiaries or        any of their respective businesses; provided that (i) the Consolidated EBITDA generated        by such non-core assets (as determined by the Borrower in good faith) shall not have been        included in the calculation of Consolidated EBITDA in respect of any testing of ratios or        governors on a Pro Forma Basis in connection with such acquisition and (ii) no Event of        Default  exists  on  the  date  on  which  the  definitive  agreement  governing  the  relevant        Disposition is executed; and               (s)   Dispositions of the Mexico Operations for fair market value.                                         106  509265-2041-31349836.23  





 






               7.6   Restricted Payments.  Declare or pay any dividend (other than dividends  payable solely in common stock of the Person making such dividend) on, or make any payment  on  account  of,  or  set  apart  assets  for  a  sinking  or  other  analogous  fund  for,  the  purchase,  redemption,  defeasance,  retirement  or  other  acquisition  of,  any  Capital  Stock  (other  than  Disqualified Capital Stock) of any Group Member, whether now or hereafter outstanding, or make  any other distribution in respect thereof, either directly or indirectly, whether in cash or property  or in obligations of any Group Member (collectively, “Restricted Payments”), except that:               (a)   any  Restricted  Subsidiary  may  make  Restricted  Payments  ratably  to  its        equity holders (or if not ratably, on a basis more favorable to the Borrower and the other        Loan Parties);                (b)   the Borrower may purchase or redeem its common stock or common stock        options  from  present,  future  or  former  directors,  officers  or  employees  of  any  Group        Member upon the death, disability or termination of employment of such director, officer        or employee, provided, that the aggregate amount of payments under this Section 7.6(b)        after the Closing Date (net of any proceeds received by the Borrower after the Closing Date        in connection with resales of any common stock or common stock options so purchased)        shall  not  exceed  $5,000,000  in  any  fiscal  year  (with  unused  amounts  in  any  period        permitted to be carried over to succeeding periods until used in full; provided that the total        amount of such purchases or redemptions under this Section 7.6(b) in any fiscal year shall        not exceed $10,000,000);               (c)   the  Borrower  may  declare  and  pay  dividends  with  respect  to  its  Capital        Stock payable solely in shares of Qualified Capital Stock;               (d)   the Borrower may make cash payments in lieu of the issuance of fractional        shares representing insignificant interests in the Borrower in connection with the exercise        of warrants, options or other securities convertible into or exchangeable for Capital Stock        in the Borrower;               (e)   the  Borrower  may  acquire  its  Capital  Stock  upon  the  exercise  of  stock        options for such Capital Stock of the Borrower if such Capital Stock represents a portion        of the exercise price of such stock options or in connection with tax withholding obligations        arising in connection with the exercise of options by, or the vesting of restricted Capital        Stock held by, any current or former director, officer or employee of any Group Member;               (f)   the Borrower may convert or exchange any of its Capital Stock for or into        Qualified Capital Stock;               (g)   so  long  as  the  Payment  Conditions  are  met,  the  Borrower  may  make        Restricted Payments;                (h)   so long as no Event of Default shall have occurred and be continuing or        would result therefrom, the Borrower may on any date make Restricted Payments in an        aggregate amount, together with Restricted Debt Payments made under Section 7.8(a)(iv),        not to exceed $30,000,000 in any fiscal year;                                        107  509265-2041-31349836.23  





 






               (i)   the  Borrower  may  repurchase  shares  of  its  common  stock  from  the        Insurance Subsidiary in an amount necessary to (i) pay operating costs and expenses of the        Insurance Subsidiary incurred in the ordinary course of business (not to exceed $250,000        per fiscal year of the Borrower) and (ii) permit the Insurance Subsidiary to make payments        on insurance claims of the Borrower and/or any of its Subsidiaries with the proceeds of        such repurchase;               (j)   the Insurance Subsidiary may purchase shares of the common stock of the        Borrower from the Borrower or any Restricted Subsidiary; and               (k)   the  Borrower  may  repurchase  shares  of  its  common  stock  from  the        Insurance Subsidiary in exchange for the issuance of one or more notes or other forms of        Indebtedness owed to the Insurance Subsidiary.   For  purposes  of  determining  compliance  with  this  Section  7.6,  in  the  event  that  a  Restricted  Payment meets the criteria of more than one of the categories of Restricted Payments described in  clauses (a) through (k) above, the Borrower may, in its sole discretion, divide or classify or later  divide, classify or reclassify all or a portion of such Restricted Payment in a manner that complies  with this Section 7.6 and will only be required to include the amount and type of such Restricted  Payment in one or more of the above clauses.               7.7   Investments.   Make  any  advance,  loan,  extension  of  credit  (by  way  of  guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes,  debentures or other debt securities of, or any assets constituting a business unit of, or make any  other investment in, any other Person (all of the foregoing, “Investments”), except:               (a)   extensions of trade credit in the ordinary course of business;               (b)   investments in cash and Cash Equivalents;               (c)   Guarantee Obligations of any Group Member in respect of Indebtedness or        other  obligations  of  the  Borrower  or  any  Restricted  Subsidiary  (including  any  such        Guarantee Obligations arising as a result of any such Person being a joint and several co-       applicant with respect to any letter of credit or letter of guaranty); provided that (i) any        Guarantee Obligations incurred by a Loan Party in respect of Subordinated Indebtedness        shall be subordinated to the Obligations on terms no less favorable to the Lenders than        those of the Subordinated Indebtedness and (ii) Guarantee Obligations of any Loan Party        of Indebtedness of any Restricted Subsidiary that is not a Loan Party shall be permitted to        the extent the aggregate amount of outstanding Guarantee Obligations incurred pursuant to        this clause (ii) does not exceed $25,000,000;               (d)   loans  and  advances  to  directors,  officers  and  employees  of  any  Group        Member  in  the  ordinary  course  of  business  (including  for  travel,  entertainment  and        relocation  expenses)  in  an  aggregate  amount  for  the  Borrower  and  its  Restricted        Subsidiaries not to exceed $5,000,000 at any one time outstanding;               (e)   [reserved];                                        108  509265-2041-31349836.23  





 






               (f)   Investments  in  assets  useful  in  the  business  of  the  Borrower  and  its        Restricted  Subsidiaries  made  by  any  Group  Member  with  the  proceeds  of  any        Reinvestment Deferred Amount (as defined in the Term Loan Credit Agreement as in effect        on the date hereof, together with any amendments and modifications that are not materially        adverse to the Lenders);               (g)   intercompany  Investments  by  any  Group  Member  in  any  other  Group        Member; provided that any Investment by any Loan Party in a Restricted Subsidiary that        is not a Loan Party shall be permitted to the extent the aggregate amount of outstanding        Investments  pursuant  to  this  clause  (g)  (less  any  returns  (including  dividends,  interest,        distributions, returns of principal, profits on sale, repayments, income and similar amounts)        actually received in respect of any such Investments (excluding any returns in excess of        the amount originally invested)) does not exceed $25,000,000;               (h)   any Permitted Acquisition; provided that (i) the Borrower has delivered ((I)        in the case of a Permitted Acquisition made pursuant to Section 7.7(h)(iv)(A) and (II) in        the case of all other Permitted Acquisitions to the extent made available to the Loan Parties)        (A) the most recently available consolidated balance sheet of the entity being acquired and        its consolidated subsidiaries (or the assets, if an acquisition of assets) as at the end of the        most recently ended fiscal year and/or quarter, as applicable, and the related consolidated        statements  of  income,  stockholders’  equity  and  cash  flows  for  such  period,  which        statements need not be GAAP compliant, and (B) the unaudited pro forma consolidated        balance sheets and related pro forma consolidated statements of income of the Borrower        and  its  consolidated  Restricted  Subsidiaries  for  four  fiscal  quarters  following  such        Permitted  Acquisition  (excluding  the  notes  thereto  unless  such  notes  are  otherwise        provided to or prepared by the  Borrower), which statements need not be GAAP compliant,        (ii)  after  giving  effect  thereto,  the  Borrower  and  its  Restricted  Subsidiaries  are  in        compliance  with  Section  7.15,  (iii)  any  such  newly  created  or  acquired  Subsidiary  has        complied with the requirements of Section 6.10 and (iv) either (A)(1) for 20 consecutive        days prior to such Permitted Acquisition, pro forma Availability is no less than the greater        of (x) 15% of the Line Cap and (y) $33,750,000 and (2) the pro forma Consolidated Fixed        Charge Coverage Ratio for the last four quarters is no less than 1.10:1.00 or (B) for 20        consecutive days prior to such Permitted Acquisition, pro forma Availability is no less than        the greater of (x) 30% of the Line Cap and (y) $67,500,000;               (i)   promissory notes and other non-cash consideration received in connection        with Dispositions permitted by Section 7.5;               (j)   Investments acquired as a result of the purchase or other acquisition by any        Group  Member  in  connection  with  a  Permitted  Acquisition; provided,  that  such        Investments were not made in contemplation of such Permitted Acquisition and were in        existence at the time of such Permitted Acquisition;               (k)   Investments existing on the Closing Date (provided that Investments in an        aggregate  outstanding  amount  in  excess  of  $5,000,000  shall  be set  forth  on  Schedule        7.7(k)) and any modification, refinancing, renewal, refunding, replacement or extension                                         109  509265-2041-31349836.23  





 






         thereof; provided that the amount of any Investment permitted pursuant to this Section        7.7(k) is not increased from the amount of such Investment on the Closing Date;               (l)   Investments received in connection with the bankruptcy or reorganization        of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each        case in the ordinary course of business;               (m)   Investments of a Restricted Subsidiary acquired after the Closing Date or of        a corporation merged into the Borrower or merged or consolidated with any Restricted        Subsidiary, in each case in accordance with Section 7.4 after the Closing Date, to the extent        that  such  Investments  were  not  made  in  contemplation  of  or  in  connection with  such        acquisition, merger or consolidation and were in existence on the date of such acquisition,        merger or consolidation;               (n)   Guarantees by the Borrower or any Restricted Subsidiary of leases (other        than Finance Lease Obligations) or of other obligations that do not constitute Indebtedness,        in each case entered into in the ordinary course of business;                (o)   Investments  made  to  effect  the  pledges  and  deposits  described  in,  and        permitted under, Section 7.3(c) and (d);               (p)   Investments by the Borrower or any Restricted Subsidiary that result solely        from the receipt by the Borrower or such Restricted Subsidiary from any of its Subsidiaries        of  a  dividend  or  other  Restricted  Payment  in  the  form  of  Capital  Stock,  evidences  of        Indebtedness or other securities (but not any additions thereto made after the date of the        receipt thereto);               (q)   mergers and consolidations permitted under Section 7.4 that do not involve        any Person other than the Borrower and Restricted Subsidiaries that are Wholly Owned        Subsidiaries;               (r)   Investments; provided that the Payment Conditions are met;                (s)   [reserved];                (t)   Investments  by  the  Borrower  or  any  of  its  Restricted  Subsidiaries  in  an        aggregate amount (valued at cost), taken together with all other outstanding Investments        made  pursuant  to  this  Section  7.7(t)  (less any  returns  (including  dividends,  interest,        distributions, returns of principal, profits on sale, repayments, income and similar amounts)        actually received in respect of any such Investments (excluding any returns in excess of        the amount originally invested)), not to exceed from and after the Closing Date the greater        of (i) $20,000,000 and (ii) 9% of Consolidated EBITDA (as of the most recent fiscal quarter        end for which financial statements have been delivered pursuant to Section 6.1(a) or (b));               (u)   (i) any Investment in any Joint Venture or Unrestricted Subsidiary and (ii)        any  Permitted  Acquisition  of  Persons  that  do  not,  upon  acquisition  thereof,  become        Subsidiary Guarantors, and property that is not, upon acquisition thereof, owned by Loan        Parties; provided that the aggregate outstanding amount of the Investments and Permitted                                        110  509265-2041-31349836.23  





 






         Acquisitions  consummated pursuant  to  this Section 7.7(u) (with respect  to  Investments        pursuant to clause (i), valued at cost, and with respect to Permitted Acquisitions pursuant        to  clause  (ii),  the  Investment  amount  thereof  shall  be  as  valued  in  good  faith  by  the        Borrower and shall include cash and equity (including Disqualified Capital Stock of any        Subsidiaries not organized under the laws of any jurisdiction within the United States, but        excluding any other equity of such Subsidiaries)), less any returns (including dividends,        interest, distributions, returns of principal, profits on sale, repayments, income and similar        amounts) actually received in respect of any such Investments (excluding any returns in        excess of the amount originally invested), shall not exceed at any time outstanding the        greater of (i) $25,000,000 and (ii) 11% of Consolidated EBITDA (as of the most recent        fiscal quarter end for which financial statements have been delivered pursuant to Section        6.1(a) or (b));               (v)   Investments made in the Insurance Subsidiary (i) to the extent required to        meet regulatory capital guidelines, policies or rules in an amount not exceed $35,000,000        in the aggregate at any one time outstanding and (ii) in amounts not to exceed, in any fiscal        year of the Borrower, the lesser of (x) $75,000,000 and (y) the amount that will appear as        an expense for self-insurance costs on the Borrower’s consolidated income statement;                (w)   Investments in the Insurance Subsidiary consisting of the contribution of        common  stock  of  the  Borrower  and  Investments  by  the  Insurance  Subsidiary  in  the        common stock of the Borrower;                (x)   Investments  by  the  Insurance  Subsidiary  in  Indebtedness  of  the  Group        Members permitted by Section 7.2(r);               (y)   Investments made to consummate the Merchants Preferred Acquisition;               (z)   Investments by the Borrower in the Insurance Subsidiary in connection with        the repurchase of the Borrower’s common stock from the Insurance Subsidiary in exchange        for the issuance of one or more notes or other forms of Indebtedness owed to the Insurance        Subsidiary; and               (aa)  Investments, taken together with all other outstanding Investments made        pursuant  to  this  Section  7.7(aa)  (less  any  returns  (including  dividends,  interest,        distributions, returns of principal, profits on sale, repayments, income and similar amounts)        actually received in respect of any such Investments (excluding any returns in excess of        the amount originally invested)), in an aggregate amount (valued at cost) not to exceed the        Net Cash Proceeds (Not Otherwise Applied) received after the Closing Date and on or prior        to such date from any issuance of Qualified Capital Stock by the Borrower (other than any        such issuance to a Group Member).   For purposes of determining compliance with this Section 7.7, in the event that an Investment  meets the criteria of more than one of the categories of Investments described in clauses (a) through  (aa) above, the Borrower may, in its sole discretion, divide or classify or later divide, classify or  reclassify all or a portion of such Investment in a manner that complies with this Section 7.7 and                                         111  509265-2041-31349836.23  





 






   will only be required to include the amount and type of such Investment in one or more of the  above clauses.               7.8   Optional  Payments  and  Modifications  of  Certain  Debt  Instruments.   (a)   Make  or  offer  to  make  any  optional  or  voluntary  payment,  prepayment,  repurchase  or  redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to any  Junior Indebtedness (any of the foregoing, a “Restricted Debt Payment”) other than:                      (i)   refinancings of Junior Indebtedness with the proceeds of Permitted              Refinancing Indebtedness permitted in respect thereof under Section 7.2;                     (ii)  Restricted Debt Payments made solely with Qualified Capital Stock              or the conversion of any Junior Indebtedness into Qualified Capital Stock;                      (iii) Restricted Debt  Payments; provided that the Payment  Conditions              are met;                      (iv)  so long as no Event of Default shall have occurred and be continuing              or would result therefrom, Restricted Debt Payments in an aggregate amount not to              exceed, together with the aggregate amount of Restricted Payments made pursuant              to Section 7.6(h), $30,000,000 per fiscal year of the Borrower; and                     (v)   prepayments  of  intercompany  Junior  Indebtedness  permitted              hereunder owed by the Borrower or any Restricted Subsidiary to the Borrower or              any Restricted Subsidiary; provided that no prepayment of any Junior Indebtedness              owed by any Loan Party to any Restricted Subsidiary that is not a Loan Party shall              be permitted so long as the Payment Conditions are not met.                For purposes of determining compliance with this Section 7.8(a), in the event that  a Restricted Debt Payment meets the criteria of more than one of the categories of Restricted Debt  Payments described in  clauses (i) through (v) above, the Borrower may, in its sole discretion,  divide or classify or later divide, classify or reclassify all or a portion of such Restricted Debt  Payment in a manner that complies with this Section 7.7(a) and will only be required to include  the amount and type of such Restricted Debt Payment in one or more of the above clauses.               Notwithstanding anything to the contrary contained in this Section 7.8(a), in no  event shall any payment in respect of Subordinated Indebtedness be permitted if such payment is  in violation of the subordination provisions of such Subordinated Indebtedness.                (b)   Amend,  modify,  waive  or  otherwise  change,  or  consent  or  agree  to  any  amendment, modification, waiver or other change to, any of the terms of any Junior Indebtedness  (other than any such amendment, modification, waiver or other change that would not materially  and adversely affect the interests of the Lenders).               7.9   Transactions  with  Affiliates.  Enter  into  any  transaction,  including  any  purchase, sale, lease or exchange of property, the rendering of any service or the payment of any  management, advisory or similar fees, with any Affiliate in excess of $10,000,000, unless such  transaction is on terms not materially less favorable to the Borrower or such Restricted Subsidiary,                                        112  509265-2041-31349836.23  





 






   as applicable, than would be obtainable in a comparable arms-length transaction with a person that  is not an Affiliate; provided that this Section 7.9 shall not limit:               (a)   issuances  of  securities,  or  other  payments,  awards  or  grants  in  cash,  securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase  agreements, stock options, stock ownership plans and similar and like arrangements approved by  the board of directors of the Borrower;               (b)   compensation,  insurance,  employment,  employee  benefit  and  severance  arrangements  between  the  Borrower  or  any  Subsidiary  and  any  director,  officer,  employee  or  consultant thereof;               (c)   the payment of directors’ fees and indemnification and reimbursement of  expenses to directors, officers or employees;               (d)   transactions between or among the Loan Parties;                (e)   transactions between or among the Borrower and its Restricted Subsidiaries  or by and among Restricted Subsidiaries in the ordinary course of business;               (f)   Investments permitted by Section 7.7(d), Restricted Payments or Restricted  Debt Payments expressly permitted by this Agreement;               (g)   intercompany  transactions  undertaken  in  good  faith  for  the  purpose  of  improving the consolidated tax efficiency of the Group Members;               (h)   transactions  disclosed  in  the  Borrower’s  SEC  filings  made  prior  to  the  Closing Date;               (i)   any transaction with any Person who is not an Affiliate immediately before  the consummation of such transaction that becomes an Affiliate as a result of such transaction; and                (j)    payroll,  travel,  business  entertainment  and  similar  advances  to  officers,  directors, employees and consultants of the Borrower or any Subsidiary to cover matters that are  expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary  for accounting purposes and that are made in the ordinary course of business.               7.10  Sales  and  Leasebacks.   Enter  into  any  arrangement  with  any  Person  providing for the leasing by any Group Member of real property that has been or is to be sold or  transferred by such Group Member to such Person or to any other Person to whom funds have  been or are to be advanced by such Person on the security of such property or rental obligations of  such Group Member, unless the Net Cash Proceeds received by the applicable Group Member in  connection with such transaction are at least equal to the fair market value (as determined by the  Borrower) of such property; provided that, other than with respect to the sale-leaseback of the  Company Headquarters, the aggregate amount of consideration paid to the Group Members (and  the  aggregate  principal  amount  of  any  Attributable  Indebtedness)  in  respect  of  transactions  permitted under this Section 7.10 shall not exceed $15,000,000.                                          113  509265-2041-31349836.23  





 






               7.11  Swap  Agreements.   Enter  into  any  Swap  Agreement,  except  Swap  Agreements entered into for bona fide hedging purposes and not for speculation.               7.12  Changes in Fiscal Periods.  Permit the fiscal year of the Borrower to end on  a day other than calendar year end or change the Borrower’s method of determining fiscal quarters,  in each case without the consent of the Administrative Agent.               7.13  Negative Pledge Clauses.  Enter into or suffer to exist or become effective  any agreement that prohibits or limits the ability of any Group Member (other than the Insurance  Subsidiary) to create, incur, assume or suffer to exist any Lien upon any of its property or revenues,  whether now owned or hereafter acquired to secure its obligations under the Loan Documents to  which it is a party other than (a) (i) this Agreement, the other Loan Documents and the Term Loan  Documents, (ii) any agreement governing any Indebtedness incurred pursuant to Section 7.2 to the  extent such prohibition or limitation is customary in agreements governing Indebtedness of such  type and in any event so long as such agreement is not materially more restrictive (taken as a  whole) than the Loan Documents (as conclusively determined by the Borrower in good faith) and  (iii) any agreement governing any Permitted Refinancing Indebtedness in respect of the Loans, the  Term Loans or Indebtedness incurred pursuant to Section 7.2, in each case, with respect to this  clause (iii), so long as any such agreement is not materially more restrictive (taken as a whole)  than  the  Loan  Documents,  the  Term  Loan  Documents  or  the  documents  governing  the  Indebtedness being refinanced, as applicable (as conclusively determined by the Borrower in good  faith), (b) any agreements governing any purchase money Liens or Finance Lease Obligations  otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective  against the assets financed thereby), (c) any agreement in effect at the time any Subsidiary becomes  a Restricted Subsidiary of the Borrower, so long as such prohibition or limitation applies only to  such Restricted Subsidiary (and, if applicable, its Subsidiaries) and such agreement was not entered  into in contemplation of such Person becoming a Restricted Subsidiary of the Borrower, as such  agreement may be amended, restated, supplemented, modified extended renewed or replaced, so  long  as  such  amendment,  restatement,  supplement,  modification,  extension,  renewal  or  replacement does not expand in any material respect the scope of any restriction contemplated by  this Section 7.13 contained therein, (d) customary provisions restricting assignments, subletting,  sublicensing, pledging or other transfers contained in leases, subleases, licenses or sublicenses, so  long as such restrictions are limited to the property or assets subject to such leases, subleases,  licenses or sublicenses, as the case may be, (e) (i) restrictions imposed by applicable law and (ii)  contractual encumbrances or restrictions in effect on the Closing Date and listed on Schedule 7.13,  (f) customary provisions in joint venture agreements and other similar agreements entered into in  the ordinary course of business, (g) customary provisions restricting assignment of any agreement  entered into in the ordinary course of business, (h) customary restrictions and conditions contained  in the document relating to any Lien other than relating to Indebtedness, so long as (i) such Lien  is a Lien permitted by Section 7.3 and such restrictions or conditions relate only to the specific  asset subject to such Lien and (ii) such restrictions and conditions are not created for the purpose  of  avoiding  the  restrictions  imposed  by  this  Section  7.13,  (i)  customary  net  worth  provisions  contained in real property leases entered into by the Group Members, so long as the Borrower has  determined in good faith that such net worth provisions would not reasonably be expected to impair  the ability of the Group Members to meet their ongoing obligations, (j) restrictions on cash or other  deposits imposed by customers under contracts entered into in the ordinary course of business and  (k)  customary  restrictions  and  conditions  contained  in  agreements  relating  to  the  sale  of  a                                        114  509265-2041-31349836.23  





 






   Restricted Subsidiary or any assets pending such sale, provided that such restrictions or conditions  apply  only  to  the  Restricted  Subsidiary  or  assets  that  is  to  be  sold  and such  sale  is  permitted  hereunder.               7.14  Clauses Restricting Subsidiary Distributions.  Enter into or suffer to exist  or become effective any consensual encumbrance or restriction on the ability of any Restricted  Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock of  such Restricted Subsidiary held by, or pay any Indebtedness owed to, any Group Member, (b)  make loans or advances to, or other Investments in, any Group Member or (c) transfer any of its  assets to any Group Member, except for (i) any encumbrances or restrictions existing under (A)  this Agreement, the other Loan Documents and the Term Loan Documents (B) any agreement  governing  Indebtedness  incurred  pursuant  to  Section  7.2  so  long  as  such  encumbrance  or  restriction is customary in agreements governing Indebtedness of such type and is not materially  more restrictive (taken as a whole) than the Loan Documents (as conclusively determined by the  Borrower in good faith) or (C) any agreement governing Permitted Refinancing Indebtedness in  respect of the Loans, any Term Loans or any other Indebtedness incurred pursuant to Section 7.2,  in each case so long as any such agreement is not materially more restrictive (taken as a whole)  than  the  Loan  Documents,  the  Term  Loan  Documents  or  the  documents  governing  the  Indebtedness being refinanced, as applicable (as conclusively determined by the Borrower in good  faith),  (ii)  any  encumbrances  or  restrictions  with  respect  to  a  Restricted  Subsidiary  imposed  pursuant to an agreement that has been entered into in connection with the Disposition of all or  substantially all of the Capital Stock or assets of such Restricted Subsidiary, (iii) any encumbrance  or restriction applicable to a Restricted Subsidiary (and, if applicable, its Subsidiaries) under any  agreement of such Restricted Subsidiary in effect at the time such Person becomes a Restricted  Subsidiary of the Borrower, so long as such agreement was not entered into in contemplation of  such  Person  becoming  a  Restricted  Subsidiary  of  the  Borrower,  as  such  agreement  may  be  amended,  restated,  supplemented,  modified  extended  renewed or  replaced,  so  long  as  such  amendment, restatement, supplement, modification, extension, renewal or replacement does not  expand in  any material  respect the scope of any restriction  contemplated by  this  Section 7.14  contained  therein,  (iv)  customary  provisions  restricting  assignments,  subletting,  sublicensing,  pledging or other transfers contained in leases, subleases, licenses or sublicenses, so long as such  restrictions  are  limited  to  the  property  or  assets  subject  to  such  leases,  subleases,  licenses  or  sublicenses, as the case may be, (v) customary restrictions and conditions contained in agreements  relating to the sale of a Restricted Subsidiary or any assets pending such sale, provided that such  restrictions or conditions apply only to the Restricted Subsidiary or assets that is to be sold and  such sale is permitted hereunder , (vi) consensual arrangements with insurance regulators with  respect  to  the  Insurance  Subsidiary,  (vii)  (A)  restrictions  imposed  by  applicable  law  and  (B)  contractual encumbrances or restrictions in effect on the Closing Date and listed on Schedule 7.14,  (viii) customary provisions in joint venture agreements and other similar agreements entered into  in  the  ordinary  course  of  business,  (ix)  customary  provisions  restricting  assignment  of  any  agreement entered into in the ordinary course of business, (h) customary net worth provisions  contained in real property leases entered into by the Group Members, so long as the Borrower has  determined in good faith that such net worth provisions would not reasonably be expected to impair  the ability of the Group Members to meet their ongoing obligations and (i) restrictions on cash or  other  deposits  imposed  by  customers  under  contracts  entered  into  in  the  ordinary  course  of  business.                                        115  509265-2041-31349836.23  





 






            7.15  Lines of Business.  (a) Enter into any business, either directly or through  any Restricted Subsidiary, except for those businesses in which the Group Members were engaged  on the Closing Date and any similar, corollary, related, incidental or complementary business or  business activities or any reasonable extension, development or expansion thereof (as determined  by the Borrower in good faith).                (b)  In  the  case  of  the  Insurance  Subsidiary,  enter  into  any  business,  except  for  providing  insurance  services  to  the  Borrower  and  its  Restricted  Subsidiaries  and  activities  reasonably related thereto.               7.16  Use of Proceeds.  Use, and the respective directors, officers, employees and  agents of the Borrower and its Subsidiaries shall not use, the proceeds of any Revolving Loan or  Letter of Credit (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 any Anti- Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business  or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner  that would result in the violation of any Sanctions applicable to any party hereto.                           SECTION 8.  EVENTS OF DEFAULT               If any of the following events shall occur and be continuing:               (a)   the Borrower shall fail to pay any principal of any Loan or Reimbursement        Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay        any  interest  on  any  Loan  or  Reimbursement  Obligation,  or  any  other  amount  payable        hereunder or under any other Loan Document, within five Business Days after any such        interest or other amount becomes due in accordance with the terms hereof; or               (b)   any representation or warranty made or deemed made by any Loan Party        herein or in any other Loan Document or that is contained in any certificate, document or        financial or other statement furnished by it at any time under or in connection with this        Agreement or any such other Loan Document shall prove to have been inaccurate in any        material respect on or as of the date made or deemed made; or               (c)   any  Loan  Party  shall  default  in  the  observance  or  performance  of  (i)        Sections 6.2(g) or 6.2(i), and such default shall continue unremedied for a period of 10        days after written notice to the Borrower from the Administrative Agent or the Required        Lenders or (ii) any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect        to the Borrower only), Section 6.7(a) or Section 7 of this Agreement; or               (d)   any Loan Party shall default in the observance or performance of any other        agreement  contained  in  this  Agreement  or  any  other  Loan  Document  (other  than  as        provided in paragraphs (a) through (c) of this Section 8), and such default shall continue        unremedied  for  a  period  of  30  days  after  written  notice  to  the  Borrower  from  the        Administrative Agent or the Required Lenders; or               (e)   any Group Member shall (i) default in making any payment of any principal        of any Material Indebtedness (including any Guarantee Obligation) on the scheduled or                                        116  509265-2041-31349836.23 





 






         original due date with respect thereto; or (ii) default in making any payment of any interest        on any such Material  Indebtedness  beyond the period of grace, if any, provided in  the        instrument  or  agreement  under  which  such  Material  Indebtedness  was  created;  or  (iii)        default in the observance or performance of any other agreement or condition relating to        any such Material Indebtedness or contained in any instrument or agreement evidencing,        securing or relating thereto, the effect of which default is to cause (with all applicable grace        periods having expired), or to permit the holder or beneficiary of such Indebtedness (or a        trustee or agent on behalf of such holder or beneficiary) to cause (with all applicable grace        periods having expired), with the giving of notice if required, such Material Indebtedness        to  become  due  prior  to  its  stated  maturity  or  (in  the  case  of  any  such  Indebtedness        constituting a Guarantee Obligation) to become payable (provided that this clause (iii) shall        not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof        as permitted by the terms of this Agreement); or               (f)   (i)  the  Borrower  or  any  Material  Subsidiary  shall  commence  any  case,        proceeding  or  other  action  (A)  under  any  existing  or  future  law  of  any  jurisdiction,        domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors,        seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a        bankrupt  or insolvent,  or seeking reorganization, arrangement,  adjustment,  winding-up,        liquidation, dissolution, composition or other relief with respect to it or its debts, or (B)        seeking appointment of a receiver, trustee, custodian, conservator or other similar official        for it or for all or any substantial part of its assets; or (ii) there shall be commenced against        the Borrower or any Material Subsidiary any case, proceeding or other action of a nature        referred to in clause (i) above that (A) results in the entry of an order for relief or any such        adjudication or appointment or (B) remains undismissed or undischarged for a period of        60  consecutive  days;  or  (iii)  there  shall  be  commenced  against  the  Borrower  or  any        Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of        attachment, execution, distraint or similar process against all or any substantial part of its        assets  that  results  in  the  entry  of  an  order  for  any  such  relief  that  shall  not  have  been        vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry        thereof; or (iv) the Borrower or any Material Subsidiary shall take any action in furtherance        of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in        clause (i), (ii), or (iii) above; or (v) the Borrower or any Material Subsidiary shall generally        not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they        become  due;  or  (vi)  the  Borrower  or  any  Material  Subsidiary  shall  make  a  general        assignment for the benefit of its creditors; or               (g)   (i) an ERISA Event and/or a Foreign Plan Event shall have occurred; (ii) a        trustee shall be appointed by a United States district court to administer any Pension Plan;        (iii) the PBGC shall institute proceedings to terminate any Pension Plan; (iv) any Group        Member or any of their respective ERISA Affiliates shall have been notified by the sponsor        of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to        such Multiemployer Plan and such entity does not have reasonable grounds for contesting        such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and        appropriate manner; or (v) any other event or condition shall occur or exist with respect to        a Plan, a Foreign Benefit Arrangement, or a Foreign Plan; and in each case in clauses (i)                                        117  509265-2041-31349836.23  





 






         through  (v)  above,  such  event  or  condition,  together  with  all  other  such  events  or        conditions, if any, would reasonably be expected to result in a Material Adverse Effect; or               (h)   one or more judgments or decrees shall be entered against the Borrower or        any Material Subsidiary involving in the aggregate a liability (not paid or fully covered by        insurance  as  to  which  the  relevant  insurance  company  has  not  disputed  coverage)  of        $75,000,000  or  more,  and  all  such  judgments  or  decrees shall  not  have  been  vacated,        discharged, stayed or bonded pending appeal within 60 consecutive days from the entry        thereof; or               (i)   any of the Security Documents or the Intercreditor Agreement shall cease,        for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan        Party shall so assert, or any Lien created by any of the Security Documents on assets that        constitute a material portion of the Collateral shall cease to be enforceable and of the same        effect and priority purported to be created thereby (and, for the avoidance of doubt, as        required by the Intercreditor Agreement), except (i) the release thereof as provided in the        applicable  Loan  Document  or  Section  10.14  or  (ii)  as  a  result  of  the  failure  of  the        Administrative  Agent (or  its  agent  or  bailee  in  accordance  with  the  Intercreditor        Agreement) to  maintain possession  of any stock certificates, promissory  notes or other        instruments delivered to it under the Guarantee and Collateral Agreement; or               (j)   the  guarantee  contained  in Article  II  of  the  Guarantee  and  Collateral        Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or        any Subsidiary of any Loan Party shall so assert; or               (k)   the subordination provisions contained in any Subordinated Indebtedness        with an aggregate principal amount in excess of $75,000,000 shall cease, for any reason,        to be in full force and effect, or any Loan Party or any Subsidiary of any Loan Party shall        so assert; or               (l)   a Change of Control shall occur;    then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii)  of  paragraph  (f)  above  with  respect  to  the  Borrower,  automatically  the  Commitments  shall  immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing  under this Agreement and the other Loan Documents (including all amounts of L/C Obligations,  whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the  documents required thereunder) shall immediately become due and payable, and (B) if such event  is any other Event of Default, either or both of the following actions may be taken:  (i) with the  consent  of  the  Required  Lenders,  the  Administrative  Agent  may,  or  upon  the  request  of  the  Required  Lenders,  the  Administrative  Agent  shall,  by  notice  to  the  Borrower  declare  the  Commitments  to  be  terminated  forthwith,  whereupon  the  Commitments  shall  immediately  terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or  upon  the  request of  the  Required  Lenders,  the  Administrative  Agent  shall,  by  notice  to  the  Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under  this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether  or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents                                        118  509265-2041-31349836.23  





 






   required  thereunder)  to  be  due  and  payable  forthwith,  whereupon  the  same  shall  immediately  become due and payable.  With respect to all Letters of Credit with respect to which presentment  for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the  Borrower shall at such time deposit in a cash collateral account opened by the Administrative  Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of  Credit.  Amounts held in such cash collateral account shall be applied by the Administrative Agent  to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after  all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to  repay other Obligations of the Borrower hereunder and under the other Loan Documents.  After  all  such  Letters  of  Credit  shall  have  expired  or  been fully  drawn  upon,  all  Reimbursement  Obligations shall have been satisfied and all other Obligations of the Borrower hereunder and  under the other Loan Documents shall have been paid in full, the balance, if any, in such cash  collateral  account shall be returned to the Borrower (or such other Person as may be lawfully  entitled thereto).  Except as expressly provided above in this Section 8, presentment, demand,  protest and all other notices of any kind are hereby expressly waived by the Borrower.   In addition to any other rights and remedies granted to the Administrative Agent and the Lenders  in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all rights  and remedies of a secured party under the New York Uniform Commercial Code or any other  applicable  law.   Without  limiting  the  generality  of  the  foregoing,  the  Administrative  Agent,  without demand of performance or other demand, presentment, protest, advertisement or notice of  any kind (except any notice required by law referred to below) to or upon any Loan Party or any  other Person (all and each of which demands, defenses, advertisements and notices are hereby  waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the  Collateral, or any part thereof, or consent to the use by the Loan Parties of any cash collateral  arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable,  and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose  of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof  (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at  any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere,  upon such terms and conditions as it may deem advisable and at such prices as it may deem best,  for  cash  or  on  credit  or  for  future  delivery,  all  without  assumption  of  any  credit  risk.  The  Administrative Agent or any Lender shall have the right upon any such public sale or sales, and,  to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any  part of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which  right or equity is hereby waived and released.  The Borrower further agrees, at the Administrative  Agent’s request, to assemble, or cause the applicable Loan Party to assemble, the Collateral and  make  it  available  to  the  Administrative  Agent  at  places  which  the  Administrative  Agent  shall  reasonably select, whether at the Borrower’s or such Loan Party’s premises or elsewhere.  The  Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section  8, after deducting all reasonable costs and expenses of every kind incurred in connection therewith  or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the  Collateral  or  the  rights  of  the  Administrative  Agent  and  the  Lenders  hereunder,  including  reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations  of the Loan Parties under the Loan Documents, in such order as the Administrative Agent may  elect, and only after such application and after the payment by the Administrative Agent of any  other amount required by any provision of law, including Section 9-615(a)(3) of the New York                                        119  509265-2041-31349836.23  





 






   UCC, need the Administrative Agent account for the surplus, if any, to any Loan Party.  To the  extent permitted by applicable law, the Borrower on behalf of itself and the other Loan Parties,  waives  all  claims,  damages  and  demands  it  or  any  other  Loan  Party  may  acquire  against  the  Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder.   If any notice of a proposed sale or other disposition of Collateral shall be required by law, such  notice shall be deemed reasonable and proper if given at least 10 days before such sale or other  disposition.                               SECTION 9.  THE AGENTS               9.1   Appointment.  (a)  As to any matters not expressly provided for herein and  in the other Loan Documents (including enforcement or collection), the Administrative Agent shall  not be required to exercise any discretion or take any action, but shall be required to act or to  refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the  written instructions of the Required Lenders (or such other number or percentage of the Lenders  as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked  in  writing,  such  instructions  shall  be  binding  upon  each  Lender;  provided,  however,  that  the  Administrative Agent shall not be required to take any action that (i) the Administrative Agent in  good  faith  believes  exposes  it  to  liability  unless  the  Administrative  Agent  receives  an  indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing  Lenders  with  respect  to  such  action  or  (ii)  is  contrary  to  this  Agreement  or  any  other  Loan  Document or applicable law, including any action that may be in violation of the automatic stay  under any requirement of law relating to  bankruptcy, insolvency or reorganization or relief of  debtors or that may effect a forfeiture, modification or termination of property of a Lender in  violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief  of debtors; provided, further, that the Administrative Agent may seek clarification or direction  from the Required Lenders prior to the exercise of any such instructed action and may refrain from  acting until such clarification or direction has been provided. Except as expressly set forth in the  Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be  liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any  Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as  Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall  require the Administrative Agent to expend or risk its own funds or otherwise incur any financial  liability in the performance of any of its duties hereunder or in the exercise of any of its rights or  powers if it shall have reasonable grounds for believing that repayment of such funds or adequate  indemnity against such risk or liability is not reasonably assured to it.               (b)   Each  Lender  hereby  irrevocably  appoints  the  entity  named  as  Administrative Agent in the heading of this Agreement and its successors and assigns to serve as  the administrative agent under the Loan Documents and each Lender and each Issuing Lender  authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such  powers under this Agreement and the other Loan Documents as are delegated to the Administrative  Agent under such agreements and to exercise such powers as are reasonably incidental thereto.  Without  limiting  the  foregoing,  each  Lender  hereby  authorizes  the  Administrative  Agent  to  execute and deliver, and to perform its obligations under, each of the Loan Documents to which  the  Administrative  Agent  is  a  party,  and  to  exercise  all  rights,  powers  and  remedies  that the  Administrative Agent may have under such Loan Documents.                                        120  509265-2041-31349836.23  





 






               (c)   In performing its functions and duties hereunder and under the other Loan  Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing  Lenders (except in limited circumstances expressly provided for herein relating to the maintenance  of  the  Register),  and  its  duties  are  entirely  mechanical  and  administrative  in  nature.  Without  limiting the generality of the foregoing, the Administrative Agent does not assume and shall not  be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary  or trustee of or for any Lender, other than as expressly set forth herein  and in the other Loan  Documents, regardless of whether a Default or an Event of Default has occurred and is continuing  (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in  any other Loan Document with reference to the Administrative Agent is not intended to connote  any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any  applicable law, and that such term is used as a matter of market custom and is intended to create  or  reflect  only  an  administrative  relationship  between  contracting  parties); additionally,  each  Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged  breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or  the transactions contemplated hereby.               (d)   Nothing  in  this  Agreement  or  any  Loan  Document  shall  require  the  Administrative Agent to account to  any Lender for any sum or the profit element of any sum  received by the Administrative Agent for its own account.               (e)   The Administrative Agent may perform any of its duties and exercise its  rights and powers hereunder or under any other Loan Document by or through any one or more  sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub- agent may perform any of their respective duties and exercise their respective rights and powers  through their respective Related Parties. The exculpatory provisions of this Article shall apply to  any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,  and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent  shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that  a  court  of  competent  jurisdiction  determines  in  a  final  and  nonappealable  judgment  that  the  Administrative Agent acted with gross negligence or willful misconduct in the selection of such  sub-agent.               (f)   The  Arranger  shall  have  no  obligations  or  duties  whatsoever  in  such  capacity under this Agreement or any other Loan Document and shall incur no liability hereunder  or  thereunder  in  such  capacity,  but  all  such  persons  shall  have  the  benefit  of  the  indemnities  provided for hereunder.               (g)   In case of the pendency of any proceeding with respect to any Loan Party  under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or  any Reimbursement Obligation shall then be due and payable as herein expressed or by declaration  or otherwise and irrespective of whether the Administrative Agent shall have made any demand  on the Borrower) shall  be entitled and empowered (but not  obligated) by  intervention in  such  proceeding or otherwise:                                         121  509265-2041-31349836.23  





 






                     (i)   to file and prove a claim for the whole amount of the principal and              interest owing and unpaid in respect of the Loans and all other Obligations that are              owing  and  unpaid  and  to  file  such  other  documents  as  may  be  necessary  or              advisable in order to have the claims of the Lenders and the Administrative Agent              (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.3) allowed in such              judicial proceeding; and                     (ii)  to  collect  and  receive  any  monies  or  other  property  payable  or              deliverable on any such claims and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such proceeding is hereby authorized by each Lender and each other Secured Party to make  such payments to the Administrative Agent and, in the event that the Administrative Agent shall  consent to the making of such payments directly to the Lenders or the other Secured Parties, to  pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent,  under  the  Loan  Documents  (including  under  Section  9.3).  Nothing  contained  herein  shall  be  deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on  behalf of any Lender or Issuing Lender any plan of reorganization, arrangement, adjustment or  composition affecting the Obligations or the rights of any Lender or Issuing Lender or to authorize  the Administrative Agent to vote in respect of the claim of any Lender or Issuing Lender in any  such proceeding.               (h)   The provisions of this Article are solely for the benefit of the Administrative  Agent, the Lenders and the Issuing Lenders, and, except solely to the extent of the Borrower’s  rights to consent pursuant to and subject to the conditions set forth in this Article, none of the  Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third  party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto,  will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the  Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.               9.2   Administrative  Agent’s  Reliance,  Indemnification,  Etc..  (a)  Neither  the  Administrative  Agent  nor  any  of  its Related  Parties  shall  be  (i)  liable  for  any  action  taken  or  omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or  in connection with this Agreement or the other Loan Documents (x) with the consent of or at the  request of the Required Lenders (or such other number or percentage of the Lenders as shall be  necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the  circumstances  as  provided  in  the  Loan  Documents)  or  (y)  in  the  absence  of  its  own  gross  negligence or willful misconduct (such absence to be presumed unless otherwise determined by a  court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any  manner to any of the Lenders for any recitals, statements, representations or warranties made by  any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or  in any certificate, report, statement or other document referred to or provided for in, or received  by the  Administrative  Agent  under  or  in  connection  with,  this  Agreement  or  any  other  Loan  Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of  this Agreement or any other Loan Document or for any failure of any Loan Party to perform its  obligations hereunder or thereunder.                                         122  509265-2041-31349836.23  





 






               (b)   The Administrative Agent shall be deemed not to have knowledge of any  Default unless and until written notice thereof (stating that it is a “notice of default”) is given to  the Administrative Agent by the Borrower, a Lender or an Issuing Lender, and the Administrative  Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,  warranty or representation made in or in connection with any Loan Document, (ii) the contents of  any certificate, report or other document delivered thereunder or in connection therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions set  forth  in  any  Loan  Document  or  the  occurrence of  any  Default,  (iv)  the  sufficiency,  validity,  enforceability,  effectiveness  or  genuineness  of  any  Loan  Document  or  any  other  agreement,  instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere  in any Loan Document, other than to confirm receipt of items (which on their face purport to be  such items) expressly required to be delivered to the Administrative Agent or satisfaction of any  condition that expressly refers to the matters described therein being acceptable or satisfactory to  the Administrative Agent or (vi) the creation, perfection or priority of Liens on the Collateral.               (c)   Without limiting the foregoing, the Administrative Agent (i) may treat the  payee  of  any  promissory  note  as  its  holder  until  such  promissory  note  has  been  assigned  in  accordance with Section 10.6, (ii) may rely on the Register to the extent set forth in Section 10.6(b),  (iii)  may  consult  with  legal  counsel  (including  counsel  to  the  Borrower),  independent  public  accountants and other experts selected by it, and shall not be liable for any action taken or omitted  to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts,  (iv)  makes  no  warranty  or  representation  to  any  Lender  or  Issuing  Lender  and  shall not  be  responsible to any Lender or Issuing Lender for any statements, warranties or representations made  by or on behalf of any Loan Party in connection with this Agreement or any other Loan Document,  (v)  in  determining  compliance  with  any  condition  hereunder  to  the  making  of  a  Loan,  or  the  issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or  an  Issuing  Lender,  may  presume  that  such  condition  is  satisfactory  to  such  Lender  or  Issuing  Lender  unless  the  Administrative  Agent  shall  have  received  notice  to  the  contrary  from  such  Lender or Issuing Lender sufficiently in advance of the making of such Loan or the issuance of  such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in  respect  of  this  Agreement  or  any  other  Loan  Document  by  acting  upon,  any  notice,  consent,  certificate or other instrument or writing (which writing may be a fax, any electronic message,  Internet or intranet website posting or other distribution) or any statement made to it orally or by  telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the  proper party or parties (whether or not such Person in fact meets the requirements set forth in the  Loan Documents for being the maker thereof).               9.3   Posting  of  Communications.  (a)   The  Borrower  agrees  that  the  Administrative Agent may, but shall not be obligated to, make any Communications available to  the  Lenders  and  the  Issuing  Lenders  by  posting  the  Communications  on  IntraLinksTM,  DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative  Agent to be its electronic transmission system (the “Approved Electronic Platform”).               (b)   Although the Approved Electronic Platform and its primary web portal are  secured with generally-applicable security procedures and policies implemented or modified by  the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password  authorization  system)  and  the  Approved  Electronic  Platform  is  secured  through  a  per-deal                                        123  509265-2041-31349836.23  





 






   authorization method whereby each user may access the Approved Electronic Platform only on a  deal-by-deal  basis,  each  of  the  Lenders,  each  of  the  Issuing  Lenders  and  the  Borrower  acknowledges and agrees that the distribution of material through an electronic medium is not  necessarily secure, that the Administrative Agent is not responsible for approving or vetting the  representatives or contacts of any Lender that are added to the Approved Electronic Platform, and  that there may be confidentiality and other risks associated with such distribution. Each of the  Lenders,  each  of  the  Issuing  Lenders  and  the  Borrower  hereby  approves  distribution  of  the  Communications through the Approved Electronic Platform and understands and assumes the risks  of such distribution.               (c)   THE   APPROVED      ELECTRONIC     PLATFORM     AND     THE  COMMUNICATIONS  ARE  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE”.  THE  APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY  OR  COMPLETENESS  OF  THE  COMMUNICATIONS,  OR  THE  ADEQUACY  OF  THE  APPROVED ELECTRONIC PLATFORM  AND EXPRESSLY  DISCLAIM  LIABILITY FOR  ERRORS  OR  OMISSIONS  IN  THE  APPROVED  ELECTRONIC  PLATFORM  AND  THE  COMMUNICATIONS.  NO  WARRANTY  OF  ANY  KIND,  EXPRESS,  IMPLIED  OR  STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR  A  PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY  RIGHTS  OR  FREEDOM  FROM  VIRUSES  OR  OTHER  CODE  DEFECTS,  IS  MADE  BY  THE  APPLICABLE  PARTIES  IN  CONNECTION  WITH  THE  COMMUNICATIONS  OR  THE  APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE  AGENT,  ANY  ARRANGER  OR  ANY  OF  THEIR  RESPECTIVE  RELATED  PARTIES  (COLLECTIVELY,  “APPLICABLE  PARTIES”)  HAVE  ANY  LIABILITY  TO  ANY  LOAN  PARTY, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER PERSON OR ENTITY  FOR  DAMAGES  OF  ANY  KIND,  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL,  INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN  TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE  ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE  INTERNET OR THE APPROVED ELECTRONIC PLATFORM.               (d)   Each  Lender  agrees  that  notice  to  it  (as  provided  in  the  next  sentence)  specifying  that  Communications  have  been  posted  to  the  Approved  Electronic  Platform  shall  constitute  effective  delivery  of  the Communications  to  such  Lender  for  purposes  of  the  Loan  Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (which could be  in the form of electronic communication) from time to time of such Lender’s or Issuing Lender’s  (as applicable) email address to which the foregoing notice may be sent by electronic transmission  and (ii) that the foregoing notice may be sent to such email address.               (e)   Each of the Lenders and the Borrower agrees that the Administrative Agent  may,  but  (except  as  may  be  required  by  applicable  law)  shall  not  be  obligated  to,  store  the  Communications  on  the  Approved  Electronic  Platform  in  accordance  with  the  Administrative  Agent’s generally applicable document retention procedures and policies.               (f)   Nothing herein shall prejudice the right of the Administrative Agent or any  Lender to give any notice or other communication pursuant to any Loan Document in any other  manner specified in such Loan Document.                                        124  509265-2041-31349836.23  





 






               9.4   The Administrative Agent Individually.  With respect to its Commitment  and  Loans,  Letter  of  Credit  Commitments  and  Letters  of  Credit,  the  Person  serving  as  the  Administrative Agent shall have and may exercise the same rights and powers hereunder and is  subject to the same obligations and liabilities as and to the extent set forth herein for any other  Lender or Issuing Lender, as the case may be. The terms “Lenders”, “Required Lenders” and any  similar  terms  shall,  unless  the  context  clearly  otherwise  indicates,  include  the  Administrative  Agent in its individual capacity as a Lender or as one of the Required Lenders, as applicable. The  Person  serving  as  the  Administrative  Agent  and  its  Affiliates  may  accept  deposits  from,  lend  money to, own securities of, act as the financial advisor or in any other advisory capacity for and  generally engage in any kind of banking, trust or other business with, the Borrower, any Subsidiary  or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative  Agent and without any duty to account therefor to the Lenders or the Issuing Lenders.               9.5   Successor Administrative Agent.  (a)  The Administrative Agent may resign  at  any  time  by  giving  30  days’  prior  written  notice  thereof  to  the  Lenders  and  the  Borrower,  whether or not a successor Administrative Agent has been appointed. Upon any such resignation,  the  Required  Lenders  shall  have  the  right  to  appoint  a  successor  Administrative  Agent.  If  no  successor Administrative Agent shall have been so appointed by the Required Lenders, and shall  have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving  of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders,  appoint a successor Administrative Agent, which shall be a bank with an office in New York, New  York or an Affiliate of any such bank. In either case, (i) such appointment shall be subject to the  prior written approval of the Borrower (which approval may not be unreasonably withheld and  shall not be required while an Event of Default has occurred and is continuing) and (ii) in no event  shall a successor Administrative Agent be a Disqualified Lender. Upon the acceptance of any  appointment  as  Administrative  Agent  by  a  successor  Administrative  Agent,  such  successor  Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges  and  duties  of  the  retiring  Administrative  Agent.  Upon  the  acceptance  of  appointment  as  Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall  be discharged from its duties and obligations under this Agreement and the other Loan Documents.  Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the  retiring Administrative Agent shall take such action as may be reasonably necessary to assign to  the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.               (b)   Notwithstanding paragraph (a) of this Section 9.5, in the event no successor  Administrative Agent  shall have been so  appointed and shall have accepted such appointment  within  30  days  after  the  retiring  Administrative  Agent  gives  notice  of  its  intent  to  resign,  the  retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders  and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice,  (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder  and  under  the  other  Loan  Documents; provided that,  solely  for  purposes  of  maintaining  any  security interest granted to the Administrative Agent under any Security Document for the benefit  of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such  security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled  to the rights set forth in such Security Document and Loan Document, and, in the case of any  Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in  each  case  until  such  time  as  a  successor  Administrative  Agent  is  appointed  and  accepts  such                                        125  509265-2041-31349836.23  





 






   appointment in accordance with this Section 9.5 (it being understood and agreed that the retiring  Administrative Agent shall have no duty or obligation to take any further action under any Security  Document, including any action required to maintain the perfection of any such security interest),  and (ii) the Required Lenders shall succeed to and become vested with  all the rights, powers,  privileges and duties of the retiring Administrative Agent; provided that (A) all payments required  to be made hereunder or under any other Loan Document to the Administrative Agent for the  account of any Person other than the Administrative Agent shall be made directly to such Person  and (B) all notices and other communications required or contemplated to be given or made to the  Administrative Agent shall directly be given or made to each Lender. Following the effectiveness  of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article  and Section 10.3, as well as any exculpatory, reimbursement and indemnification provisions set  forth  in  any  other  Loan  Document,  shall  continue  in  effect  for  the  benefit  of  such  retiring  Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions  taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as  Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above.               9.6   Acknowledgements  of  Lenders  and  Issuing  Lenders.  (a)  Each  Lender  represents that it is engaged in making, acquiring or holding commercial loans in the ordinary  course of its business and that it has, independently and without reliance upon the Administrative  Agent, any Arranger or any other Lender, or any of the Related Parties of any of the foregoing,  and based on such documents and information as it has deemed appropriate, made its own credit  analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans  hereunder. Each Lender also acknowledges that it will, independently and without reliance upon  the Administrative Agent, any Arranger or any other Lender, or any of the Related Parties of any  of the foregoing, and based on such documents and information (which may contain material, non- public  information  within  the  meaning  of  the  United  States  securities  laws  concerning  the  Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its  own decisions in taking or not taking action under or based upon this Agreement, any other Loan  Document or any related agreement or any document furnished hereunder or thereunder.               (b)   Each  Lender,  by  delivering  its  signature  page  to  this  Agreement  on  the  Closing Date, or delivering its signature page to an Assignment and Assumption or any other Loan  Document  pursuant  to  which  it  shall  become  a  Lender  hereunder,  shall  be  deemed  to have  acknowledged receipt of, and consented to and approved, each Loan Document and each other  document required to be delivered to, or be approved by or satisfactory to, the Administrative  Agent or the Lenders on the Closing Date.               9.7   Collateral Matters.  (a)  Except with respect to the exercise of setoff rights  in accordance with Section 9.8 or with respect to a Secured Party’s right to file a proof of claim in  an insolvency proceeding, no Secured Party shall have any right individually to realize upon any  of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed  that all powers, rights and remedies under the Loan Documents may be exercised solely by the  Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof.               (b)   The Secured Parties irrevocably authorize the Administrative Agent, at its  option and in its discretion, to subordinate any Lien on any property granted to or held by the  Administrative Agent under any Loan Document to the holder of any Lien on such property that                                        126  509265-2041-31349836.23  





 






   is permitted by Section 7.3. The Administrative Agent shall not be responsible for or have a duty  to  ascertain  or  inquire  into  any  representation  or  warranty  regarding  the  existence,  value  or  collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s  Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the  Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any  failure to monitor or maintain any portion of the Collateral.               9.8   Credit  Bidding.   The  Secured  Parties  hereby  irrevocably  authorize  the  Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of  the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all  of the Obligations  pursuant  to  a deed in  lieu of foreclosure or otherwise) and in  such manner  purchase (either directly or through one or more acquisition vehicles) all or any portion of the  Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including  under  Sections  363,  1123  or  1129  of  the  Bankruptcy  Code,  or  any  similar  laws  in  any  other  jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of  collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative  Agent  (whether  by  judicial  action  or  otherwise)  in accordance  with  any  applicable  law.  In  connection with any such credit bid and purchase, the Obligations owed to the Secured Parties  shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the  Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated  claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon  the liquidation of such claims in an amount proportional to the liquidated portion of the contingent  claim amount used in allocating the contingent interests) for the asset or assets so purchased (or  for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in  connection with such purchase). In connection with any such bid, (i) the Administrative Agent  shall be authorized to form one or more acquisition vehicles and to assign any successful credit  bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the  Obligations  which  were  credit  bid  shall  be  deemed  without  any  further  action  under  this  Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the  Administrative Agent shall be authorized to adopt documents providing for the governance of the  acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect  to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests  thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide  for, control by the vote of the Required Lenders or their permitted assignees under the terms of  this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as  the case may be, irrespective of the termination of this Agreement and without giving effect to the  limitations on actions by the Required Lenders contained in Section 10.1 of this Agreement), (iv)  the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to  issue to each of the Secured Parties, ratably on account of the relevant Obligations which were  credit  bid,  interests,  whether  as  equity,  partnership  interests,  limited  partnership  interests  or  membership  interests,  in  any  such  acquisition  vehicle  and/or  debt  instruments  issued  by  such  acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any  further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are  not used to acquire Collateral for any reason (as a result of another bid being higher or better,  because  the  amount  of  Obligations  assigned  to  the  acquisition  vehicle  exceeds  the  amount  of  Obligations  credit  bid  by  the  acquisition  vehicle  or  otherwise),  such  Obligations  shall  automatically be reassigned to  the Secured Parties  pro rata with  their original interest  in  such                                        127  509265-2041-31349836.23  





 






   Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on  account of such Obligations shall automatically be cancelled, without the need for any Secured  Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion  of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles  as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such  information regarding the Secured Party (and/or any designee of the Secured Party which will  receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative  Agent may reasonably request in connection with the formation of any acquisition vehicle, the  formulation or submission of any credit bid or the consummation of the transactions contemplated  by such credit bid.               9.9   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 the Arranger and its respective Affiliates, and  not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that  at least one of the following is and will be true:                     (i)   such Lender is not using “plan assets” (within the meaning of the              Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans,              the Letters of Credit or the Commitments,                     (ii)  the transaction exemption set forth in one or more PTEs, such as              PTE 84-14 (a class exemption for certain transactions determined by independent              qualified professional asset managers), PTE 95-60 (a class exemption for certain              transactions  involving insurance  company  general  accounts),  PTE  90-1  (a  class              exemption for certain transactions involving insurance company pooled separate              accounts), PTE 91-38 (a class exemption for certain transactions involving bank              collective  investment  funds)  or  PTE  96-23 (a  class  exemption  for  certain              transactions determined by in-house asset managers), is applicable with respect to              such Lender’s entrance into, participation in, administration of and performance of              the Loans, the Letters of Credit, the Commitments and this Agreement,                     (iii) (A) such  Lender is  an investment  fund managed by  a “Qualified              Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)              such Qualified Professional Asset Manager made the investment decision on behalf              of such Lender to enter into, participate in, administer and perform the Loans, the              Letters  of  Credit,  the  Commitments  and  this  Agreement,  (C)  the  entrance  into,              participation  in,  administration of  and performance of the  Loans, the  Letters  of              Credit, the Commitments  and this  Agreement  satisfies  the requirements  of sub-             sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of              such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied              with respect to such Lender’s entrance into, participation in, administration of and              performance  of  the  Loans,  the  Letters  of  Credit,  the  Commitments  and  this              Agreement, or                                         128  509265-2041-31349836.23  





 






                     (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 the Arranger  and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the  Borrower or any other Loan Party, that none of the Administrative Agent, or the Arranger or any  of their respective Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender  (including in connection with the reservation or exercise of any rights by the Administrative Agent  under this Agreement, any Loan Document or any documents related to hereto or thereto).               (c)   The  Administrative  Agent  hereby  informs  the  Lenders  that  each  such  Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity,  in  connection with  the transactions  contemplated hereby, and that such  Person has  a financial  interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may  receive  interest  or  other  payments  with  respect  to  the  Loans,  the  Letters  of  Credit,  the  Commitments,  this  Agreement  and  any  other  Loan  Documents  (ii)  may  recognize  a  gain  if  it  extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount  being paid for an interest in the Loans, 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.  MISCELLANEOUS               10.1  Amendments  and  Waivers.   Subject  to  Section  2.16(b),  neither  this  Agreement,  any  other  Loan  Document,  nor  any  terms  hereof  or  thereof  may  be  amended,  supplemented or modified except in accordance with the provisions of this Section 10.1.  The  Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the  written consent of the Required Lenders, the Administrative Agent and each Loan Party party to  the relevant  Loan  Document  may,  from  time  to  time,  (a)  enter  into  written  amendments,  supplements or modifications hereto and to the other Loan Documents for the purpose of adding  any provisions to this Agreement or the other Loan Documents or changing in any manner the  rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms  and conditions as the Required Lenders or the Administrative Agent, as the case may be, may  specify in such instrument, any of the requirements of this Agreement or the other Loan Documents  or any Default or Event of Default and its consequences; provided, however, that no such waiver  and no such amendment, supplement or modification shall (i) forgive the principal amount or  extend the final scheduled date of maturity of any Loan, reduce the stated rate of any interest or                                        129  509265-2041-31349836.23  





 






   fee payable hereunder (except (x) in connection with the waiver of applicability of any post-default  increase in interest rates (which waiver shall be effective with the consent of the Required Lenders)  and (y) that any amendment or modification of defined terms used in the financial covenants in  this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this  clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend  the expiration date of any Lender’s Commitment, in each case without the written consent of each  Lender directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this  Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in  the definition of “Required Lenders” or “Supermajority Lenders” without the written consent of  each  Lender  or  change  any  other  provision  of  this  Agreement  or  any  other  Loan  Document  specifying the number or percentage of Lenders (or Lenders of any Facility) required to waive,  amend or otherwise modify any rights thereunder or make any determination or grant any consent  thereunder without the written consent of each Lender (or each Lender of the applicable Facility,  as applicable), (iv) consent to the assignment or transfer by the Borrower of any of its rights and  obligations under this Agreement and the other Loan Documents, release all or substantially all of  the Collateral  or release all or substantially all of the value of the guarantees  provided by the  Subsidiary Guarantors taken as a whole, in each case without the written consent of all Lenders;  (v) amend, modify or waive any provision of Section 2.17 without the written consent of each  Lender; (vi) increase the advance rates set forth in the definition of “Borrowing Base” or add new  categories of eligible assets, without the written consent of the Supermajority Lenders; (vii) modify  eligibility criteria, as such eligibility criteria are in effect on the Closing Date (including adding  new  categories  of  eligible  assets  or  eliminating  any  category  of  the  Reserves  in  effect  on  the  Closing Date; provided, however, that, for the avoidance of doubt, notwithstanding anything in  this Section 10.1 to the contrary, the Administrative Agent may, in its Permitted Discretion and  without the consent of any other Lenders, eliminate any category of Reserve that was added after  the Closing Date by the Administrative Agent) in any manner that has the effect of increasing the  amounts  available to  be borrowed hereunder without the written consent  of the Supermajority  Lenders; (viii) amend, modify or waive any provision of Section 9 or any other provision of any  Loan  Document  that  affects  the  Administrative  Agent  without  the  written  consent  of  the  Administrative Agent; (ix) [reserved]; or (x) amend, modify or waive any provision of Section 3  relating to the rights or obligations of the Issuing Lender without the written consent of the Issuing  Lender.   Any  such  waiver  and  any  such  amendment,  supplement  or  modification  shall  apply  equally  to  each  of  the  Lenders  and  shall  be  binding  upon  the  Loan  Parties,  the  Lenders,  the  Administrative Agent and all future holders of the Loans.  In the case of any waiver, the Loan  Parties, the Lenders and the Administrative Agent shall be restored to their former position and  rights hereunder and under the other Loan Documents, and any Default or Event of Default waived  shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent  or other Default or Event of Default, or impair any right consequent thereon.               Furthermore, notwithstanding the foregoing, (i) the Administrative Agent, with the  consent  of the Borrower, may amend, modify or supplement any  Loan  Document without the  consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity,  inconsistency or defect  or correct any typographical error or other manifest error in  any Loan  Document and (ii) the Loan Documents may be amended in accordance with Section 2.24.               10.2  Notices.  All notices, requests and demands to or upon the respective parties  hereto to be effective shall be in writing (including by facsimile or e-mail), and, unless otherwise                                        130  509265-2041-31349836.23  





 






   expressly provided herein, shall be deemed to have been duly given or made when delivered, or  three Business Days after being deposited in the mail, postage prepaid, or, in the case of facsimile  or e-mail notice, 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), addressed as follows in the case of the Borrower and the Administrative Agent, and as  set forth in an administrative questionnaire delivered to the Administrative Agent in the case of  the Lenders, or to such other address as may be hereafter notified by the respective parties hereto:                 Borrower:                 Rent-A-Center, Inc.                                          5501 Headquarters Drive                                          Plano, Texas 75024                                          Attention:  Maureen B. Short, Chief Financial                                          Officer Facsimile:  (972) 943-0116                                          E-mail:  Maureen.short@rentacenter.com                                                          with a copy to:           Sullivan & Cromwell LLP                                          125 Broad Street                                          New York, New York 10004                                          Attention:  Ari B. Blaut                                          Facsimile: (212) 291-9219                                          E-mail: blauta@sullcrom.com                                                          Administrative Agent:     JPMorgan Chase Bank, N.A.                                          2200 Ross Avenue, 9th Floor                                          Dallas, Texas 75201                                          Attention: Credit Risk Manager                                          Facsimile: (214)965-2594                                          E-mail:  jon.eckhouse@jpmorgan.com  and                                          charmaine.l.wallace@jpmorgan.com                                                                                                  Notices and other communications to the Lenders hereunder may be delivered or  furnished by electronic communications pursuant to procedures approved by the Administrative  Agent; provided that the foregoing shall not apply to notices delivered to any Lender pursuant to  Section 2 if such Lender has notified the Administrative Agent that it is incapable of receiving  notices  under  such  Section  by  electronic  communication.   The  Administrative  Agent  or  the  Borrower may, in its discretion, agree to accept notices and other communications to it hereunder  by electronic communications pursuant to procedures approved by it; provided that approval of  such procedures may be limited to particular notices or communications.               10.3  No Waiver; Cumulative Remedies.  No failure to exercise and no delay in  exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or  privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall  any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other  or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The  rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any  rights, remedies, powers and privileges provided by law.                                        131  509265-2041-31349836.23  





 






               10.4  Survival  of  Representations  and  Warranties.   All  representations  and  warranties  made  hereunder,  in  the  other  Loan  Documents  and  in  any  document,  certificate  or  statement  delivered  pursuant  hereto  or  in  connection  herewith  shall  survive  the  execution  and  delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.               10.5  Payment  of  Expenses  and  Taxes.   The  Borrower  agrees  (a)  to  pay  or  reimburse the Administrative Agent and the Arrangers for all of their respective reasonable and  documented out-of-pocket costs and expenses incurred in connection with the syndication of the  Commitments  and  the  development,  preparation  and  execution  of,  and  any  amendment,  supplement  or  modification  to,  this  Agreement  and  the  other  Loan  Documents  and  any  other  documents  prepared  in  connection  herewith  or  therewith,  and  the  consummation  and  administration of the transactions contemplated hereby and thereby, including the reasonable and  documented fees, disbursements and other charges of one primary counsel to the Administrative  Agent and the Arrangers and, if necessary, one local counsel in each applicable jurisdiction and  filing  and  recording  fees  and  expenses,  with  statements  with  respect  to  the  foregoing  to  be  submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the  Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as  the Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender, the Issuing  Lender and the Administrative Agent for all its reasonable and documented costs and out-of-pocket  expenses incurred in connection with the enforcement or preservation of any rights under this  Agreement, the other Loan Documents and any such other documents, including the reasonable  and documented fees, disbursements and other charges of counsel to the Administrative Agent and  the Lenders and including the reasonable and documented costs and expenses incurred during any  workout,  restructuring  or  negotiations  (it  being  understood  that  expenses  reimbursed  by  the  Borrower under this Section 10.5 shall include costs and expenses incurred in connection with (1)  appraisals,  environmental  reviews  and  insurance  reviews,  (2)  field  examinations  and  the  preparation of Reports based on the fees charged by a third party retained by the Administrative  Agent or the internally allocated fees for each Person employed by the Administrative Agent with  respect to each field examination and (3) forwarding loan proceeds, collecting checks and other  items of payment and establishing and maintaining the accounts and lock boxes, and costs and  expenses of preserving and protecting the Collateral), (c) to pay, indemnify, and hold each Lender,  the Issuing Lender and the Administrative Agent harmless from, any and all recording and filing  fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise  and other Taxes, if any, that may be payable or determined to be payable in connection with the  execution  and  delivery  of,  or  consummation  or  administration  of  any  of  the  transactions  contemplated by, or any amendment, supplement or modification of, or any waiver or consent  under or in respect of, this Agreement, the other Loan Documents and any such other documents,  and (d) to pay, indemnify, and hold each Lender, the Issuing Lender, the Arrangers and each Agent,  their respective affiliates, and their respective officers, directors, employees, agents, advisors and  controlling persons (each, an “Indemnitee”) harmless from and against any and all other liabilities,  obligations,  losses,  claims,  damages,  penalties,  actions,  judgments,  suits,  costs  or  expenses  (including the reasonable and documented fees, disbursements and other charges of counsel) of  any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance  and administration of this Agreement, the other Loan Documents and any such other documents,  including any claim, litigation, investigation or proceeding regardless of whether any Indemnitee  is a party thereto and whether or not the same are brought by the Borrower, its equity holders,  affiliates or creditors or any other Person, including any of the foregoing relating to the use of                                        132  509265-2041-31349836.23  





 






   proceeds of the Loans or Letters of Credit (including any refusal by the Issuing Lender 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  the  violation  of,  noncompliance with or liability under, any Environmental Law applicable to any Group Member  or its operations or properties, and the reasonable and documented fees, disbursements and other  charges of legal  counsel (limited to reasonable and documented fees, disbursements and other  charges of one primary counsel for all Indemnitees, taken as a whole, and, if necessary, one firm  of local counsel in each appropriate jurisdiction (which may include a single special counsel acting  in multiple jurisdictions) for all Indemnitees, taken as a whole, and one firm of special regulatory  counsel for all Indemnitees, taken as a whole (and, in the case of an actual or potential conflict of  interest, where an Indemnitee affected by such conflict informs the Borrower of such conflict and  thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if  necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single  special  counsel  acting  in  multiple  jurisdictions)  for  such  affected  Indemnitee  and  one  firm  of  special regulatory counsel for such affected Indemnitee)) in connection with claims, actions or  proceedings  by  any  Indemnitee  against  any  Loan  Party  under  any  Loan  Document  (all  the  foregoing  in  this  clause  (d),  collectively,  the  “Indemnified  Liabilities”),  provided,  that  the  Borrower  shall  have  no  obligation  hereunder  to  any  Indemnitee  with  respect  to  Indemnified  Liabilities  to  the  extent  such  Indemnified  Liabilities  are  found  by  a  final  and  nonappealable  decision  of  a  court  of  competent  jurisdiction  to  have  resulted  from  (x)  the  bad  faith,  gross  negligence or willful misconduct of such Indemnitee (or any of its Affiliates, officers, directors,  employees, agents, advisors or controlling persons), (y) a material breach by such Indemnitee of  its obligations under the Loan Documents or (z) disputes or proceedings that are brought by an  Indemnitee against any other Indemnitee (other than any claims against any Arranger or Agent in  its capacity or in fulfilling its roles as an Arranger or Agent hereunder or any similar role with  respect to any Facility) to the extent such disputes do not arise from any act or omission of any  Loan Party or any of its Affiliates, and provided, further, that this Section 10.5(d) shall not apply  with respect to Taxes other than any Taxes that represent losses or damages arising from any non- Tax claim. Except as provided in this Section 10.5, and to the extent permitted by applicable law,  the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and  agrees to  cause its Subsidiaries to  waive, all rights for contribution with  respect to all claims,  demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind  or nature, arising under any Environmental Laws, that any of them has by statute or otherwise  against any Indemnitee. No Indemnitee shall be liable for any damages arising from the use by  others of information or other materials obtained through electronic, telecommunications or other  information transmission systems, except to the extent any such damages are found by a final and  nonappealable decision of a court of competent jurisdiction to have resulted from (x) the bad faith,  gross  negligence  or  willful  misconduct  of  such  Indemnitee  (or  any  of  its  Affiliates,  officers,  directors, employees, agents, advisors or controlling persons) or (y) a material breach by such  Indemnitee of its obligations under the Loan Documents.  No Indemnitee shall be liable for any  indirect, special, exemplary, punitive or consequential damages in connection with this Agreement  or the other Loan Documents or the transactions contemplated hereby or thereby.  All amounts  due under this Section 10.5 shall be payable not later than 15 days after written demand therefor.   The  agreements  in  this  Section  10.5  shall  survive  the  termination  of  this  Agreement  and  the  repayment of the Loans and all other amounts payable hereunder.                                         133  509265-2041-31349836.23  





 






               10.6  Successors  and  Assigns;  Participations  and  Assignments. (a)   The  provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto  and their respective successors and assigns permitted hereby (including any affiliate of the Issuing  Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise  transfer any of its rights or obligations hereunder without the prior written consent of each Lender  (and any attempted assignment or transfer by the Borrower without such consent shall be null and  void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except  in accordance with this Section.               (b)   (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender  may assign to one or more Eligible Assignees (each, an “Assignee”), all or a portion of its rights  and obligations under this Agreement (including all or a portion of its Commitments and the Loans  at  the  time  owing  to  it)  with  the  prior  written  consent  (such  consent  not  to  be  unreasonably  withheld, delayed or conditioned) of:                           (A)   the Borrower, provided that no consent of the Borrower shall                                be required for an assignment to a Lender, an affiliate of a                                Lender, an Approved Fund (as defined below) or, if an Event                                of Default has occurred and is continuing, any other Person;                                and provided, further, that the Borrower shall be deemed to                                have consented to any such assignment unless the Borrower                                shall object thereto by written notice to the Administrative                                Agent within 10 Business Days after having received notice                                thereof;                            (B)   the Administrative Agent, provided that no consent of the                                Administrative Agent shall be required for an assignment of                                all or any portion of its Commitment or Loan to a Lender, an                                Affiliate of a Lender or an Approved Fund; and                           (C)   the Issuing Lender.                     (ii)  Assignments shall be subject to the following additional conditions:                            (A)   except in the case of an assignment to a Lender, an affiliate                                of a Lender or an Approved Fund or an assignment of the                                entire  remaining  amount  of  the  assigning  Lender’s                                Commitments or Loans, the amount of the Commitments or                                Loans  of  the  assigning  Lender subject  to  each  such                                assignment (determined as of the date the Assignment and                                Assumption with respect to such assignment is delivered to                                the Administrative Agent) shall not be less than $5,000,000)                                unless each of the Borrower and the Administrative Agent                                otherwise consent, provided that (1) no such consent of the                                Borrower  shall  be  required  if  an  Event  of  Default  has                                occurred  and is  continuing  and (2) such amounts  shall be                                         134  509265-2041-31349836.23  





 






                                 aggregated  in  respect  of  each  Lender  and  its  affiliates  or                                Approved Funds, if any;                            (B)   (1) the parties to each assignment shall execute and deliver                                to  the  Administrative  Agent  an  Assignment  and                                Assumption, together with a processing and recordation fee                                of $3,500 and (2) the assigning Lender shall have paid in full                                any amounts owing by it to the Administrative Agent; and                            (C)   the Assignee, if it shall not be a Lender, shall deliver to the                                Administrative  Agent  an  administrative  questionnaire  in                                which the Assignee designates one or more credit contacts                                to whom all syndicate-level information (which may contain                                material non-public information about the Borrower and its                                Affiliates  and  their  Related  Parties  or  their  respective                                securities) will be made available and who may receive such                                information in accordance with the Assignee’s compliance                                procedures and applicable laws, including Federal and state                                securities laws.               For the purposes of this Section 10.6, “Approved Fund” means any Person (other  than a natural person) that is engaged in making, purchasing, holding or investing in bank loans  and similar extensions of credit in the ordinary course of its business and that is administered or  managed by (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an entity that  administers or manages a Lender.                     (iii) Subject to acceptance and recording thereof pursuant to paragraph              (b)(iv) below, from and after the effective date specified in each Assignment and              Assumption the Assignee thereunder shall be a party hereto and, to the extent of              the  interest  assigned  by  such  Assignment  and  Assumption, have  the  rights  and              obligations of a Lender under this Agreement, and the assigning Lender thereunder              shall, to the extent of the interest assigned by such Assignment and Assumption, be              released  from  its  obligations  under  this  Agreement  (and,  in  the  case  of  an              Assignment  and  Assumption  covering  all  of  the  assigning  Lender’s  rights  and              obligations under this Agreement, such Lender shall cease to be a party hereto but              shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.5).               Any  assignment  or  transfer  by  a  Lender  of  rights  or  obligations  under  this              Agreement that does not comply with this Section 10.6 shall be treated for purposes              of this Agreement as a sale by such Lender of a participation in such rights and              obligations in accordance with paragraph (c) of this Section 10.6.                     (iv)  The Administrative Agent, acting for this purpose as an agent of the              Borrower,  shall  maintain  at  one  of  its  offices  a  copy  of  each  Assignment  and              Assumption  delivered  to  it  and  a  register  for  the  recordation  of the  names  and              addresses  of  the  Lenders,  and  the  Commitments  of,  and  principal  amount  (and              stated interest) of the Loans and L/C Obligations owing, to each Lender pursuant              to the terms hereof from time to time (the “Register”).  The entries in the Register                                        135  509265-2041-31349836.23  





 






               shall be conclusive absent manifest error, and the Borrower, the Administrative              Agent, the Issuing Lender and the Lenders shall treat each Person whose name is              recorded in the Register pursuant to the terms hereof as a Lender hereunder for all              purposes of this Agreement, notwithstanding notice to the contrary.                     (v)   Upon its receipt of a duly completed Assignment and Assumption              executed  by  an  assigning  Lender  and  an  Assignee,  the  Assignee’s  completed              administrative  questionnaire  (unless  the  Assignee  shall  already  be  a  Lender              hereunder), the processing and recordation fee referred to in paragraph (b) of this              Section 10.6 and any written consent to such assignment required by paragraph (b)              of this Section 10.6, the Administrative Agent shall accept such Assignment and              Assumption  and  record  the  information  contained  therein  in  the  Register.   No              assignment shall be effective for purposes of this Agreement unless it has been              recorded in the Register as provided in this paragraph.                     (vi)  Each assignee, by its execution and delivery of an Assignment and              Assumption, shall be deemed to have represented to the assigning Lender and the              Administrative Agent that such assignee is an Eligible Assignee. In no event shall              the Administrative Agent be obligated to ascertain, monitor or inquire as to whether              any prospective assignee is an Eligible Assignee or have any liability with respect              to any assignment made to a Disqualified Lender or any other Person that is not an              Eligible Assignee.               (c)   Any  Lender  may,  without  the  consent  of  or  notice  to the  Borrower,  the  Administrative Agent or the Issuing Lender, sell participations to one or more Eligible Assignees  (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement  (including all or a portion of its Commitments and the Loans owing to it); provided that (i) such  Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain  solely responsible to the other parties hereto for the performance of such obligations, and (iii) the  Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to  deal solely and directly with such Lender in connection with such Lender’s rights and obligations  under this Agreement.  Any agreement 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 may provide that such Lender will not, without the consent of the Participant, agree to  any  amendment,  modification  or  waiver  that  (i)  requires  the  consent  of  each  Lender  directly  affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (ii) directly  affects such Participant.  Each Lender that sells a participation agrees, at the Borrower’s request  and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions  of Section 2.22 with respect to any Participant.  The Borrower agrees that each Participant shall  be  entitled  to  the  benefits  of  Sections  2.18,  2.19  and  2.20  (subject  to  the  requirements  and  limitations therein, including the requirements under Section 2.19(f) (it being understood that the  documentation required under Section 2.19(f) shall be delivered to the participating Lender)) to  the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  paragraph (b) of this Section 10.6; provided that such Participant (i) agrees to be subject to the  provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section  10.6 and (ii) shall not be entitled to receive any greater payment under Sections 2.18 or 2.19, with                                        136  509265-2041-31349836.23  





 






   respect  to  any participation,  than its  participating  Lender would have been entitled to  receive,  except to the extent that such entitlement to receive a greater payment results from an adoption of  or  any  change  in  any  Requirement  of  Law  or  in  the  interpretation  or  application  thereof  or  compliance by any Lender with any request or directive (whether or not having the force of law)  from any central bank or other Governmental Authority made subsequent to the Closing Date that  occurs after the Participant acquired the applicable participation.  To the extent permitted by law,  each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender,  provided such Participant shall be subject to Section 10.7(a) as though it were a Lender.  Each  Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the  Borrower, maintain a register on which it enters the name and address of each Participant and the  principal  amounts  (and  stated  interest)  of  each  Participant’s  interest  in  the  Loans  or  other  obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall  have  any  obligation  to  disclose  all  or  any  portion  of  the  Participant  Register  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, the Administrative Agent (in its capacity as  Administrative Agent) shall have no responsibility for maintaining a Participant Register.               (d)   Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including any  pledge or assignment to secure obligations to a Federal Reserve Bank or any other central banking  authority, and this Section 10.6 shall not apply to any such pledge or assignment of a security  interest; provided that no such pledge or assignment of a security interest shall release a Lender  from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender  as a party hereto.  The Borrower, upon receipt of written notice from the relevant Lender, agrees  to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in this  paragraph (d).               (e)   [Reserved].               (f)   The list of Disqualified Lenders (i) shall be made available to the Lenders  by posting on IntraLinks/IntraAgency or another relevant Internet or intranet website, if any, to  which each Lender and the Administrative Agent have access (whether a commercial, third-party  website  or  whether  sponsored  by  the  Administrative  Agent)  and  (ii)  shall  be  provided  to  any  Lender upon request by such Lender to the Administrative Agent.  A Lender may provide the list  of  Disqualified  Lenders  to  any  potential  assignee  or  participant  on  a  confidential  basis  in  accordance  with  Section  10.15  hereof  for  the  purpose  of  verifying  whether  such  Person  is  a  Disqualified Lender.               (g)   (i) If any assignment or participation is made to any Disqualified Lender in  violation of this Section 10.6, the Borrower may, at its sole expense and effort, upon notice to the  applicable Disqualified Lender and the Administrative Agent, (A) purchase or prepay such Loan                                        137  509265-2041-31349836.23  





 






   by paying the lowest of (x) the principal amount thereof and (y) the amount that such Disqualified  Lender paid to acquire such Loans, in each case plus accrued interest, accrued fees and all other  amounts  (other  than  principal  amounts)  payable  to  it  hereunder  and/or  (B)  require  such  Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions  contained in this Section 10.6), all of its interest, rights and obligations under this Agreement to  one or more Eligible Assignees at the lowest of (x) the principal amount thereof and (y) the amount  that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case  plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to  it hereunder.                     (ii)  Notwithstanding  anything  to  the  contrary  contained  in  this        Agreement, Disqualified Lenders (A) will not (x) have the right to receive information,        reports or other materials provided to Lenders by the Borrower, the Administrative Agent        or any other Lender, (y) attend or participate in meetings attended by the Lenders and the        Administrative  Agent,  or  (z)  access  any  electronic  site  established  for  the  Lenders  or        confidential communications from counsel to or financial advisors of the Administrative        Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver        or  modification  of,  or  any  action  under,  and  for  the  purpose  of  any  direction  to  the        Administrative Agent or any Lender to undertake any action (or refrain from taking any        action) under this Agreement or any other Loan Document, each Disqualified Lender will        be  deemed  to  have  consented  in  the  same  proportion  as  the  Lenders  that  are  not        Disqualified  Lender  consented  to  such  matter,  and  (y)  for  purposes  of  voting  on  any        Bankruptcy Plan, each Disqualified Lender party hereto hereby agrees (1) not to vote on        such Bankruptcy Plan, (2) if such Disqualified Lender does vote on such Bankruptcy Plan        notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to        be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy        Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not        be  counted  in  determining  whether  the  applicable  class  has  accepted  or  rejected  such        Bankruptcy  Plan  in  accordance  with  Section  1126(c)  of  the  Bankruptcy  Code  (or  any        similar provision in any other Debtor Relief Laws) and (3) not to contest any request by        any  party  for  a  determination  by  the  Bankruptcy  Court  (or  other  applicable  court  of        competent jurisdiction) effectuating the foregoing clause (2).               10.7  Adjustments;  Set-off.  (a)  Except  to  the  extent  that  this  Agreement  or  a  court order expressly provides for payments to be allocated to a particular Lender, if any Lender  (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to it  (other  than  in  connection  with  an  assignment  made  pursuant  to  Section  10.6),  or  receive  any  collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or  proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than any  such payment to or collateral received by any other Lender, if any, in respect of the Obligations  owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders  a participating interest in such portion of the Obligations owing to each such other Lender, or shall  provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause  such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each  of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is  thereafter  recovered  from  such  Benefitted  Lender,  such  purchase  shall  be  rescinded,  and  the  purchase price and benefits returned, to the extent of such recovery, but without interest; provided                                        138  509265-2041-31349836.23  





 






   further, that to the extent prohibited by applicable law as described in the definition of “Excluded  Swap Obligation,” no amounts received from, or set-off with respect to, any Subsidiary Guarantor  shall be applied to any Excluded Swap Obligations of such Subsidiary Guarantor.               (b)   In addition to any rights and remedies of the Lenders provided by law, each  Lender shall have the right, without notice to the Borrower, any such notice being expressly waived  by the Borrower to the extent permitted by applicable law, upon any Obligations becoming due  and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to  apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or  special, time or demand, provisional or final), in any currency, and any other credits, indebtedness  or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured  or unmatured, at  any time held  or owing by such  Lender, any affiliate  thereof or any of their  respective branches or agencies to or for the credit or the account of the Borrower; provided that  if any Defaulting Lender shall exercise any such right of setoff (i) all amounts so set-off shall be  paid over immediately to the Administrative Agent for further application in accordance with the  provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting  Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent,  the Issuing Lender and the Lenders and (ii) the Defaulting Lender shall provide promptly to the  Administrative Agent a statement describing in reasonable detail the obligations owing to such  Defaulting Lender as to which it exercised such right of set-off.  Each Lender agrees promptly to  notify the Borrower and the Administrative Agent after any such application made by such Lender,  provided that the failure to give such notice shall not affect the validity of such application.               10.8  Counterparts.   This  Agreement  may  be  executed  by  one  or  more  of  the  parties to this Agreement on any number of separate counterparts, and all of said counterparts  taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed  signature page of this Agreement by e-mail or facsimile transmission shall be effective as delivery  of a manually executed counterpart hereof.  A set of the copies of this Agreement signed by all the  parties shall be lodged with the Borrower and the Administrative Agent.               10.9  Severability.   Any  provision  of  this  Agreement  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 provisions hereof, and any such  prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such  provision in any other jurisdiction.               10.10 Integration.  This Agreement and the other Loan Documents represent the  entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the  subject  matter  hereof  and  thereof,  and  there  are  no  promises,  undertakings,  representations  or  warranties by the Administrative Agent or any Lender relative to the subject matter hereof not  expressly set forth or referred to herein or in the other Loan Documents.               10.11 GOVERNING  LAW.   THIS  AGREEMENT  AND  THE  RIGHTS  AND  OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE STATE OF NEW YORK.                                         139  509265-2041-31349836.23  





 






               10.12 Submission To Jurisdiction;  Waivers.  Each of the parties  hereto  hereby  irrevocably and unconditionally:               (a)   submits for itself and its property in any legal action or proceeding relating        to this Agreement and the other Loan Documents to which it is a party, or for recognition        and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the        United States District Court for the Southern District of New York sitting in the Borough        of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the        State of New York sitting in the  Borough of Manhattan), and any appellate court from any        thereof; provided,  that  nothing  contained  herein  or  in  any  other  Loan  Document  will        prevent any Lender or the Administrative Agent from bringing any action to enforce any        award  or judgment  or  exercise  any  right  under  the  Security  Documents  or  against  any        Collateral or any other property of any Loan Party in any other forum in which jurisdiction        can be established;               (b)   consents that any such action or proceeding may be brought in such courts        and waives any objection that it may now or hereafter have to the venue of any such action        or  proceeding  in  any  such  court  or  that  such  action  or  proceeding  was  brought  in  an        inconvenient court and agrees not to plead or claim the same;               (c)   agrees  that service  of  process  in  any  such  action  or  proceeding  may  be        effected by mailing a  copy thereof by  registered or certified mail  (or  any  substantially        similar form of mail), postage prepaid, in the manner set forth in Section 10.2;               (d)   agrees that nothing herein shall affect the right to effect service of process        in any other manner permitted by law; and               (e)   waives, to the maximum extent not prohibited by law, any right it may have        to claim or recover in any legal action or proceeding referred to in this Section any indirect,        special, exemplary, punitive or consequential damages.               10.13 Acknowledgements.  The Borrower hereby acknowledges and agrees that  (a) no fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties  is intended to be or has been created in respect of any of the transactions contemplated by this  Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised  or are advising the Loan Parties on other matters, and the relationship between the Credit Parties,  on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is  solely that of creditor and debtor, (b) the Credit Parties, on the one hand, and the Loan Parties, on  the other hand, have an arm’s length business relationship that does not directly or indirectly give  rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their affiliates on  the part of the Credit Parties, (c) the Loan Parties are capable of evaluating and understanding, and  the  Loan  Parties  understand  and  accept,  the  terms,  risks  and  conditions  of  the  transactions  contemplated by this Agreement and the other Loan Documents, (d) the Loan Parties have been  advised  that  the  Credit  Parties  are  engaged  in  a  broad  range  of  transactions  that  may  involve  interests that differ from the Loan Parties’ interests and that the Credit Parties have no obligation  to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties have consulted  their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed                                        140  509265-2041-31349836.23  





 






   appropriate  in  the  negotiation,  execution  and  delivery  of  this  Agreement  and  the  other  Loan  Documents, (f) each Credit Party has been, is, and will be acting solely as a principal and, except  as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and  will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their affiliates or  any other Person, (g) none of the Credit Parties has any obligation to the Loan Parties or their  affiliates  with  respect  to  the  transactions  contemplated  by  this  Agreement  or  the  other  Loan  Documents except those obligations expressly set forth herein or therein or in any other express  writing executed and delivered by such Credit Party and the Loan Parties or any such affiliate and  (h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue  of the transactions contemplated hereby among the Credit Parties or among the Loan Parties and  the Credit Parties.               10.14 Releases  of  Guarantees  and  Liens.  (a)  Upon  any  sale,  transfer  or  other  Disposition by any Loan Party (other than any such sale, transfer or other Disposition to another  Loan  Party)  of  any  Collateral  in  a  transaction  permitted  by  this  Agreement,  or  upon  the  effectiveness of any written consent to the release of the security interest in any Collateral created  under any Security Document pursuant to Section 10.1, the security interests in such Collateral  created  by  the  Security  Documents  shall  be  automatically  released.   In  connection  with  any  termination  or  release  pursuant  to  this  clause  (a),  the  Administrative  Agent  shall  execute  and  deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall  reasonably request to evidence such release.               (b)   At such time as the Loans, the Reimbursement Obligations and the other  obligations under the Loan Documents (other than indemnification or reimbursement obligations  under Sections 2.18, 2.19(a), 2.19(d) or 2.20 for which the Borrower has not been notified and  contingent  indemnification  obligations,  Banking  Services  Obligations  and  Secured  Swap  Obligations) shall have been paid in full and the Commitments have been terminated and no Letters  of  Credit  shall  be  outstanding  (other  than  Letters  of  Credit  cash  collateralized  or  otherwise  backstopped  in  a  manner  satisfactory  to  the  applicable  Issuing  Lender  and  the  Administrative  Agent), the Collateral shall be released from the Liens created by the Security Documents, and the  Security  Documents  and  all  obligations  (other  than  those  expressly  stated  to  survive  such  termination) of the Administrative Agent and each Loan Party under the Security Documents shall  terminate, all without delivery of any instrument or performance of any act by any Person. In  connection with any termination or release pursuant to this clause (b), the Administrative Agent  shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such  Loan Party shall reasonably request to evidence such termination or release.               (c)   Notwithstanding anything to the contrary contained herein or in any other  Loan  Document,  the  Administrative  Agent  is  hereby  irrevocably  authorized by  each  Lender  (without requirement of notice to or consent of any Lender except as expressly required by Section  10.1) to take any action requested by the Borrower having the effect of releasing any Collateral or  guarantee obligations (i) to the extent necessary to permit consummation of any transaction not  prohibited by any Loan Document or that has been consented to in accordance with Section 10.1  or (ii) under the circumstances described in paragraphs (a) or (b) above.               10.15 Confidentiality.  Each of the Administrative Agent and each Lender agrees  to  keep  confidential  all  non-public  information  provided  to  it  by  any  Loan  Party,  the                                        141  509265-2041-31349836.23  





 






   Administrative  Agent  or  any  Lender  pursuant  to  or  in  connection  with  this  Agreement  that  is  designated by the provider thereof as confidential; provided that nothing herein shall prevent the  Administrative  Agent  or  any  Lender  from  disclosing  any  such  information  (a)  to  the  Administrative Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to  comply with the provisions of this Section 10.15, to any actual or prospective Transferee or any  direct  or  indirect  counterparty  to  any  Swap  Agreement  (or  any  professional  advisor  to  such  counterparty), (c) to its employees, directors, agents, attorneys, accountants and other professional  advisors or those of any of its affiliates, (d) upon the request or demand of any Governmental  Authority, (e) in response to any order of any court or other Governmental Authority or as may  otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in  connection with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to  the National Association of Insurance Commissioners or any similar organization or any nationally  recognized rating agency that requires access to information about a Lender’s investment portfolio  in connection with ratings issued with respect to such Lender, (i) in connection with the exercise  of  any  remedy  hereunder  or  under  any  other  Loan  Document,  (j)  to data  service  providers  (including league table providers) that serve the lending industry to the extent such information is  of the type customarily provided to such providers or (k) if agreed by the Borrower in its sole  discretion, to any other Person.               Each  Lender  acknowledges  that  information  furnished  to  it  pursuant  to  this  Agreement or the other Loan Documents may include material non-public information concerning  the Borrower and its Affiliates and their Related Parties or their respective securities, and confirms  that it has developed compliance procedures regarding the use of material non-public information  and that it will handle such material non-public information in accordance with those procedures  and applicable law, including Federal and state securities laws.               All information, including requests for waivers and amendments, furnished by the  Borrower  or  the  Administrative  Agent  pursuant  to,  or  in  the  course  of  administering,  this  Agreement or the other Loan Documents will be syndicate-level information, which may contain  material non-public information about the Borrower and its Affiliates and their Related Parties or  their  respective  securities.   Accordingly,  each  Lender  represents  to  the  Borrower  and  the  Administrative Agent that it has identified in its administrative questionnaire a credit contact who  may receive information that may contain material non-public information in accordance with its  compliance procedures and applicable law, including Federal and state securities laws.               The Borrower represents and warrants that it and its Subsidiaries either (i) have no  registered or publicly traded securities outstanding, or (ii) files its financial statements with the  SEC and/or makes its financial statements available to potential holders of its 144A securities, and,  accordingly, the Borrower hereby (i) authorizes the Administrative Agent to make the financial  statements to be provided under Section 6.1(a) and (b), along with the Loan Documents, available  to Public-Siders and (ii) agrees that at the time such financial statements are provided hereunder,  they shall already have been made available to holders of its securities.  The Borrower will not  request  that  any  other  material  be  posted  to  Public-Siders  without  expressly  representing  and  warranting to the Administrative Agent in writing that such materials do not constitute material  non-public information within the meaning of the federal securities laws or that the Borrower and  its Subsidiaries have no outstanding publicly traded securities, including 144A securities. For the                                        142  509265-2041-31349836.23  





 






   avoidance of doubt, the Projections and monthly financial statements provided pursuant to Section  6.1(c) shall not be posted to Public-Siders.                The Borrower hereby acknowledges that (a) the Administrative Agent will make  available to the Lenders materials and/or information provided by or on behalf of the Loan Parties  hereunder  (collectively,  the  “Borrower  Materials”)  by  posting  the  Borrower  Materials  on  IntraLinks/IntraAgency or another similar electronic system (the “Platform”) and (b) certain of the  Lenders may be Public-Siders.  If any Borrower Materials are designated by the Loan Parties as  “PRIVATE”, such Borrower Materials will not be made available to that portion of the Platform  designated “Public Investor,” which is intended to contain only information that is either publicly  available or not material information (though it may be sensitive and proprietary) with respect to  Borrower, its Subsidiaries or their securities for purposes of federal and state securities laws. The  Administrative  Agent  shall  be  entitled  to  treat  any  Borrower  Materials  that  are  not  marked  “PRIVATE” or “CONFIDENTIAL” as not containing any material non-public information with  respect  to  the  Borrower,  its  Subsidiaries  or  their  securities  for  purposes  of  federal  and  state  securities laws.               10.16 WAIVERS  OF  JURY  TRIAL.   THE  BORROWER,  THE  ADMINISTRATIVE  AGENT  AND  THE  LENDERS  HEREBY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVE  TRIAL  BY  JURY  IN  ANY  LEGAL  ACTION  OR  PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  AND FOR ANY COUNTERCLAIM THEREIN.               10.17 USA Patriot Act.  Each Lender hereby notifies the Borrower that pursuant  to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October  26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies  the  Borrower,  which  information  includes  the  name  and  address  of  the  Borrower  and  other  information that will allow such Lender to identify the Borrower in accordance with the Patriot  Act.               10.18 Intercreditor Agreement.  Each Lender hereby authorizes and directs the  Administrative  Agent  (a)  to  enter  into  the  Intercreditor  Agreement  on  its  behalf,  perform  the  Intercreditor  Agreement  on  its  behalf  and  take  any  actions  thereunder  as  determined  by  the  Administrative Agent to be necessary or advisable to protect the interest of the Lenders, and each  Lender agrees to be bound by the terms of the Intercreditor Agreement and (b) to enter into any  other intercreditor agreement reasonably satisfactory to the Administrative Agent on its behalf,  perform such intercreditor agreement on its behalf and take any actions thereunder as determined  by the Administrative Agent to be necessary or advisable to protect the interests of the Lenders,  and each Lender agrees to be bound by the terms of such intercreditor agreement. Each Lender  acknowledges that the Intercreditor Agreement governs, among other things, Lien priorities and  rights  of  the  Lenders  and  the  Term  Loan  Secured  Parties  (as  defined  in  the  Intercreditor  Agreement) with respect to the Collateral, including the Term Loan Priority Collateral.               10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.   Notwithstanding  anything  to  the  contrary  in  any  Loan  Document  or  in  any  other  agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any EEA Financial Institution arising under any Loan Document may be subject to the                                        143  509265-2041-31349836.23  





 






   Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to,  and acknowledges and agrees to be bound by:               (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA        Resolution Authority to any such liabilities arising hereunder which may be payable to it        by any party hereto that is an EEA Financial Institution; and               (b)   the  effects  of  any  Bail-In  Action  on  any  such  liability,  including,  if        applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a conversion of all, or a portion of, such liability into shares or other              instruments of ownership in such EEA Financial Institution, its parent entity, or a              bridge institution that may be issued to it or otherwise conferred on it, and that such              shares or other instruments of ownership will be accepted by it in lieu of any rights              with  respect  to  any  such  liability  under  this  Agreement  or  any  other  Loan              Document; or                     (iii) the variation of the terms of such liability in connection with the              exercise  of  the  Write-Down  and  Conversion  Powers  of  any  EEA  Resolution              Authority.                  10.20     Acknowledgement Regarding Any Supported QFCs.  To the extent  that  the  Loan  Documents  provide  support,  through  a  guarantee  or  otherwise,  for  hedging  agreements  or  any  other  agreement  or  instrument  that  is  a  QFC  (such  support  “QFC  Credit  Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows  with  respect  to  the  resolution  power  of  the  Federal  Deposit  Insurance  Corporation  under  the  Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer  Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution  Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below  applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated  to be governed by the laws of the State of New York and/or of the United States or any other state  of the United States):               In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  in or under such Supported QFC and such QFC Credit Support, and any rights in property securing  such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to  the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the  Supported QFC and such QFC Credit Support (and any such interest,  obligation and rights  in  property) were governed by the laws of the United States or a state of the United States. In the  event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding  under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights                                        144  509265-2041-31349836.23  





 






   could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan  Documents were governed by the laws of the United States or a state of the United States. Without  limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with  respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect  to a Supported QFC or any QFC Credit Support.            [Remainder of this page intentionally left blank.  Signature pages follow.]                                        145  509265-2041-31349836.23