hmi8k08292019ex101






                                               PUBLISHED DEAL CUSIP #427430AL7                       FIFTH AMENDED AND RESTATED CREDIT AGREEMENT                                     dated as of                                   August 28, 2019                                       among                                 HERMAN MILLER, INC.,                        THE SUBSIDIARY BORROWERS PARTY HERETO,                              THE LENDERS PARTY HERETO,                        WELLS FARGO BANK, NATIONAL ASSOCIATION,                               as Administrative Agent                              JPMORGAN CHASE BANK, N.A.,                                as Syndication Agent,               WELLS FARGO SECURITIES, LLC, and JPMORGAN CHASE BANK, N.A.,                     as Joint Lead Arrangers and Joint Bookrunners,                                        and                             WELLS FARGO SECURITIES, LLC,                     as Left Lead Arranger and Left Lead Bookrunner        5th A&R Credit Agreement 4849-3766-0574 v7.doc  4148425    





 






                                 TABLE OF CONTENTS   SECTION                            HEADING                              PAGE   ARTICLE I         DEFINITIONS .................................................................................................1      Section 1.01.    Defined Terms .......................................................................................1      Section 1.02.    Classification of Loans and Borrowings ..............................................32      Section 1.03.    Terms Generally ...................................................................................32      Section 1.04.    Accounting Terms; GAAP; Pro Forma Treatment ..............................32      Section 1.05.    Foreign Currency Calculations ............................................................33      Section 1.06.    Redenomination of Certain Foreign Currencies ..................................33      Section 1.07.    Divisions ..............................................................................................34      Section 1.08.    Rates .....................................................................................................34   ARTICLE II        THE CREDITS ..............................................................................................34      Section 2.01.    Commitments .......................................................................................34      Section 2.02.    Loans and Borrowings .........................................................................35      Section 2.03.    Requests for Revolving Borrowings ....................................................36      Section 2.04.    [Reserved] ...........................................................................................37      Section 2.05.    Swingline Loans ...................................................................................37      Section 2.06.    Letters of Credit ...................................................................................39      Section 2.07.    Funding of Borrowings ........................................................................44      Section 2.08.    Interest Elections ..................................................................................45      Section 2.09.    Termination and Reduction of Commitments ......................................46      Section 2.10.    Repayment of Loans; Evidence of Debt ..............................................47      Section 2.11.    Prepayment of Loans ...........................................................................48      Section 2.12.    Fees ......................................................................................................49      Section 2.13.    Interest ..................................................................................................50      Section 2.14.    Alternate Rate of Interest .....................................................................51      Section 2.15.    Increased Costs ....................................................................................52      Section 2.16.    Break Funding Payments .....................................................................55      Section 2.17.    Taxes ....................................................................................................55      Section 2.18.    Payments Generally; Pro Rata Treatment; Sharing of Set-                      offs .......................................................................................................59      Section 2.19.    Mitigation Obligations; Replacement of Lenders ................................61      Section 2.20.    Subsidiary Borrowers ...........................................................................62      Section 2.21.    Additional Reserve Costs .....................................................................62      Section 2.22.    Ancillary Facilities ...............................................................................63      Section 2.23.    Optional Increase .................................................................................66      Section 2.24.    Defaulting Lenders ...............................................................................68      Section 2.25.    U.S. Borrower Guaranty ......................................................................72   ARTICLE III       REPRESENTATIONS AND WARRANTIES ........................................................72      Section 3.01.    Organization; Powers ...........................................................................72      Section 3.02.    Authorization; Enforceability ..............................................................73                                         -i-  





 






       Section 3.03.    Governmental Approvals; No Conflicts ..............................................73      Section 3.04.    Financial Condition; No Material Adverse Change .............................73      Section 3.05.    Properties .............................................................................................73      Section 3.06.    Litigation and Environmental Matters .................................................74      Section 3.07.    Compliance with Requirements of Law and Contractual                       Obligations ...........................................................................................74      Section 3.08.    Investment Company Status ................................................................74      Section 3.09.    Taxes ....................................................................................................74      Section 3.10.    ERISA ..................................................................................................74      Section 3.11.    Disclosure ............................................................................................74      Section 3.12.    Use of Advances ..................................................................................75      Section 3.13.    Labor Matters .......................................................................................75      Section 3.14.    Anti-Corruption Laws; Anti-Money Laundering Law and                       Sanctions ..............................................................................................75      Section 3.15.    Solvency ...............................................................................................76      Section 3.16.    Insurance ..............................................................................................76   ARTICLE IV        CONDITIONS ................................................................................................76      Section 4.01.    Restatement Effective Date ..................................................................76      Section 4.02.    Each Credit Event ................................................................................78      Section 4.03.    Credit Events Relating to Subsidiary Borrowers .................................78   ARTICLE V         AFFIRMATIVE COVENANTS .........................................................................79      Section 5.01.    Financial Statements and Other Information .......................................79      Section 5.02.    Notices of Material Events ...................................................................80      Section 5.03.    Existence; Conduct of Business ...........................................................81      Section 5.04.    Payment of Obligations ........................................................................81      Section 5.05.    Maintenance of Properties; Insurance ..................................................81      Section 5.06.    Books and Records; Inspection Rights ................................................81      Section 5.07.    Compliance ..........................................................................................81      Section 5.08.    Use of Proceeds and Letters of Credit .................................................82      Section 5.09.    Additional Covenants ...........................................................................82      Section 5.10.    Compliance with Anti-Corruption Laws, Anti-Money                       Laundering Laws and Sanctions ..........................................................82      Section 5.11.    Compliance with Beneficial Ownership Regulation ............................82      Section 5.12.    Post-Closing Matters ............................................................................82   ARTICLE VI        NEGATIVE COVENANTS ..............................................................................83      Section 6.01.    Subsidiary Indebtedness .......................................................................83      Section 6.02.    Liens .....................................................................................................83      Section 6.03.    Fundamental Changes ..........................................................................84      Section 6.04.    Investments, Loans, Advances and Acquisitions .................................85      Section 6.05.    Swap Agreements ................................................................................86      Section 6.06.    Restricted Payments .............................................................................86      Section 6.07.    Transactions with Affiliates .................................................................86                                        -ii-  





 






       Section 6.08.    Restrictive Agreements ........................................................................87      Section 6.09.    Disposition of Assets; Etc ....................................................................87      Section 6.10.    Change in Business ..............................................................................87      Section 6.11.    Leverage Ratio .....................................................................................88      Section 6.12.    Interest Coverage Ratio ........................................................................88      Section 6.13.    Debt Prepayments ................................................................................88      Section 6.14.    Sanctions Laws and Regulations .........................................................89   ARTICLE VII       EVENTS OF DEFAULT ..................................................................................89      Section 7.01.    Events of Default .................................................................................89   ARTICLE VIII      THE AGENTS ...............................................................................................92      Section 8.01.    Appointment, Powers and Immunities .................................................92      Section 8.02.    Reliance by the Administrative Agent .................................................93      Section 8.03.    Defaults ................................................................................................93      Section 8.04.    Indemnification ....................................................................................94      Section 8.05.    Non-Reliance .......................................................................................94      Section 8.06.    Resignation of the Administrative Agent ............................................95      Section 8.07.    Performance of Conditions ..................................................................95      Section 8.08.    The Administrative Agent in its Individual Capacity;                       Other Relationships ..............................................................................96      Section 8.09.    Administrative Agent May File Proofs of Claim .................................96      Section 8.10.    Designation of Affiliates for Foreign Currency Loans ........................96   ARTICLE IX        MISCELLANEOUS ........................................................................................97      Section 9.01.    Notices .................................................................................................97      Section 9.02.    Waivers; Amendments .........................................................................99      Section 9.03.    Expenses; Indemnity; Damage Waiver ..............................................100      Section 9.04.    Successors and Assigns ......................................................................103      Section 9.05.    Survival ..............................................................................................108      Section 9.06.    Counterparts; Integration; Effectiveness; Electronic                       Execution ...........................................................................................108      Section 9.07.    Severability ........................................................................................108      Section 9.08.    Right of Setoff ....................................................................................109      Section 9.09.    Governing Law; Jurisdiction; Consent to Service of                       Process ...............................................................................................109      Section 9.10.    Waiver of Jury Trial ...........................................................................110      Section 9.11.    Headings ............................................................................................110      Section 9.12.    Confidentiality ...................................................................................110      Section 9.13.    Interest Rate Limitation .....................................................................111      Section 9.14.    USA PATRIOT Act; Anti-Money Laundering Laws ...........................111      Section 9.15.    Conversion of Currencies ..................................................................111      Section 9.16.    Waivers and Agreements ...................................................................112      Section 9.17.    Clarification .......................................................................................114                                         -iii-  





 






       Section 9.18.    Acknowledgement and Consent to Bail-In of EEA                       Financial Institutions ..........................................................................114      Section 9.19.    Amendment and Restatement ............................................................115      Section 9.20.     Departing Lenders; Equalization of Outstanding                       Obligations .........................................................................................115      Section 9.21.    Certain Erisa Matters .........................................................................116      Section 9.22.    Acknowledgment Regarding any Supported QFCs ...........................117   ARTICLE X         COLLECTION ALLOCATION MECHANISM ..................................................118      Section 10.01.   Implementation of CAM ....................................................................118      Section 10.02.   Letters of Credit .................................................................................119     SCHEDULES:   SCHEDULE 2.01  —     Commitments  SCHEDULE 2.06  —     Existing Letters of Credit  SCHEDULE 3.06  —     Disclosed Matters  SCHEDULE 3.16  —     Insurance  SCHEDULE 6.01  —     Existing Subsidiaries Indebtedness  SCHEDULE 6.02  —     Existing Liens  SCHEDULE 6.08  —     Existing Restrictions   EXHIBITS:   EXHIBIT A      —     Form of Assignment and Assumption  EXHIBIT B      —     Subsidiary Borrower Agreement  EXHIBIT C      —     Subsidiary Borrower Termination  EXHIBIT D-1    —     U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships                       for U.S. Federal Income Tax Purposes)  EXHIBIT D-2    —     U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for                       U.S. Federal Income Tax Purposes)  EXHIBIT D-3    —     U.S. Tax Certificate (For Non-U.S. Participants that are not                       Partnerships for U.S. Federal Income Tax Purposes)  EXHIBIT D-4    —     U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships                       for U.S. Federal Income Tax Purposes)  EXHIBIT E      —     U.S. Borrower Guaranty  EXHIBIT F      —     Mandatory Cost Rate  EXHIBIT G      —     Form of Opinion of Subsidiary Borrower’s Counsel for Domestic                       Subsidiaries                                           -iv-  





 






                    FIFTH AMENDED AND RESTATED CREDIT AGREEMENT         This FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as  of August 28, 2019, is among Herman Miller, Inc., the Subsidiary Borrowers party hereto, the  Lenders party hereto and Wells Fargo Bank, National Association, as Administrative Agent.                                     RECITALS        A.   The  U.S. Borrower,  the  Administrative  Agent  and  the  Lenders  previously entered  into  that  certain Fourth Amended  and  Restated  Credit  Agreement  dated  as  of September  13, 2016 (as it existed immediately prior to the effectiveness of this Agreement, the “Existing  Agreement”);        B.   The U.S. Borrower has requested that the Lenders consent to amend and restate the  Existing Agreement to provide for certain changes to the terms and provisions therein;        C.   As  a result  of  such  request,  the  parties  wish  to  amend  and  restate  the  Existing  Agreement.         NOW, THEREFORE,  in  consideration  of  the  above  Recitals  and  the  mutual  covenants  contained herein, the parties hereby agree that this Agreement amends and restates the Existing  Agreement in its entirety, effective as of the Restatement Effective Date, as follows:                                     ARTICLE I                                                                            DEFINITIONS      Section 1.01. Defined Terms.  As used in this Agreement, the following terms have the  meanings specified below:         “ABR” 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 Alternate Base Rate.         “Acquired Portion” has the meaning assigned to such term in Section 2.23(f).         “Acquisition” means any transaction, or any series of related transactions, consummated  on or after the date of this Agreement, by which the U.S. Borrower or any of its Subsidiaries  (a) acquires any going business or all or substantially all of the assets of any firm, corporation or  limited  liability  company,  or  division  thereof,  whether  through  purchase  of  assets,  merger  or  otherwise or  (b) directly  or  indirectly  acquires  (in  one  transaction  or  as  the  most  recent  transaction  in  a  series  of  transactions)  at  least a  majority  (in  number  of  votes)  of  the  Equity  Interests of a Person.                                             





 






         “Adjusted  LIBO  Rate” means,  with  respect  to  any  Eurocurrency  Borrowing  for  any  Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period  multiplied by (b) the Statutory Reserve Rate.         “Administrative Agent” means Wells Fargo, in its capacity as administrative agent for the  Lenders hereunder, and any successor Administrative Agent appointed pursuant to Section 8.06.         “Administrative  Questionnaire” means an  Administrative  Questionnaire  in  a  form  supplied by the Administrative Agent.         “Advance” means any Loan or any Letter of Credit.         “Affiliate” means,  with  respect  to  a specified  Person,  another Person  that  directly,  or  indirectly through one or more intermediaries, Controls or is Controlled by or is under common  Control with the Person specified.         “Agents” means the Administrative Agent and the Syndication Agent.         “Aggregate  Ancillary  Commitments” means,  at  any  time,  the  aggregate  amount  of  the  Ancillary Commitments of all Lenders at such time.         “Aggregate Ancillary Facility Exposure” means, at any time, the aggregate amount of  the Ancillary Facility Exposures of all Lenders at such time.         “Aggregate Commitments” means,  at  any  time,  the  aggregate  amount  of  the  Commitments of all Lenders at such time.         “Aggregate Revolving Credit Exposure” means, at any time, the aggregate amount of the  Revolving Credit Exposures of all Lenders at such time.         “Aggregate  Total  Exposure” means,  at  any  time, the  sum  of  the  Aggregate  Revolving  Credit Exposure and the Aggregate Ancillary Facility Exposure at such time.         “Agreement Currency” has the meaning assigned to such term in Section 9.15(b).         “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 Federal Funds Effective Rate in effect on such  day plus one and one-half percent (1.50%) and (c) One-Month LIBO Rate in effect on such day  plus the  difference  between  the  Applicable  Margin for  any  ABR  Loan  on  such  day  and  the  Applicable Margin for any Eurocurrency Loan on such day.          “Ancillary  Commitment” means,  with  respect  to  any  Ancillary  Lender  and  Ancillary  Facility, the  maximum  amount  that  such  Ancillary  Lender  has  agreed  to  make  available  from  time  to  time  during  the  Availability  Period  under  such  Ancillary  Facility  created  pursuant  to  Section 2.22  by  such  Ancillary  Lender; provided that  at  no  time  shall  (a) all  Ancillary                                        -2-                                           





 






   Commitments of such Ancillary Lender and the Revolving Credit Exposure of such Ancillary  Lender exceed (b) the Commitment of such Ancillary Lender.         “Ancillary Facility” means any facility made available for a Subsidiary Borrower by a  Lender pursuant to Section 2.22.         “Ancillary  Facility  Document” means,  with  respect  to any  Ancillary  Facility,  the  agreements between the applicable Subsidiary Borrower and the Ancillary Lender(s) thereunder  providing such Ancillary Facility.         “Ancillary Facility Exposure” means, with respect to any Lender at any time, the Dollar  Equivalent of the outstanding principal amount of such Lender’s Ancillary Loans at such time.         “Ancillary  Facility  Termination  Date” has  the  meaning  assigned  to  such term  in  Section 2.22(e)(i).         “Ancillary  Lender” means,  with  respect to  any  Ancillary  Facility,  the  Lender  that  has  made such Ancillary Facility available under Section 2.22.         “Ancillary  Loan” means,  at  any  time,  a  loan  under  an  Ancillary  Facility  in  respect of  which  the  applicable  Ancillary  Lender has  advanced  funds  to  the Subsidiary  Borrower  thereunder.         “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction from  time to time concerning or relating to bribery or corruption, including the United States Foreign  Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act  2010 and the rules and regulations thereunder.         “Anti-Money  Laundering  Laws” means  any  and  all  laws,  statutes,  regulations  or  obligatory government orders, decrees, ordinances or rules related to terrorism financing, money  laundering, any predicate crime to money laundering or any financial record keeping, including  any  applicable  provision  of  the  Patriot  Act  and  The  Currency  and  Foreign  Transactions  Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C.  §§ 1818(s), 1820(b) and 1951-1959).         “Applicable  Agent” means  (a) with  respect  to  a  Loan  or  Borrowing  denominated  in  Dollars  or  with  respect  to  any  payment  that  does  not  relate to  any Loan  or  Borrowing,  the  Administrative Agent, and (b) with respect to a Loan or Borrowing denominated in a Foreign  Currency, the Administrative Agent or an Affiliate thereof designated pursuant to Section 8.10.         “Applicable Creditor” has the meaning assigned to such term in Section 9.15(b).         “Applicable Adjusted Percentage” means, with respect to any Lender, the percentage of  (a) the  Aggregate  Commitments minus the  Aggregate  Ancillary  Commitments,  represented  by  (b) such  Lender’s  Commitment minus such  Lender’s Ancillary  Commitments.   If  the  Commitments  have  terminated  or  expired,  the  Applicable  Adjusted  Percentage  shall  be                                        -3-                                           





 






   determined based upon the Commitments and Ancillary Commitments most recently in effect,  giving effect to any assignments.         “Applicable Margin” means, for any day, with respect to any ABR Loan, Eurocurrency  Loan,  Swingline  Loan  bearing  interest  at  the  One-Month  LIBO  Rate  or  with  respect  to  the  facility fees payable hereunder, as the case may be, the applicable rate per annum set forth below  based upon the Leverage Ratio as of the most recent Determination Date:                                                EUROCURRENCY OR            LEVEL     LEVERAGE RATIO     ABR SPREAD   ONE-MONTH LIBO SPREAD FACILITY FEE RATE     1        < 1.00 to 1.00      0.00%             0.75%              0.10%    2        ≥ 1.00 to 1.00      0.00%             0.85%              0.125%             < 1.50 to 1.00    3        ≥ 1.50 to 1.00      0.00%             0.95%              0.15%             < 2.00 to 1.00    4        ≥ 2.00 to 1.00      0.05%             1.05%              0.175%             < 2.50 to 1.00    5        ≥ 2.50 to 1.00      0.25%             1.25%              0.20%             < 3.00 to 1.00    6        ≥ 3.00 to 1.00      0.50%             1.50%              0.225%   The Applicable Margin shall be determined in accordance with the foregoing table based on the  Leverage Ratio as of each Determination Date, as calculated for the four most recently ended  consecutive  fiscal  quarters  of  the  U.S. Borrower; provided, however, that  during  the Step-Up  Period, the Applicable Margin with respect to any Loan shall be 0.25% higher than the rate set  forth in the foregoing table.  Adjustments, if any, to the Applicable Margin shall be effective five  Business Days after the Administrative Agent actually receives the applicable financials required  to be provided by the U.S. Borrower under Section 5.01(a) or (b) and the Compliance Certificate  required  under  Section 5.01(c).   If  the  U.S. Borrower  fails  to  deliver  the  financials  to  the  Administrative Agent at the time required hereunder, then the Applicable Margin shall be set at  Level 6 until  five  Business  Days  after  such  financials  are  so delivered.   Notwithstanding  anything  herein  to  the  contrary,  the  Applicable  Margin shall  be  set  at Level 1 as  of  the  Restatement Effective Date hereof and shall be adjusted for the first time based on the Leverage  Ratio  as  of  the  first  full  fiscal  quarter ending  after  the  Restatement  Effective  Date.   For  the  avoidance  of  doubt,  the  Applicable  Margin  as  in  effect  under  the Existing Agreement  immediately prior to the Restatement Effective Date shall be applicable to all interest and facility  fees accruing prior to the Restatement Effective Date.         “Applicable  Percentage” means,  with  respect  to  any  Lender,  the  percentage  of  the  Aggregate Commitments represented by such Lender’s Commitment.  If the Commitments have  terminated  or  expired,  the  Applicable  Percentages  shall  be  determined  based upon  the  Commitments most recently in effect, giving effect to any assignments.         “Approved Fund” has the meaning assigned to such term in Section 9.04.         “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an Eligible Assignee (with the consent of any party whose consent is required by                                       -4-                                           





 






   Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other  form approved by the Administrative Agent.         “Available Unused Commitment” means, with respect to a Lender at any time, an amount  equal to the amount by which (a) the Commitment of such Lender at such time exceeds (b) the  sum  of  (i) the  Revolving  Credit  Exposure  of  such  Lender  at  such  time  and  (ii) the  Ancillary  Commitments (if any) of such Lender at such time.         “Availability  Period” means  the  period  from  and  including  the  Restatement  Effective  Date to  but  excluding  the  earlier  of  the  Maturity  Date  and  the  date  of  termination  of  the  Commitments.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, with respect to any EEA Member Country implementing  Article  55  of  Directive 2014/59/EU  of  the  European Parliament  and  of  the  Council  of  the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.         “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq.         “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which  may  include  Term  SOFR)  that  has  been selected  by the  Administrative  Agent  and  the U.S.  Borrower giving due consideration to (i) any selection or recommendation of a replacement rate  or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any  evolving or then-prevailing market convention for determining a rate of interest as a replacement  to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark  Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would  be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this  Agreement.         “Benchmark  Replacement  Adjustment” means,  with  respect  to  any  replacement  of the  LIBO Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the  spread adjustment, or method for calculating or determining such spread adjustment, (which may  be a positive or negative value or zero) that has been selected by the Administrative Agent and  the U.S. Borrower giving due consideration to (a) any selection or recommendation of a spread  adjustment,  or  method  for  calculating  or  determining  such  spread  adjustment,  for  the  replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the  Relevant  Governmental  Body  or (b)  any  evolving  or  then-prevailing  market  convention  for  determining  a  spread  adjustment,  or  method  for  calculating  or  determining  such  spread  adjustment,  for  the  replacement  of the LIBO Rate with  the  applicable  Unadjusted  Benchmark  Replacement for U.S. dollar-denominated syndicated credit facilities at such time.          “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any  technical, administrative  or  operational  changes  (including  changes  to  the                                        -5-                                           





 






   definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency of  determining  rates  and  making  payments  of  interest and  other  administrative  matters)  that  the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of  such  Benchmark  Replacement  and  to  permit the  administration  thereof  by  the  Administrative  Agent in a manner substantially consistent with market practice (or, if the Administrative Agent  decides that adoption of any portion of such market practice is not administratively feasible or if  the  Administrative  Agent  determines  that  no  market  practice  for  the  administration  of  the  Benchmark  Replacement  exists,  in  such  other  manner  of  administration  as  the  Administrative  Agent decides is reasonably necessary in connection with the administration of this Agreement).          “Benchmark Replacement Date” means the earlier to occur of the following events with  respect to the LIBO Rate:                (a)   in the case of clause (a) or (b) of the definition of “Benchmark Transition        Event,” the  later  of  (i)  the  date  of  the  public  statement  or  publication  of  information        referenced  therein  and  (ii)  the  date  on  which the  administrator  of the LIBO Rate        permanently or indefinitely ceases to provide the LIBO Rate; and                (b)   in  the  case  of  clause  (c)  of the  definition  of “Benchmark  Transition        Event,” the date of the public statement or publication of information referenced therein.          “Benchmark  Transition Event” means  the  occurrence  of  one  or  more  of  the following  events with respect to the LIBO Rate:                (a)   a  public  statement  or  publication  of  information  by  or  on  behalf  of  the        administrator  of the  LIBO Rate announcing  that  such  administrator  has  ceased  or  will        cease to provide the LIBO Rate, permanently or indefinitely; provided that, at the time of        such  statement  or  publication,  there  is  no  successor  administrator  that  will  continue  to        provide the LIBO Rate;                (b)   a  public  statement  or  publication  of  information  by the  regulatory        supervisor for the administrator of the LIBO Rate, the U.S. Federal Reserve System, an        insolvency  official  with  jurisdiction  over  the  administrator  for the LIBO Rate,  a        resolution authority with jurisdiction over the administrator for the LIBO Rate or a court        or an entity with similar insolvency or resolution authority over the administrator for the        LIBO Rate, which states that the administrator of the LIBO Rate has ceased or will cease        to provide the LIBO Rate permanently or indefinitely; provided that, at the time of such        statement or publication, there is no successor administrator that will continue to provide        the LIBO Rate; or                (c)   a  public statement  or  publication  of  information  by  the  regulatory        supervisor for the administrator of the LIBO Rate announcing that the LIBO Rate is no        longer representative.          “Benchmark  Transition  Start Date” means (a)  in  the  case  of  a  Benchmark Transition  Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark                                        -6-                                           





 






   Transition Event is a public statement or publication of information of a prospective event, the  ninetieth (90th) day  prior  to  the  expected  date  of  such  event as  of  such  public  statement  or  publication of information (or if the expected date of such prospective event is fewer than ninety  (90) days after such statement or publication, the date of such statement or publication) and (b)  in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the  Required Lenders, as applicable, by notice to the U.S. Borrower, the Administrative Agent (in  the case of such notice by the Required Lenders) and the Lenders.          “Benchmark  Unavailability  Period” means, if  a  Benchmark  Transition  Event  and  its  related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to  the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period  (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time,  no  Benchmark  Replacement  has  replaced the LIBO Rate for  all  purposes  hereunder  in  accordance with Section 2.14(b) and (b) ending at the time that a Benchmark Replacement has  replaced the LIBO Rate for all purposes hereunder pursuant to Section 2.14(b).         “Beneficial  Ownership  Certification” means  a  certification  regarding  beneficial  ownership  as  required  by  the  Beneficial Ownership Regulation,  which  certification  shall  be  substantially  similar  in  form  and  substance  to  the  form  of  Certification  Regarding  Beneficial  Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and  Trading Association and Securities Industry and Financial Markets Associations.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that  is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code  or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for  purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee  benefit plan” or “plan”.         “Board” means  the  Board  of  Governors  of  the  Federal  Reserve  System  of  the  United  States of America.         “Board of Directors” means:  (a) with respect to a corporation, the board of directors of  the corporation or such directors or committee serving a similar function; (b) with respect to a  limited liability company, the board of managers of the company or such managers or committee  serving a similar function; (c) with respect to a partnership, the board of directors of the general  partner  of  the  partnership;  and (d) with  respect  to  any  other  Person,  the  managers,  directors,  trustees, board or committee of such Person or its owners serving a similar function.         “Borrowers” means the U.S. Borrower and the Subsidiary Borrowers.         “Borrowing” means  (a) Revolving  Loans  of the same  Type,  made,  converted  or  continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest  Period is in effect, (b) Ancillary Loans of the same Type, made, converted or continued on the  same date and made with respect to the same Ancillary Facility or (c) a Swingline Loan.                                        -7-                                           





 






         “Borrowing Minimum” means (a) in the case of a Revolving Borrowing denominated in  Dollars,  $3,000,000,  (b) in  the  case  of  a  Revolving  Borrowing  denominated  in  a  Foreign  Currency, the smallest amount of such Foreign Currency that is a multiple of 1,000,000 units of  such Foreign Currency and has a Dollar Equivalent in excess of $3,000,000, (c) in the case of a  Borrowing of  Ancillary  Loans, such  amount  agreed  upon  in  the  relevant  Ancillary  Facility  Document, (d) in the case of a Swingline Borrowing denominated in Dollars, $500,000 or such  other amount agreed to by the Swingline Lender, and (e) in the case of a Swingline Borrowing  denominated in  a  Foreign  Currency,  the  smallest  amount  of  such  Foreign  Currency  that is  a  multiple  of  100,000  units  of  such  Foreign  Currency  and  has  a  Dollar  Equivalent  in  excess  of  $500,000 or such other amount agreed to by the Swingline Lender.         “Borrowing Multiple” means (a) in the case of a Revolving Borrowing denominated in  Dollars, $500,000, (b) in the case of a Revolving Borrowing denominated in a Foreign Currency,  500,000 units of such Foreign Currency, (c) in the case of a Borrowing of Ancillary Loans, such  amount agreed upon in the relevant Ancillary Facility Document, (d) in the case of a Swingline  Borrowing denominated in Dollars, $100,000 or such other amount agreed to by the Swingline  Lender,  and  (e) in  the  case  of  a  Swingline  Borrowing denominated  in  a  Foreign  Currency,  100,000 units of such Foreign Currency or such other amount agreed to by the Swingline Lender.         “Borrowing  Request” means  a  request  by  the  Borrower  for  a  Revolving  Borrowing  in  accordance with Section 2.03.         “Business  Day” means  any  day  that is  not  a Saturday,  Sunday  or  other  day  on  which  commercial  banks in New York  City are  authorized  or  required  by  law  to  remain  closed;  provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall  also exclude any day on which banks are not open for dealings in deposits in the currency in  which such Eurocurrency Loan is denominated in the London interbank market.         “CAM” means the mechanism for the allocation and exchange of interests in the Loans  and participations in Letters of Credit and collections thereunder established under Article X.         “CAM  Exchange” means  the  exchange  of  the  Lenders’  interests  provided  for  in  Section 10.01.         “CAM  Exchange  Date” means  the  first  date  after  the Restatement  Effective  Date  on  which  there  shall occur  (a) any  event  described  in  paragraph (h)  or  (i) of Section 7.01  with  respect to any Borrower or (b) an acceleration of Advances pursuant to Article VII.         “CAM  Percentage” means,  as  to  each  Lender,  the  Applicable  Percentage  calculated  immediately prior to the CAM Exchange Date.         “Capital  Lease  Obligations” of  any  Person  means,  subject  to  Section 1.04, the  obligations of such Person to pay rent or other amounts under any lease of (or other arrangement  conveying the right to use) real or personal property, or a combination thereof, which obligations  are required to be classified and accounted for as capital or finance leases on a balance sheet of  such Person under GAAP, and the amount of such obligations shall be the capitalized amount                                        -8-                                           





 






   thereof determined in accordance with GAAP. For the avoidance of doubt, obligations of any  Person under leases that are classified as “operating leases” shall not be included in the definition  of “Capital Lease  Obligations,” regardless  of  whether  such  obligations  are  shown  on  such  Person’s balance sheet.         “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative  Agent, for its own benefit and for the benefit of the Issuing Bank, the Swingline Lender and/or  the  Lenders, as  applicable,  as  collateral subject  to  a  first  priority, perfected  security  interest  securing the Obligations or the obligations of a Defaulting Lender, as applicable, cash or deposit  account balances in an amount equal to the LC Exposure, the obligations of the Lenders to fund  participations  in  respect  of  Swingline Loans,  and/or obligations  of  a  Defaulting Lender,  as  applicable,  pursuant  to  documentation  in  form  and  substance  reasonably  satisfactory  to  the  Administrative  Agent,  the  Issuing  Bank  and/or  the  Swingline  Lender,  as  applicable (which  documents  are  hereby consented  to  by the  Lenders).   Derivatives of  such  term  shall  have  a  corresponding meaning.         “Change  in  Control” means  (a) the  membership  of  the  U.S. Borrower’s  Board  of  Directors changes by more than 50% during any 12-month period, or the number of members on  the U.S. Borrower’s Board of Directors either increases or decreases by more than 50% during  any 12-month period, (b) any person or group or persons (within the meaning of Section 13(d) of  the  Exchange  Act,  as  amended)  shall  obtain  ownership  or  control in  one  or  more series  of  transactions of more than 33% of the common Equity Interests or 33% of the voting power of the  Equity Interests of the U.S. Borrower entitled to vote in the election of members of the Board of  Directors  of  the  U.S. Borrower,  or  (c) there  shall  have  occurred  under any credit  agreement,  indenture or other instrument evidencing any Indebtedness in excess of $10,000,000 any “change  in control” or similar term (as defined in such credit agreement, indenture or other evidence of  Indebtedness)  obligating,  or  permitting  the  holders of  such  Indebtedness  to  obligate,  the  U.S. Borrower or any of its Subsidiaries to repurchase, redeem or repay all or any part of the  Indebtedness or Equity Interests provided for therein.         “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change  in any law, rule, regulation or treaty or in the administration, interpretation, implementation or  application thereof by any Governmental Authority, or (c) the making or issuance of any request,  rule,  guideline  or  directive  (whether  or  not  having  the  force  of  law)  by  any  Governmental  Authority; provided that  notwithstanding  anything  herein  to  the contrary, (i)  the  Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives  promulgated  by  the  Bank  for  International  Settlements,  the  Basel Committee  on  Banking  Supervision  (or any  successor  or  similar  authority)  or  the  United  States  or  foreign  regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.         “Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan,  or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.                                        -9-                                           





 






         “Code” means the Internal Revenue Code of 1986, as amended from time to time.         “Commitment” means, with respect to each Lender, the commitment of such Lender to  make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans  hereunder,  expressed  as  an  amount  representing  the  maximum  aggregate  amount  of such  Lender’s Revolving Credit Exposure hereunder, as such commitment may be reduced from time  to time pursuant to Section 2.09 or 9.04.  The amount of each Lender’s Commitment as of the  Restatement Effective Date is set forth on Schedule 2.01, or in the Assignment and Assumption  pursuant  to which  such  Lender  shall  have  assumed  its  Commitment,  as  applicable.   The  aggregate  amount  of  the  Lenders’  Commitments  as  of  the Restatement  Effective  Date is  $500,000,000.         “Compliance Certificate” has the meaning assigned in Section 5.01(c).         “Connection Income  Taxes” means  Other  Connection  Taxes  that  are  imposed  on  or  measured  by  net  income  (however  denominated)  or  that  are  franchise  Taxes  or  branch  profits  Taxes.         “Consolidated EBITDA” means, with reference to any period, the net income (or loss) of  the  U.S. Borrower  and its  Subsidiaries  for  such  period,  plus,  to  the  extent deducted  from  revenues  in  determining  such  net  income,  (a) Consolidated  Interest  Expense,  (b) expense  for  income  taxes  paid  or  accrued,  (c) depreciation,  (d) amortization,  (e) other  non-cash  expenses,  including  non-cash,  share-based  compensation  deducted from  net  income  in  accordance  with  SFAS 123(R), (f) non-recurring costs or expenses incurred in connection with a restructuring or  permitted  merger  or acquisition  (in  each  case,  with  the written  consent of  the  Administrative  Agent, which shall not be unreasonably withheld) and (g) extraordinary non-cash losses incurred  other than in the ordinary course of business, minus, to the extent included in such net income,  extraordinary gains realized other than in the ordinary course of business, all as determined in  accordance  with  GAAP  and  calculated  for  the  U.S. Borrower and  its  Subsidiaries  on  a  consolidated basis.         “Consolidated Indebtedness” means at any time the Indebtedness of the U.S. Borrower  and its Subsidiaries calculated on a consolidated basis.         “Consolidated  Interest  Expense” means, with  reference  to  any period, the  Interest  Expense of the U.S. Borrower and its Subsidiaries calculated on a consolidated basis for such  period.         “Consolidated Total Assets” means, as of any date, the total assets of the U.S. Borrower  and  the  consolidated  Subsidiaries,  determined  in  accordance  with  GAAP,  as  set  forth  on  the  consolidated balance sheet of the U.S. Borrower as of such date.         “Contractual  Obligation” means,  as  to  any  Person,  any  material  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.                                        -10-                                           





 






         “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction  of  the  management  or  policies  of a Person,  whether  through  the  ability  to  exercise  voting  power,  by  contract  or  otherwise.  “Controlling” and “Controlled” have  meanings  correlative thereto.         “Decreasing Lender” has the meaning assigned to such term in Section 2.23(f).         “Debtor Relief Law” means the Bankruptcy Code of the United States of America and all  other  liquidation,  conservatorship, bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  laws of the United States or other applicable jurisdictions from time to time in effect.         “Default” means any event or condition which constitutes an Event of Default or which  upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.         “Defaulting Lender” means, subject to Section 2.24(b), any Lender that (a) has failed to  (i) fund  all  or any  portion of the  Loans,  participations  in  LC  Exposure  or  participations  in  Swingline  Loans  required  to  be  funded  by it  hereunder within  two  Business  Days  of  the  date  such Loans or participations were required to be funded hereunder unless such Lender notifies  the Administrative Agent and the U.S. Borrower in writing that such failure is the result of such  Lender’s  determination  that  one  or  more  conditions  precedent  to funding  (each  of  which  conditions precedent, together with any applicable default, shall be specifically identified in such  writing)  has  not  been satisfied,  or  (ii)  pay  to  the  Administrative  Agent,  the  Issuing  Bank,  the  Swingline  Lender  or  any  other  Lender  any  other  amount  required  to  be  paid  by  it  hereunder  (including  in  respect of its  participation in Letters  of  Credit  or  Swingline  Loans)  within  two  Business Days of the date when due, (b) has notified any Borrower, the Administrative Agent,  the Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its  funding obligations hereunder, or has made a public statement to that effect (unless such writing  or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that  such  position  is  based  on  such  Lender’s  determination  that a  condition  precedent  to  funding  (which condition precedent, together with any applicable default, shall be specifically identified  in  such  writing  or  public  statement)  cannot be  satisfied),  (c) has failed,  within  three  Business  Days  after  written  request by  the  Administrative  Agent  or  the  U.S.  Borrower,  to  confirm  in  writing  to  the  Administrative  Agent  and  the  U.S.  Borrower  that it  will  comply  with  its  prospective  funding  obligations hereunder  (provided that  such  Lender  shall  cease  to  be  a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent and the U.S. Borrower), (d) has, or has a direct or indirect parent company  that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed  for it  a  receiver,  custodian,  conservator,  trustee,  administrator,  assignee  for  the  benefit  of  creditors or similar Person charged with reorganization or liquidation of its business or assets,  including the FDIC or any other state or federal regulatory authority acting in such a capacity, or  (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting  Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or  any  direct or  indirect  parent company  thereof  by  a  Governmental  Authority  so  long  as  such  ownership interest does not result in or provide such Lender with immunity from the jurisdiction  of courts within the United States or from the enforcement of judgments or writs of attachment                                        -11-                                           





 






   on  its  assets  or  permit  such  Lender  (or  such  Governmental  Authority)  to  reject,  repudiate,  disavow or disaffirm any contracts or agreements made with such Lender, or (e) is an Ancillary  Lender and refuses to extend credit under an Ancillary Facility other than a refusal in accordance  with  the  terms  of  the  applicable  Ancillary  Facility  Document  and  the  terms  hereof.   Any  determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or  more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and  such  Lender  shall  be  deemed  to  be  a  Defaulting  Lender  (subject  to Section 2.24(b))  upon  delivery  of  written  notice  of  such  determination  to  the  U.S.  Borrower,  the  Issuing  Bank,  the  Swingline Lender and each Lender.         “Departing  Lender” means  each  Lender  under,  and  as  defined  in,  the  Existing  Agreement on the Restatement Effective Date prior to giving effect hereto that is not a Lender  hereunder on the Restatement Effective Date, after giving effect hereto.         “Determination Date” means (a) for purposes of the definition of “Applicable Margin,”  the last day of any fiscal quarter of the U.S. Borrower, (b) for purposes of Section 6.04(c) with  respect to (i) any investment, loan or advance, the date such investment, loan or advance is made  or  (ii)  any  acquisition,  the  date  such  acquisition  closes,  (c) for  purposes of  Section 6.06(c)(ii)  with respect to any Restricted Payment, the date such Restricted Payment is made and (d) for  purposes  of  Section 6.13(b)  with  respect to  any  Senior  Notes  Prepayment,  the  date  on  which  such Senior Notes Prepayment is made.         “Disclosed Matters” means  the actions,  suits  and proceedings  and the  environmental  matters disclosed in Schedule 3.06.         “Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any  security into which it is convertible or for which it is exchangeable), or upon the happening of  any  event,  matures  or  is  mandatorily  redeemable,  pursuant  to  a  sinking  fund  obligation  or  otherwise, or redeemable at the option of the holder thereof, in whole or in part.         “Division” means  a  division  of the assets,  liabilities  and/or  obligations  of  a  Person  among  two  or  more  surviving  Persons,  pursuant  to  a  plan  of  division  or  similar  arrangement  under Delaware law (or any comparable event under a different jurisdiction’s laws).         “Dollars” or “$” refers to lawful money of the United States of America.         “Dollar Equivalent” means, on any date of determination (a) with respect to any amount  in  Dollars,  such  amount, and  (b) with  respect  to  any  amount  in  any  Foreign  Currency,  the  equivalent  in  Dollars  of  such  amount,  determined  by the  Administrative  Agent  pursuant  to  Section 1.05 using the Exchange Rate with respect to such Foreign Currency at the time in effect  under the provisions of such Section.         “Dollar Letter of Credit” means any Letter of Credit denominated in Dollars.         “Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.                                        -12-                                           





 






         “Early Opt-in Election” means the occurrence of:                (a)   (i) a determination by the Administrative Agent or (ii) a notification by the        Required Lenders to the Administrative Agent (with a copy to the U.S. Borrower) that the        Required  Lenders  have  determined  that  U.S.  dollar-denominated  syndicated  credit        facilities being executed at such time, or that include language similar to that contained in        Section 2.14(b) are being executed or amended, as applicable, to incorporate or adopt a        new benchmark interest rate to replace the LIBO Rate, and                (b)   (i) the  election  by  the  Administrative  Agent  or (ii)  the  election  by  the        Required Lenders to declare that an Early Opt-in Election has occurred and the provision,        as applicable, by the Administrative Agent of written notice of such election to the U.S.        Borrower and the Lenders or by the Required Lenders of written notice of such election        to the Administrative Agent.         “EEA  Financial  Institution” means  (a)  any  credit  institution  or  investment  firm  established  in  any  EEA  Member  Country  which  is  subject  to  the  supervision  of  an  EEA  Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  an institution described in clause (a) of this definition, or (c) any financial institution established  in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)  of this definition and is subject to consolidated supervision with its parent.         “EEA Member  Country” means any  of  the  member  states of  the  European  Union,  Iceland, Liechtenstein, and Norway.         “EEA  Resolution  Authority” means  any  public  administrative  authority  or  any  person  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.         “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) any Person that  is  (or  will be)  engaged  in  making,  purchasing,  holding  or  otherwise  investing  in  commercial  loans and similar extensions of credit in the ordinary course of business to the extent such Person  is administered or managed by:  (i) a Lender; (ii) an Affiliate of a Lender; or (iii) a Person or an  Affiliate of a Person that administers or manages a Lender; and (d) any other Person approved by  the  Administrative  Agent, the  Swingline  Lender  and  the  Issuing  Bank; provided that  notwithstanding the foregoing, “Eligible Assignee” shall not include any Borrower, any Affiliate  or Subsidiary of any Borrower or any natural person.         “EMU  Legislation” means the  legislative  measures  of the  European  Union  for  the  introduction  of,  changeover  to or operation  of  the  euro  in  one  or  more  member states  of  the  European Union.         “Environmental  Laws” means  all  laws,  rules,  regulations,  codes,  ordinances,  orders,  decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered  into  by  any  Governmental  Authority,  relating  in any  way  to  the  environment,  preservation  or                                        -13-                                           





 






   reclamation  of  natural  resources,  the  management,  release  or  threatened  release  of  any  Hazardous Material or to health and safety matters.         “Environmental  Liability” means  any  liability,  contingent  or  otherwise  (including  any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  U.S. Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation  of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or  disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or  threatened  release  of  any  Hazardous  Materials  into the  environment  or  (e) any  contract,  agreement or other consensual arrangement pursuant to which liability is assumed or imposed  with respect to any of the foregoing.         “Equity  Interests” means  shares  of  capital  stock,  partnership  interests,  membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership  interests in  a  Person,  and  any  warrants,  options  or  other  rights  entitling  the  holder  thereof  to  purchase or acquire any such equity interest.         “ERISA” means  the Employee Retirement  Income  Security  Act  of  1974,  as  amended  from time to time.         “ERISA  Affiliate” means any  trade  or  business (whether  or  not  incorporated)  that,  together with the U.S. Borrower, is treated as a single employer under Section 414(b) or (c) of  the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated  as a single employer under Section 414 of the Code.         “ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of ERISA  or the regulations issued thereunder with respect to a Plan (other than an event for which the  30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated  funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether  or not waived (or, for years in which funding requirements are governed by the PPA, any failure  to  satisfy  the  applicable  minimum  funding  standards  under  Section 412(a)(2) of  the  Code  or  Section 302(a)(2) of ERISA, whether or not waived); (c) the filing pursuant to Section 412(d) of  the  Code  or  Section 303  of  ERISA  (or,  for years  in  which  the  PPA  applies to  any  Plan,  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 U.S. 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 U.S. 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 U.S. Borrower or  any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal  from  any  Plan  or  Multiemployer  Plan;  or  (g) the  receipt  by  the  U.S. Borrower  or  any  ERISA  Affiliate of any notice, or the receipt by any Multiemployer Plan from the U.S. Borrower or any  ERISA  Affiliate  of  any  notice,  concerning  the  imposition  of Withdrawal Liability  or  a  determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,  within the meaning of Title IV of ERISA.                                        -14-                                           





 






         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.         “Euro” or “€” means the single currency of the European Union as constituted by the  treaty establishing the European Community being the Treaty of Rome, as amended from time to  time and as referred to in the EMU Legislation.         “Eurocurrency,” 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” has the meaning assigned to such term in Article VII.         “Exchange Act” means the Securities Exchange Act of 1934.         “Exchange Rate” means on any day, for purposes of determining the Dollar Equivalent  of any other currency, the rate at which such other currency may be exchanged into Dollars at the  time of determination on such day on the Reuters WRLD Page for such currency.  In the event  that  such  rate  does  not  appear  on  any  Reuters  WRLD  Page,  the  Exchange  Rate  shall  be  determined by reference to such other publicly available service for displaying exchange rates as  may be agreed upon by the Administrative Agent and the Borrowers, or, in the absence of such  an agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of  exchange  of  the  Administrative  Agent  in  the  market  where  its  foreign  currency  exchange  operations  in  respect  of  such  currency  are  then  being  conducted,  at  or  about  such  time  as  the  Administrative  Agent  shall  elect  after  determining  that  such  rates  shall  be  the  basis  for  determining  the  Exchange  Rate,  on  such  date  for  the  purchase of  Dollars  for  delivery  two  Business Days later; provided that if at the time of any such determination, for any reason, no  such  spot  rate  is  being  quoted,  the Administrative  Agent  may  use  any  reasonable  method  it  deems  appropriate  to  determine  such  rate, and  such  determination  shall  be  conclusive  absent  manifest error.         “Exchange Rate Date” means, if on such date any outstanding Loan is (or any Loan that  has been requested at such time would be) denominated in a currency other than Dollars, each of:               (a)   the last Business Day of each calendar month,               (b)   if an Event of Default has occurred and is continuing, the CAM Exchange        Date  and  any  other  Business  Day  designated  as an Exchange  Rate  Date  by  the        Administrative Agent in its sole discretion, and               (c)   each  date  (with  such  date  to  be  reasonably  determined  by  the        Administrative  Agent)  that  is  on  or  about  the  date  of  (i) a  Borrowing  Request  or  an        Interest Election Request with respect to any Revolving Borrowing or (ii) each request        for  the  issuance,  amendment,  renewal or  extension  of  any  Ancillary  Loan,  Letter  of        Credit or Swingline Loan.                                        -15-                                           





 






         “Excluded  Taxes” means  any  of  the  following  Taxes  imposed  on  or  with  respect  to a  Recipient or  required  to  be  withheld  or  deducted  from  a  payment  to  a  Recipient,  (a) Taxes  imposed  on or  measured  by  net  income  (however  denominated),  franchise  Taxes,  and  branch  profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office  located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are  Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes  imposed on amounts payable to or for the account of such Lender with respect to an applicable  interest  in  a  Loan  or  Commitment  pursuant  to  a  law  in  effect  on  the  date  on  which  (i)  such  Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request  by  the  U.S.  Borrower under  Section 2.19(b)) or  (ii) such  Lender  changes  its Lending  Office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to  such  Taxes  were  payable  either  to  such  Lender’s  assignor  immediately  before  such  Lender  became  a  party  hereto  or  to  such Lender  immediately  before  it  changed  its Lending Office,  (c) Taxes  attributable  to  such  Recipient’s  failure  to  comply  with  Section 2.17(f)  and  (d) any  United States federal withholding Taxes imposed under FATCA.         “Existing Agreement” has the meaning assigned to such term in the Recitals.         “Existing Letters of Credit” has the meaning assigned to such term in Section 2.06(m).         “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.         “FATCA”  means  Sections  1471  through  1474  of  the  Code,  as  of  the  Restatement  Effective Date (or any amended or successor version that is substantively comparable and not  materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official  interpretations  thereof  and  any  agreement entered  into  pursuant  to  Section 1471(b)(1)  of  the  Code.         “FDIC” means the Federal Deposit Insurance Corporation.         “Federal Funds  Effective  Rate” means,  for  any  day,  the  weighted  average  (rounded  upwards,  if  necessary,  to  the  next  1/100  of  1%)  of  the  rates  on  overnight  Federal  funds  transactions with members of the Federal Reserve System arranged by Federal funds brokers, as  published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if  such rate is not so published for any day that is a Business Day, the average (rounded upwards, if  necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received  by the Administrative Agent from three Federal funds brokers of recognized standing selected by  it.         “Federal  Reserve  Bank  of  New  York’s  Website” means  the  website  of  the  Federal  Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.         “Fee  Letter” means,  collectively,  (a) the  letter  agreement  dated  as  of August 8, 2019,  among the U.S. Borrower, Wells Fargo and Wells Fargo Securities, LLC regarding certain fees                                        -16-                                           





 






   payable  by  the  U.S. Borrower to Wells  Fargo  and  Wells  Fargo Securities,  LLC  as  expressly  indicated therein, (b) the  letter  agreement  dated  as  of  August 22,  2019,  between the U.S.  Borrower and JP Morgan regarding certain fees payable by the U.S. Borrower to JP Morgan as  expressly indicated therein, and (c) any other fee letter executed after the Restatement Effective  Date by the U.S. Borrower or any of its Subsidiaries and Wells Fargo, Wells Fargo Securities,  LLC or JP Morgan in connection with this Agreement.         “Financial  Officer” means  the  chief financial  officer,  principal  accounting  officer,  treasurer or controller of the U.S. Borrower.         “Foreign  Currency” means  (a) with  respect  to an  Ancillary  Facility,  any  currency  acceptable  to  the  Administrative  Agent  that  is freely available,  freely transferable  and  freely  convertible into Dollars and in which dealings in deposits are carried on in the London interbank  market,  and (b) otherwise,  Euros,  Sterling  and  any  other  currency  acceptable  to  the  Administrative  Agent  and the  Lenders  that  is freely  available,  freely  transferable  and  freely  convertible into Dollars and in which dealings in deposits are carried on in the London interbank  market.         “Foreign  Currency  Letter  of  Credit” means  any  Letter  of  Credit  denominated  in  a  Foreign Currency.         “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction  other than that in which the U.S. Borrower is located.  For purposes of this definition, the United  States of America, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.         “Foreign Subsidiary” means any Subsidiary that is incorporated or organized under the  laws of any jurisdiction other than the United States of America, any State thereof or the District  of Columbia.         “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to  the  Issuing  Bank,  such  Defaulting  Lender’s  Applicable  Adjusted  Percentage of  the  total  LC  Exposure, other than LC Exposure as to which such Defaulting Lender’s participation obligation  has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof,  and  (b) with  respect  to  the  Swingline  Lender,  such  Defaulting  Lender’s  Applicable  Adjusted  Percentage  of  the  total  Swingline  Exposure,  other  than  Swingline Exposure as to  which  such  Defaulting  Lender’s  participation  obligation  has  been  reallocated  to  other Lenders  or  Cash  Collateralized in accordance with the terms hereof.         “GAAP”  means  generally  accepted  accounting  principles  in  the  United States  of  America.           “Governmental Authority” means the government of the United States of America or any  other  nation or of any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative, judicial,  taxing,  regulatory  or  administrative powers  or  functions  of  or                                        -17-                                           





 






   pertaining to government (including any supra-national bodies such as the European Union or  the European Central Bank).         “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise,  of  the  guarantor  guaranteeing  or  having  the  economic  effect  of  guaranteeing  any  Indebtedness  or  other  obligation  of  any  other  Person  (the “primary  obligor”) in  any  manner,  whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,  (a) to  purchase  or  pay  (or  advance  or  supply  funds  for  the  purchase  or  payment  of)  such  Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase  of) any security for the payment thereof, (b) to purchase or lease property, securities or services  for the purpose of assuring the owner of such Indebtedness or other obligation of the payment  thereof, (c) to maintain working capital, equity capital or any other financial statement condition  or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness  or other obligation, (d) as an account party in respect of any letter of credit, bank guarantee or  letter  of  guaranty  issued  to  support  such  Indebtedness  or  obligation or  (e)  for  the  purpose of  assuring in any other manner the obligee in respect of such Indebtedness or other obligation of  the  payment  or  performance  thereof  or  to  protect  such  obligee  against loss  in respect  thereof  (whether in whole or in part); provided, that the term Guarantee shall not include endorsements  for collection or deposit in the ordinary course of business.         “Hazardous Materials” means all explosive or radioactive substances or wastes and all  hazardous  or  toxic  substances,  wastes  or  other  pollutants,  including  petroleum  or  petroleum  distillates,  asbestos  or  asbestos  containing  materials,  polychlorinated  biphenyls,  radon  gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant  to any Environmental Law.         “Increase Effective Date” has the meaning assigned to such term in Section 2.23(d).         “Increasing Lender” has the meaning assigned to such term in Section 2.23(a).         “Indebtedness” of  any  Person means, without  duplication,  (a) all  obligations  of  such  Person  for  borrowed  money  or  with  respect  to  deposits  or  advances  of  any  kind, (b) all  obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all  obligations of such Person upon which interest charges are customarily paid, (d) all obligations  of  such  Person  under  conditional  sale  or  other  title retention  agreements  relating  to  property  acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase  price  of  property  or  services  (excluding (i) current  accounts  payable incurred  in  the  ordinary  course of business and (ii) Supply Chain Accounts Payable incurred in the ordinary course of  business, regardless  of  whether such  current  accounts  payable or  Supply  Chain Accounts  Payable  are  required  to  be  classified  as  debt  under GAAP  or  any other  accounting  rules  or  standards from time to time applicable to a Borrower), (f) all Indebtedness of others secured by  (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be  secured  by) any  Lien on  property owned  or  acquired  by  such  Person, whether  or  not  the  Indebtedness  secured  thereby  has  been  assumed,  (g) all  Guarantees  by  such  Person  of  Indebtedness  of  others,  (h) all  Capital  Lease  Obligations  of such  Person,  (i) all  obligations,  contingent or otherwise, of such Person as an account party in respect of letters of credit, letters                                        -18-                                           





 






   of guaranty and bank guarantees, (j) all obligations, contingent or otherwise, of such Person in  respect  of  bankers’  acceptances,  (k) all  Off-Balance  Sheet  Liabilities  of  such  Person,  (l) all  obligations  under  any Disqualified  Stock  of  such  Person  and  (m) the  Net  Mark-to-Market  Exposure of such Person under Swap Agreements.  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  provide  that  such  Person is  not  liable  therefor.   Indebtedness  of  any  Person  shall  not  include  (i) leases under which such Person is lessee that are true operating leases or (ii) such Person’s  obligations under performance bonds.         “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  Borrower  under  any  Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.         “Indemnitee” has the meaning assigned thereto in Section 9.03(b).          “Interest  Coverage  Ratio” means,  as  of  the  end  of  any  fiscal  quarter  of  the  U.S. Borrower,  the  ratio  of  Consolidated EBITDA  to  Consolidated  Interest  Expense,  as  calculated for the four consecutive fiscal quarters of the U.S. Borrower then ending.         “Interest Election Request” means a request by the U.S. Borrower to convert or continue  a Revolving Borrowing in accordance with Section 2.08.         “Interest Expense” means, with respect to any person for any period, the sum of (a) gross  interest  expense  of  such  person  for  such  period  on  a  consolidated  basis,  including  (i) the  amortization  of  debt discounts,  (ii) the  amortization  of  all  fees  (including fees  with respect  to  Swap  Agreements)  payable  in  connection  with  the  incurrence  of  Indebtedness  to the  extent  included in interest expense, (iii) the portion of any payments or accruals with respect to Capital  Lease Obligations allocable to interest expense and (iv) commissions, discounts, yield and other  fees and charges incurred in connection with the asset securitization or similar transaction which  are  payable  to  any  person  other  than  the  U.S. Borrower  or  a  Wholly-Owned  Subsidiary  and  (b) capitalized  interest of such  person.   For  purposes  of the  foregoing,  gross  interest  expense  shall  be determined  after  giving  effect  to  any  net  payments  made  or  received  by  the  U.S. Borrower and the Subsidiaries with respect to Swap Agreements.         “Interest  Payment  Date” means  (a) with  respect  to  any  ABR  Loan  (other  than  a  Swingline Loan), the last day of each March, June, September and December, (b) with respect to  any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which  such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more  than three months’ duration, each day prior to the last day of such Interest Period that occurs at  intervals of three months’ duration after the first day of such Interest Period and (c) with respect  to any Swingline Loan, the last day of each month.         “Interest  Period” means,  with  respect  to  any  Eurocurrency  Revolving  Borrowing,  the  period commencing on the date of such Borrowing and ending on the numerically corresponding                                        -19-                                           





 






   day  in  the calendar  month  that  is  one,  two, three  or  six  months  (or,  with  the  consent  of each  relevant Lender, such other period requested by a Borrower) thereafter, as a Borrower may elect;  provided,  that  (i) if  any  Interest  Period  would  end  on  a  day  other than  a  Business  Day,  such  Interest Period shall be extended to the next succeeding Business Day unless, in the case of a  Eurocurrency  Borrowing  only,  such  next  succeeding  Business  Day  would  fall  in  the next  calendar month, in which case such Interest Period shall end on the next preceding Business Day  and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences on the last  Business Day of a calendar month (or on a day for which there is no numerically corresponding  day in the last calendar month of such Interest Period) shall end on the last Business Day of the  last  calendar  month  of such  Interest  Period.   For  purposes  hereof, the  date  of  a  Borrowing  initially shall be the date on which such Borrowing is made and thereafter shall be the effective  date of the most recent conversion or continuation of such Borrowing.         “IRS” means the United States Internal Revenue Service.         “Issuing Bank” means any of the following, in its capacity as an issuer of one or more  Letters of Credit hereunder:  (a) Wells Fargo, (b) any Affiliate of Wells Fargo, (c) any issuer of  Existing Letters of Credit deemed issued hereunder, (d) any other Lender or an Affiliate of such  Lender, to the extent the Administrative Agent has acknowledged such other Lender or Affiliate  in  writing,  following  the  Administrative  Agent’s  receipt  of  written  notice  from  the U.S.  Borrower (such  acknowledgment  not  to  be  unreasonably withheld  or  delayed),  and  (e) any  successors in such capacity as provided in Section 2.06(i).  For the avoidance of doubt, the term  “Issuing Bank” shall include any and all such Issuing Banks with respect to Letters of Credit  issued by such Issuing Banks.         “Joint Bookrunners” means each of Wells Fargo Securities, LLC and JP Morgan, in its  capacity as a joint bookrunner.  Except as expressly set forth in clause (y) of Section 9.02(b) and  in Section 9.03,  the  capacity  of  each  Joint  Bookrunner  is  titular  in  nature,  and  no  Joint  Bookrunner shall have any special rights or obligations over those of a Lender by reason thereof.         “Joint Lead Arranger” means each of Wells Fargo Securities, LLC and JP Morgan, in its  capacity as a joint lead arranger.  Except as expressly set forth in clause (y) of Section 9.02(b)  and in Section 9.03, the capacity of each Joint Lead Arranger is titular in nature, and no Joint  Lead  Arranger  shall  have  any  special  rights  or  obligations  over  those of  a  Lender  by  reason  thereof.         “JP Morgan” means JPMorgan Chase Bank, N.A., a national banking association, and  its successors.         “Judgment Currency” has the meaning assigned to such term in Section 9.15(b).         “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of  Credit.         “LC Exposure” means, at any time, the sum of (a) the Dollar Equivalent of the aggregate  undrawn amount of all outstanding Letters of Credit at such time plus (b) the Dollar Equivalent                                        -20-                                           





 






   of the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on  behalf of the U.S. Borrower at such time.  The LC Exposure of any Lender at any time shall be  its Applicable Adjusted Percentage of the total LC Exposure at such time.         “LC Risk Participation” means, with respect to any Lender and any Letter of Credit as of  any date of determination, the sum of (a) such Lender’s Applicable Adjusted Percentage of the  LC Exposure attributable to such Letter of Credit outstanding at such time plus (b) the aggregate  amount  of  all  Defaulting  Lenders’  Applicable  Adjusted  Percentage  of  the  LC  Exposure  attributable to such Letter of Credit outstanding at such time that have been reallocated to such  Lender pursuant to Section 2.24(a)(iv).         “Left  Lead  Arranger” means  Wells  Fargo  Securities,  LLC,  in  its  capacity  as  left  lead  arranger.  Except as expressly set forth in clause (y) of Section 9.02(b) and in Section 9.03, the  capacity of the Left Lead Arranger is titular in nature, and the Left Lead Arranger shall not have  any special rights or obligations over those of a Lender by reason thereof.         “Left Lead Bookrunner” means Wells Fargo Securities, LLC, in its capacity as left lead  bookrunner.  Except as expressly set forth in clause (y) of Section 9.02(b) and in Section 9.03,  the capacity of the Left Lead Bookrunner is titular in nature, and the Left Lead Bookrunner shall  not have any special rights or obligations over those of a Lender by reason thereof.         “Lenders” means  the Persons  listed  on  Schedule  2.01  and  any  other Person  that shall  have  become  a  party  hereto  pursuant  to an  Assignment  and  Assumption,  other  than  any  such  Person that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the  context otherwise requires, the term “Lenders” includes the Swingline Lender.         “Lending  Office” means,  with  respect  to  any  Lender,  the office  of  such  Lender  maintaining such Lender’s extensions of credit, which office may, to the extent the applicable  Lender notifies the Administrative Agent in writing, include an office of any Affiliate of such  Lender or any domestic or foreign branch of such Lender or Affiliate.         “Letter of  Credit” means  any  of  the  following,  whether  denominated  in Dollars  or  a  Foreign Currency:  (a) any letter of credit or bank guarantee issued pursuant to this Agreement,  and (b) any Existing Letter of Credit deemed issued hereunder.          “Leverage  Ratio” means,  as  of  the  applicable  Determination  Date,  the ratio of  (a) Consolidated Indebtedness as of such date to (b) Consolidated EBITDA, as calculated for the  most  recently-ended  four  fiscal  quarter  period  for  which  the  U.S. Borrower  has  delivered  financial statements under Section 5.01(a) or Section 5.01(b).         “LIBO  Rate” means, subject  to  the  implementation  of  a Benchmark  Replacement  in  accordance with Section 2.14(b), with respect to any Eurocurrency Borrowing for any Interest  Period,  the  rate  per  annum  determined  by  the  Applicable  Agent  at approximately  11:00  a.m.,  London  time,  two London  Banking Days  before  the  beginning  of such  Interest  Period,  as  published  by  the  ICE  Benchmark  Administration  Limited, a  United  Kingdom  company,  or  a  comparable or successor quoting service approved by the Applicable Agent, for deposits in the                                        -21-                                           





 






   currency  of  such  Borrowing, for  a  period  equal  to  such  Interest  Period; provided that, to  the  extent  that  an  interest  rate  is  not  ascertainable  pursuant  to  the  foregoing  provisions  of  this  definition,  the  “LIBO  Rate”  shall  be the average of  the  respective  interest  rates  per  annum  at  which deposits in the currency of such Borrowing are offered for such Interest Period to first  class banks in the London interbank market by Wells Fargo at approximately 11:00 a.m., London  time, two London Banking Days before the beginning of such Interest Period; provided, further,  that, (x) in no event shall the LIBO Rate (including any Benchmark Replacement with respect  thereto) be less than zero percent (0.00%) and (y) unless otherwise specified in any amendment  to this Agreement entered into in accordance with Section 2.14(b), in the event that a Benchmark  Replacement with  respect  to  the  LIBO Rate  is  implemented  then  all  references  herein to  the  LIBO Rate shall be deemed references to such Benchmark Replacement.         “Lien” means,  with  respect  to  any  asset, (a) any  mortgage,  deed  of  trust,  lien,  pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of  a  vendor  or  a  lessor  under  any  conditional sale  agreement,  capital lease  or title  retention  agreement (or any financing lease having substantially the same economic effect as any of the  foregoing)  relating  to  such  asset  and  (c) in  the  case  of  securities,  any  purchase  option,  call  or  similar right of a third party with respect to such securities.         “Loan Documents” means this Agreement, the U.S. Borrower Guaranty, each Ancillary  Facility Document and all instruments, agreements or other documents executed in connection  herewith at any time.         “Loans” means any Ancillary Loan, Swingline Loan or Revolving Loan.         “Local Time” means (a) with respect to a Loan or Borrowing denominated in Dollars,  New York City time, and (b) with respect to a Loan or Borrowing denominated in any Foreign  Currency, London time.         “London Banking  Day” means any  day on which  dealings  in  Dollar  deposits  are  conducted by and between banks in the London interbank Eurodollar market.         “Material  Adverse  Effect” means  a  material  adverse  effect  on  (a) the  business,  assets,  operations,  prospects or  condition,  financial or  otherwise,  of  the  U.S. Borrower  and  its  Subsidiaries taken as a whole, (b) the ability of any Borrower to perform any of its obligations  under  any  Loan  Document  or  (c) the  rights  of  or  benefits  available  to  the  Lenders  under  any  Loan Document.         “Material  Indebtedness” means  Indebtedness  (other than  the  Loans  and  Letters  of  Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the  U.S. Borrower  and  its  Subsidiaries in  an  aggregate  principal  amount exceeding  the  Dollar  Equivalent of $15,000,000.  For purposes of determining Material Indebtedness, the “principal  amount” of  the  obligations  of  the  U.S.  Borrower  or  any  Subsidiary  in  respect  of  any  Swap  Agreement  at  any  time  shall  be  the  maximum  aggregate  amount  (giving  effect to  any  netting  agreements) that the U.S. Borrower or such Subsidiary would be required to pay if such Swap  Agreement were terminated at such time.                                        -22-                                           





 






         “Maturity  Date” means August 28, 2024,  or  such  earlier  date  as  may  be  determined  pursuant to Section 2.09.         “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of  ERISA to which any Borrower or any ERISA Affiliate is making, or is accruing an obligation to  make, or has accrued an obligation to make contributions within the preceding five (5) years, or  to which any Borrower or any ERISA Affiliate has any liability (contingent or otherwise).         “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the  excess (if any) of all unrealized losses over all unrealized profits of such Person arising from  Swap Agreements.  “Unrealized losses” means the fair market value of the cost to such Person of  replacing  such  Swap  Agreements  as  of the  date  of determination  (assuming  the  Swap  Agreements were to be terminated as of that date), and “unrealized profits” means the fair market  value  of the  gain  to  such  Person  of  replacing  such  Swap  Agreements  as  of  the  date  of  determination (assuming such Swap Agreements were to be terminated as of that date).         “New Lender” has the meaning assigned to such term in Section 2.23(b).         “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (i) requires the approval of all or all affected Lenders in accordance with the  terms of Section 9.04 and (ii) has been approved by the Required Lenders.         “Non-Defaulting  Lender” means,  at  any  time,  each  Lender  that  is  not  a  Defaulting  Lender at such time.         “Notice of Termination” has the meaning assigned to such term in Section 2.22(e)(ii).         “Obligations” means all unpaid principal of, accrued and unpaid interest and fees and  reimbursement  obligations  on  the  Advances,  all  accrued  and  unpaid  fees  and  all  expenses,  reimbursements,  indemnities and  other  obligations  of  the  Borrowers  or  any  of  them  to  the  Lenders, the Agents, any indemnified party or any of them arising under the Loan Documents.         “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.         “Off-Balance  Sheet  Liability” of  a  Person  means  (a) any  obligation  under  a  sale  and  leaseback transaction which is not a Capital Lease Obligation, (b) any so-called “synthetic lease”  or  “tax  ownership  operating  lease”  transaction  entered  into  by  such  Person,  (c) the amount of  obligations outstanding under the legal documents entered into as part of any asset securitization  or similar transaction on any date of determination that would be characterized as principal if  such asset securitization or similar transaction were structured as a secured lending transaction  rather than as a purchase or (d) any other transaction (excluding operating leases for purposes of  this clause (d)) which is the functional equivalent of or takes the place of borrowing but which  does not constitute a liability on the balance sheet of such Person; in all of the foregoing cases,  calculated based on the aggregate outstanding amount of obligations outstanding under the legal  documents entered into as part of any such transaction on any date of determination that would  be characterized as principal if such transaction were structured as a secured lending transaction,                                        -23-                                           





 






   whether or not shown as a liability on a consolidated balance sheet of such Person, in a manner  reasonably satisfactory to the Administrative Agent.         “One-Month  LIBO  Rate” means,  subject  to  the  implementation  of  a  Benchmark  Replacement in accordance with Section 2.14(b), a rate per annum equal to the product of (a) the  rate per annum determined by the Applicable Agent on the applicable day (provided that if such  day is not a Business Day for which a LIBO Rate is quoted, the next preceding Business Day for  which a LIBO Rate is quoted), at approximately 11:00 a.m., London time (or as soon thereafter  as practicable), as published by the ICE Benchmark Administrative Limited, a United Kingdom  company, or a comparable or successor quoting service approved by the Applicable Agent, for  deposits being delivered in the London interbank market for the currency in which such Loan or  other  Obligation  is denominated for  a  term  of  one  month  commencing  on  such  date  of  determination, multiplied  by (b) the  Statutory  Reserve  Rate  in effect  on  such  day.   If for  any  reason rates are not available as provided in clause (a) of the preceding sentence, the rate to be  used in clause (a) shall be, at the Applicable Agent’s discretion, (i) the rate per annum at which  deposits are offered to the Applicable Agent in the London interbank market for the currency in  which such Loan or other Obligation is denominated or (ii) the rate at which deposits are offered  to  the  Applicable Agent  in,  or  by  the  Applicable Agent  to first  class banks  in,  any  offshore  interbank market selected by the Applicable Agent for the currency in which such Loan or other  Obligation is denominated, in each case on the applicable day (provided that if such day is not a  Business  Day for which  deposits  are  offered  to  the  Applicable Agent  in  the  London  or  such  offshore interbank market, the next preceding Business Day for which deposits are offered to the  Applicable Agent  in  the  London  or  such  offshore  interbank  market)  at  or  about  11:00 a.m.,  London time (or as soon thereafter as practicable) (for delivery on such date of determination)  for a one-month term; provided that, in no event shall the One-Month LIBO Rate be less than  zero percent (0.00%).         “Other  Connection  Taxes” means,  with respect  to  any Recipient,  Taxes  imposed  as  a  result of a present or former connection between such Recipient and the jurisdiction imposing  such  Tax  (other  than  connections  arising  from  such  Recipient  having  executed,  delivered,  become  a  party  to,  performed its obligations  under,  received  payments  under,  received  or  perfected a security interest under, engaged in any other transaction pursuant to or enforced any  Loan Document, or sold or assigned an interest in any Loan or Loan Document).         “Other  Taxes” means all present  or future  stamp,  court  or  documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 2.19).         “Original Effective Date” means December 18, 2007.         “Participant” has the meaning set forth in Section 9.04(c).         “Participant Register” has the meaning set forth in Section 9.04(c).                                         -24-                                           





 






         “Patriot Act” has the meaning assigned to such term in Section 9.14.         “PBGC”  means  the  Pension  Benefit  Guaranty  Corporation  referred to  and  defined  in  ERISA and any successor entity performing similar functions.         “Permitted Acquisition” has the meaning set forth in Section 6.04(c).         “Permitted Encumbrances” means:               (a)   Liens  imposed  by  law  for  taxes  that  are  not  delinquent  or  are  being        contested in compliance with Section 5.04;               (b)   carriers’,  warehousemen’s, mechanics’,  materialmen’s,  repairmen’s  and        other like Liens imposed by law, arising in the ordinary course of business and securing        obligations  that  are  not  overdue by  more  than  30  days  or  are  being  contested  in        compliance with Section 5.04;               (c)   pledges  and  deposits  made  in  the  ordinary  course  of  business  in        compliance  with  workers’  compensation,  unemployment  insurance  and  other  social        security laws or regulations;               (d)   deposits  to  secure  the  performance  of  bids,  trade  contracts,  leases,        statutory obligations, surety and appeal bonds, performance bonds and other obligations        of a like nature, in each case in the ordinary course of business;               (e)   judgment liens in respect of judgments that do not constitute an Event of        Default under clause (k) of Article VII; and                (f)  easements, zoning restrictions, rights-of-way and similar encumbrances on        real  property  imposed  by  law  or  arising  in  the  ordinary  course  of  business  that do  not        secure  any monetary  obligations  and  do not  materially  detract  from  the  value  of  the        affected property or interfere with the ordinary conduct of business of the U.S. Borrower        or any Subsidiary;   provided that  the  term  “Permitted  Encumbrances”  shall  not  include  any  Lien securing  Indebtedness.         “Permitted  Investments” means  any  investment  that would  qualify as  cash  equivalents  under  GAAP  and  any  other  investments  that  are  either:   (i) permitted  by  U.S. Borrower’s  investment policy as of the Restatement Effective Date; or (ii) permitted under any revised or  successor investment policy that may from time to time be adopted by the U.S. Borrower after  the Restatement Effective Date, so long as any such investment described in this subsection (ii)  that would not have been permitted under the U.S. Borrower’s investment policy described in  subsection (i) is reasonably acceptable to the Administrative Agent.                                         -25-                                           





 






         “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.         “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 U.S. 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.         “PPA” means the Pension Protection Act of 2006.         “Prime Rate” means, at any time, the rate of interest per annum publicly announced from  time to time by the Administrative Agent as its prime rate.  Each change in the Prime Rate shall  be effective as of the opening of business on the day such change in such prime rate occurs.  The  parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its  prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to  its customers or other banks.         “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.         “Recipient” means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank,  as applicable.         “Register” has the meaning set forth in Section 9.04(b)(iv).         “Related  Parties” means,  with  respect  to  any Person,  such Person’s  Affiliates  and  the  partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and  representatives of such Person and of such Person’s Affiliates.         “Relevant  Governmental  Body” means  the  Federal  Reserve  Board  and/or  the  Federal  Reserve  Bank  of  New  York,  or  a  committee  officially endorsed  or  convened  by  the  Federal  Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.         “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.         “Required  Lenders” means,  at  any  time,  Lenders  having  Commitments  representing  more than 50% of the sum of the total Commitments of all Lenders at such time; provided that,  for purposes of declaring the Advances to be due and payable pursuant to Article VII, and for all  purposes  after  the  Advances  become  due  and  payable  pursuant  to  Article VII  or  the  Commitments  expire  or  terminate,  Required  Lenders  means  Lenders  having  a  share  of  the  Aggregate Total Exposure representing more than 50% of the Aggregate Total Exposure.  The                                        -26-                                           





 






   Commitment  and  share  of  the  Aggregate  Total  Exposure  of  any Defaulting  Lender shall  be  disregarded in determining Required Lenders at any time.  In addition, for the purposes of this  definition, (a) any Lender and its Affiliates shall constitute a single Lender, (b) in no event shall  Required Lenders include fewer than two (2) Lenders at any time there are two (2) or three (3)  Lenders, and (c) in no event shall Required Lenders include fewer than three (3) Lenders at any  time there are four (4) or more Lenders.         “Restatement  Effective  Date” means  the  date  on  which  the  conditions  specified  in  Section 4.01 are satisfied (or waived in accordance with Section 9.02).         “Reserve Account” has the meaning assigned to such term in Section 10.02(a).         “Restricted  Payment” means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or  other  property)  with  respect  to  any Equity  Interests  in  the  U.S. Borrower  or  any  Subsidiary, or any payment (whether in cash, securities or other property), including any sinking  fund  or  similar  deposit,  on  account  of  the  purchase,  redemption,  retirement,  acquisition,  cancellation or termination of any Equity Interests in the U.S. Borrower or any option, warrant or  other right to acquire any Equity Interests in the U.S. Borrower.           “Revolving Borrowing” means a Borrowing of Revolving Loans.         “Revolving Credit Exposure” means, with respect to any Lender at any time, the Dollar  Equivalent of the sum of the outstanding principal amount of such Lender’s Revolving Loans  and its LC Exposure and Swingline Exposure at such time.         “Revolving Facility Increase” has the meaning assigned to such term in Section 2.23(d).         “Revolving Loan” means a loan made pursuant to Section 2.01.         “Sanctioned Country” means at any time, a country, region or territory which is itself (or  whose government is) the subject or target of any Sanctions (including, as of the Restatement  Effective Date, Cuba, Iran, North Korea, Syria and Crimea).         “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related  list  of  designated  Persons  maintained  by  OFAC (including OFAC’s  Specially Designated  Nationals  and  Blocked  Persons  List  and  OFAC’s Consolidated  Non-SDN  List), the U.S.  Department of State, the United Nations Security Council, the European Union, any European  member  state, Her  Majesty’s  Treasury,  or  other  relevant  sanctions  authority, (b) any  Person  operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by,  or  acting  or  purporting  to act  for  or  on behalf  of,  directly  or  indirectly, any  such  Person  or  Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a  Sanctions target based on the ownership of such legal entity by Sanctioned Person(s) or (d) any  Person otherwise a target of Sanctions, including vessels and aircraft, that are designated under  any Sanctions program.                                         -27-                                           





 






         “Sanctions” means  any  and  all  economic  or  financial  sanctions,  sectoral  sanctions,  secondary sanctions, trade embargoes and restrictions and anti-terrorism laws, including but not  limited to those imposed, administered or enforced from time to time by the U.S. government  (including those administered by OFAC or the U.S. Department of State), the United Nations  Security Council, the European Union, any European member state, Her Majesty’s Treasury, or  other  relevant  sanctions  authority  in  any  jurisdiction  in  which  (a) any Borrower  or  any  Subsidiaries or Affiliates of a Borrower is located or conducts business, (b) in which any of the  proceeds of the extensions of credit will be used, or (c) from which repayment of the extensions  of credit will be derived.         “SEC” means the U.S. Securities and Exchange Commission, any successor thereto and  any analogous Governmental Authority.         “Senior Notes” means the U.S. Borrower’s Series A Senior Notes due January 3, 2015,  Series B Notes due January 3, 2018, and Series A Notes due March 1, 2021.         “Senior Notes Documents” means (a) that certain Note Purchase Agreement, dated as of  December 18, 2007, by and among the U.S. Borrower and the various financial institutions and  other  persons  from  time  to  time  party  thereto  as  purchasers,  and  (b) that  certain  Private  Shelf  Agreement, dated as of December 14, 2010, by and among the U.S. Borrower and the various  financial institutions and other persons from time to time party thereto as purchasers.         “Senior Notes Prepayment” has the meaning assigned to such term in Section 6.13.         “SOFR” with respect to any day means the secured overnight financing rate published  for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark,  (or a successor administrator) on the Federal Reserve Bank of New York’s Website.         “Solvent” means, with respect to any Person on any date, that on such date (a) the fair  value  of the  property  of  such  Person  is  greater  than  the  fair  value  of  the  liabilities  (including  contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the present fair  saleable value of the assets of such Person is greater than the amount that will be required to pay  the probable liability of such Person on its debts as they become absolute and matured, (c) such  Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such  Person’s ability to pay as such debts and liabilities mature and (d) such Person is not engaged in  or about to engage in business or transactions for which such Person’s property would constitute  an unreasonably small capital.         “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 percentages (including any marginal, special, emergency or supplemental  reserves) expressed as a decimal established by the Board to which the Administrative Agent is  subject,  with  respect to  the  Adjusted  LIBO  Rate or  One-Month  LIBO  Rate,  for  eurocurrency  funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such  reserve percentages shall include those imposed pursuant to such Regulation D.  Eurocurrency  Loans shall be  deemed to constitute  eurocurrency  funding  and  to  be subject  to  such  reserve                                        -28-                                           





 






   requirements  without  benefit  of  or  credit  for  proration,  exemptions  or  offsets  that  may  be  available  from  time  to  time  to any  Lender  under  such  Regulation D  or  any comparable  regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective  date of any change in any reserve percentage.         “Step-Up  Election” has  the  meaning  assigned  to  such  term  in  Section 6.11  of  this  Agreement.           “Step-Up Election Notice” has the meaning assigned to such term in Section 6.11 of this  Agreement.         “Step-Up Period” means the period commencing on the date the U.S. Borrower delivers  a Step-Up Election Notice to the Administrative Agent pursuant to Section 6.11 and ending on  the earlier to occur of (a) the one-year anniversary of such date or (b) the date the U.S. Borrower  delivers a Step-Up Termination Notice to the Administrative Agent pursuant to Section 6.11.         “Step-Up Termination Notice” has the meaning assigned to such term in Section 6.11 of  this Agreement.         “Sterling” or “£” means the lawful currency of the United Kingdom of Great Britain and  Northern Ireland.         “subsidiary” means,  with  respect  to  any  Person  (the “parent”)  at  any  date,  any  corporation,  limited  liability  company,  partnership,  association  or  other  entity  the  accounts of  which would  be  consolidated  with  those of  the  parent  in  the  parent’s  consolidated  financial  statements if such financial statements were prepared in accordance with GAAP as of such date,  as  well  as  any other  corporation,  limited  liability  company,  partnership, association  or  other  entity  (a) of  which  securities  or  other  ownership  interests  representing  more  than  50%  of  the  equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than  50%  of  the  general partnership  interests  are,  as  of  such  date,  owned,  controlled  or  held,  or  (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the  parent or by the parent and one or more subsidiaries of the parent.         “Subsidiary” means any subsidiary of the U.S. Borrower.         “Subsidiary Borrower” means, at any time, each Subsidiary that has been designated as a  Subsidiary  Borrower  by  the U.S. Borrower  pursuant  to  Section 2.20, other  than  a Subsidiary  Borrower that has ceased to be a Subsidiary Borrower as provided in Section 2.20.         “Subsidiary  Borrower  Agreement” means  a  Subsidiary  Borrower  Agreement  substantially in the form of Exhibit B.         “Subsidiary  Borrower  Termination” means a  Subsidiary Borrower  Termination  substantially in the form of Exhibit C.                                         -29-                                           





 






         “Supply  Chain  Accounts  Payable” means  accounts  payable  owed  by  a  Borrower  to  a  supplier,  which  have  been  sold  or  transferred  to  a  financial  institution  under  a  supply  chain  financing or structured accounts payable program.         “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 U.S. Borrower or the Subsidiaries shall be a  Swap Agreement.         “Swingline Borrowing” means a Borrowing of Swingline Loans.         “Swingline Dollar Loan” means a Swingline Loan denominated in Dollars.         “Swingline  Exposure” means,  at  any  time,  the  Dollar  Equivalent  of the  aggregate  principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of  any  Lender  at any time  shall be its  Applicable  Adjusted  Percentage  of  the  total  Swingline  Exposure at such time.         “Swingline  Lender” means  Wells  Fargo,  in  its  capacity  as  lender  of Swingline  Loans  hereunder  and  its  successors  in  such  capacity.   The  Swingline  Lender  may, in  its  discretion,  arrange for one or more Swingline Loans to be made by Affiliates of the Swingline Lender, in  which case  the  term  “Swingline  Lender”  shall  include any  such  Affiliate  with  respect  to  Swingline Loans made by such Affiliate.         “Swingline Loan” means a Loan made pursuant to Section 2.05.         “Swingline  Risk  Participation” means,  with  respect  to  any  Lender  and  any Swingline  Loan  as  of  any  date  of  determination, the  sum  of  (a) such  Lender’s  Applicable  Adjusted  Percentage of such Swingline Loan outstanding at such time plus (b) the aggregate amount of all  Defaulting Lenders’ Applicable Adjusted Percentage of such Swingline Loan outstanding at such  time that have been reallocated to such Lender pursuant to Section 2.24(a)(iv).         “Syndication  Agent” means JP Morgan,  in  its capacity  as  syndication  agent  for the  Lenders hereunder.         “Tangible Net Worth” means, as of any date of determination, the stockholders’ equity of  the U.S. Borrower as of such date minus the U.S. Borrower’s intangible assets as of such date, in  each case determined on a consolidated basis in accordance with GAAP.         “Taxes” means  all  present  or  future  taxes, levies, imposts, duties,  deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any                                        -30-                                           





 






   Governmental  Authority, including  any  interest,  fines, additions  to  tax  or  penalties  applicable  thereto.         “Term  SOFR” means  the  forward-looking  term  rate  based  on  SOFR  that  has  been  selected or recommended by the Relevant Governmental Body.         “Total Lender Risk Participation” means, with respect to any Lender as of any date of  determination,  the  sum  of  (a) such  Lender’s LC  Risk  Participations  in all  Letters of  Credit  outstanding  at  such  time plus (b) such  Lender’s  Swingline  Risk  Participation  in  all  Swingline  Loans outstanding at such time.         “Transactions” means the execution, delivery and performance by the Borrowers of each  Loan  Document,  the  borrowing  of  Loans,  the  use  of  the  proceeds  thereof  and  the  issuance  of  Letters of Credit hereunder.         “Type”, 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.         “Unadjusted  Benchmark Replacement” means  the Benchmark  Replacement  excluding  the Benchmark Replacement Adjustment.         “U.S. Borrower” means Herman Miller, Inc., a Michigan corporation, and its successors.         “U.S. Borrower  Guaranty” means  the  Guarantee,  as  amended,  supplemented  or  otherwise modified from time to time, in the form of Exhibit E, by the U.S. Borrower in favor of  the Lenders and the Administrative Agent.         “U.S.  Tax  Compliance  Certificate” has  the  meaning  assigned  thereto  in  Section 2.17(f)(ii)(B)(3).         “Wells  Fargo” means  Wells  Fargo  Bank,  National  Association, a  national  banking  association, and its successors.         “Wholly-Owned  Subsidiary” means,  as  to  any  Person,  a  subsidiary  all  of  the  Equity  Interests  of  which  (except  directors’  qualifying  Equity  Interests)  are  at  the  time  directly  or  indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.         “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.         “Withholding Agent” means U.S. Borrower and the Administrative Agent.         “Write-Down  and  Conversion  Powers” means,  with  respect  to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time                                        -31-                                           





 






   to  time  under  the  Bail-In  Legislation for  the applicable  EEA  Member  Country,  which  write- down and conversion powers are described in the EU Bail-In Legislation Schedule.      Section 1.02. Classification of Loans and Borrowings.  For purposes of this Agreement,  Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a  “Eurocurrency  Loan”)  or  by  Class  and  Type  (e.g., a “Eurocurrency  Revolving  Loan”).   Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or  by  Type  (e.g.,  a “Eurocurrency  Borrowing”)  or  by  Class  and  Type  (e.g.,  a “Eurocurrency  Revolving Borrowing”).      Section 1.03. Terms Generally.  The definitions of terms herein shall apply equally to the  singular and plural forms of the terms defined.  Whenever the context may require, any pronoun  shall  include  the  corresponding  masculine,  feminine  and  neuter forms.   The  words  “include”,  “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.   The word “will” shall be construed to have the same meaning and effect as the word “shall”.   Unless  the context  requires  otherwise  (a) any  definition  of  or  reference  to  any agreement,  instrument  or  other  document  herein  shall  be  construed  as  referring  to  such  agreement,  instrument  or  other  document  as  from  time to  time  amended,  supplemented  or  otherwise  modified (subject to any restrictions on such amendments, supplements or modifications set forth  herein),  (b) any  reference  herein  to  any  Person  shall  be  construed  to  include  such  Person’s  successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar  import,  shall be construed  to  refer  to  this Agreement  in  its  entirety  and  not  to  any  particular  provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be  construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and  (e) the words “asset” and “property” shall be construed to have the same meaning and effect and  to refer to any and all tangible and intangible assets and properties, including cash, securities,  accounts and contract rights.      Section 1.04. Accounting  Terms;  GAAP; Pro Forma  Treatment.   Unless  otherwise  indicated  in  this  Agreement  or  any  other  Loan  Document,  all  accounting terms  used  in  this  Agreement  or  any  other  Loan  Document  shall  be  construed,  and  all  accounting  and  financial  computations hereunder or thereunder shall be computed, in accordance with GAAP; provided,  however, that for purposes of determining compliance with any covenant, including any financial  covenant, Indebtedness of the U.S. Borrower and any of its Subsidiaries shall be deemed to be  carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825  (and  FASB  ASC  470-20,  if  applicable)  on  financial  liabilities  shall  be  disregarded.   If  (a) the  U.S. Borrower elects to change its accounting practices during the term of this Agreement from  those  used  in  the  preparation  of  the  Financial  Statements  referred  to  in  Section 3.04,  or  (b) GAAP changes during the term of this Agreement such that any covenants contained herein  would  then  be  calculated  in  a materially  different  manner  or  with  materially  different  components, the U.S. Borrower, the Lenders and the Administrative Agent agree to negotiate in  good faith to amend this Agreement in such respects as are necessary to conform those covenants  as  criteria  for  evaluating  the  U.S. Borrower’s  financial  condition  to  substantially  the  same  criteria  as  were  effective  prior  to  such  change  by  the  U.S. Borrower  or  in  GAAP; provided,  however, that, until the U.S. Borrower, the Lenders and the Administrative Agent so amend this  Agreement, all such covenants shall be calculated in accordance with the accounting practices or                                        -32-                                           





 






   GAAP as in effect immediately prior to such change (subject to the proviso in the first sentence  of this Section 1.04).  Notwithstanding the provisions of the previous sentence, the parties hereto  agree  that with  respect  to  financial  results for  periods  ending  prior  to  the  U.S.  Borrower’s  implementation of FASB  ASC  842 (Leases)  (the “Lease  Accounting  Change”),  all  covenants  (including  financial  covenants)  under  this Agreement  shall  continue to  be  calculated  in  accordance with  GAAP  as  in  effect  immediately  prior  to  the implementation of  the  Lease  Accounting  Change,  unless  otherwise  agreed  by  and between the U.S. Borrower  and  the  Administrative Agent.  For purposes of calculating the Leverage Ratio (as used in Section 6.11  and in determining the Applicable Margin) and the Interest Coverage Ratio, any Acquisition or  any sale or other disposition outside the ordinary course of business by the U.S. Borrower or any  of  the  Subsidiaries  of  any  asset  or  group  of  related  assets  in  one  or  a  series of related  transactions,  the  net  proceeds  from  which  exceed  $1,000,000, including  the incurrence  of  any  Indebtedness  and  any  related  financing  or  other  transactions  in  connection  with  any of  the  foregoing, occurring during the period for which such ratios are calculated shall be deemed to  have occurred on the first day of the relevant period for which such ratios were calculated on a  pro  forma basis  acceptable  to  the  Administrative  Agent.  Notwithstanding  anything  to  the  contrary herein, all financial statements delivered hereunder shall be prepared, and all financial  covenants  contained  herein shall  be  calculated,  without  giving  effect  to  any  election under  Statement  of  Financial  Accounting  Standards  159  (or  any  similar  accounting  principle)  permitting a Person to value its financial liabilities at the fair value thereof.      Section 1.05. Foreign Currency Calculations.  (a) For purposes of determining the Dollar  Equivalent  of  any  Advance  denominated in a  Foreign  Currency  or  any  related  amount,  the  Administrative  Agent  shall  determine the  Exchange  Rate  as  of  the  applicable  Exchange  Rate  Date with respect to each Foreign Currency in which any requested or outstanding Advance is  denominated and shall apply such Exchange Rates to determine such amount (in each case after  giving effect to any Advance to be made or repaid on or prior to the applicable date for such  calculation).        (b)  For purposes of any determination under Section 6.01, 6.02, 6.04 or 6.09 or under  Article VII,  all  amounts  incurred,  outstanding  or  proposed  to be  incurred  or outstanding  in  currencies other than Dollars shall be translated into Dollars at the currency exchange rates in  effect on the date of such determination; provided that no Default shall arise as a result of any  limitation set forth in Dollars in Section 6.01 or 6.02 being exceeded solely as a result of changes  in currency exchange rates from those rates applicable at the time or times Indebtedness or Liens  were initially consummated in reliance on the exceptions under such Sections.  For purposes of  any determination under Section 6.04 or 6.09, the amount of each investment, asset disposition  or other applicable transaction denominated in a currency other than Dollars shall be translated  into Dollars at the currency exchange rate in effect on the date such investment, disposition or  other transaction is consummated.  Such currency exchange rates shall be determined in good  faith by the Borrowers.      Section 1.06. Redenomination of Certain Foreign Currencies.  (a) Each obligation of any  party  to this  Agreement  to  make  a  payment  denominated  in  the  national  currency  unit  of  any  member state of the European Union that adopts the Euro as its lawful currency after the Original  Effective Date shall be redenominated into Euro at the time of such adoption (in accordance with                                        -33-                                           





 






   the  EMU  Legislation).   If,  in  relation  to  the  currency  of  any  such  member  state,  the basis of  accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent  with  any  convention  or  practice  in  the  London Interbank  Market  for  the  basis  of  accrual  of  interest  in  respect  of  the  Euro,  such  expressed  basis  shall  be replaced  by  such  convention  or  practice  with effect  from  the  date  on  which  such  member  state  adopts  the  Euro  as  its  lawful  currency; provided that if any Borrowing in the currency of such member state is outstanding  immediately  prior  to  such  date,  such  replacement  shall  take  effect,  with  respect  to  such  Borrowing, at the end of the then current Interest Period.        (b)  Without  prejudice  and  in  addition  to  any  method  of  conversion  or  rounding  prescribed by any EMU Legislation and (i) without limiting the liability of any Borrower for any  amount due under this Agreement and (ii) without increasing any Commitment of any Lender,  all  references  in  this  Agreement  to  minimum  amounts  (or  integral multiples  thereof)  denominated  in  the  national  currency  unit  of  any member state  of the  European  Union  that  adopts the Euro as its lawful currency after the Original Effective Date shall, immediately upon  such  adoption,  be  replaced  by  references  to  such  minimum  amounts  (or  integral  multiples  thereof) as shall be specified herein with respect to Borrowings denominated in Euros.        (c)  Each  provision  of  this  Agreement  shall  be  subject  to  such  reasonable  changes  of  construction  as  the  Administrative  Agent  may  from  time  to  time  specify  to  be  appropriate  to  reflect the adoption of the Euro by any member state of the European Union and any relevant  market conventions or practices relating to the Euro or any other Foreign Currency.      Section 1.07. Divisions.  For all purposes under the Loan Documents, in connection with  any Division: (a) if any asset, right, obligation or liability of any Person becomes the asset, right,  obligation or liability of a different Person, then it shall be deemed to have been transferred from  the original Person to the subsequent Person, and (b) if any new Person comes into existence,  such new Person shall be deemed to have been organized on the first date of its existence by the  holders of its Equity Interests at such time.      Section 1.08. Rates.  The Administrative Agent does not warrant or accept responsibility  for, and shall not have any liability with respect to, the administration, submission or any other  matter  related to any  rate  that  is  an  alternative  or  replacement  for  or  successor  to the “LIBO  Rate” (including, without limitation, any Benchmark Replacement) or the effect of any of the  foregoing, or of any Benchmark Replacement Conforming Changes.                                       ARTICLE II                                                                            THE CREDITS      Section 2.01. Commitments.   Subject  to  the  terms and  conditions  set  forth  herein,  each  Lender agrees to make Revolving Loans denominated in Dollars and Foreign Currencies to the  U.S. Borrower and to Subsidiary Borrowers (other than any Subsidiary Borrower for which an  Ancillary  Commitment has  been  established under  Section 2.22)  from  time  to  time  during the  Availability Period in an aggregate principal amount that will not result in any of following:                                        -34-                                           





 






               (a)   the  sum  of  (i) the  outstanding  principal  amount  of  such  Lender’s        Revolving  Loans and  (ii) such  Lender’s  Total  Lender Risk  Participation  exceeding        (x) such Lender’s Commitment minus (y) such Lender’s Ancillary Commitments;               (b)   the Aggregate Revolving Credit Exposure exceeding (i) (x) the Aggregate        Commitments minus (y) the Aggregate Ancillary Commitments, or (ii) at any time there        is a Defaulting Lender and the Senior Notes Documents prohibit the U.S. Borrower from        Cash Collateralizing the Obligations of such Defaulting Lender, an amount equal to the        Aggregate  Commitments, minus the  Total  Lender  Risk Participation  of  the Defaulting        Lenders; and               (c)   the  Dollar  Equivalent  of  the  aggregate  amount  of all  Revolving  Loans        denominated in any Foreign Currency exceeding $100,000,000.     Within  the  foregoing  limits  and  subject  to  the  terms  and  conditions  set  forth herein, the  Borrowers may borrow, prepay and reborrow Revolving Loans.      Section 2.02. Loans and Borrowings.  (a) Each Revolving Loan shall be made as part of a  Borrowing  consisting  of Loans  of  the  same Type  made  by  the Lenders  ratably  in  accordance  with their respective Applicable Adjusted Percentage on the date such Loans are made hereunder  (or, in the case of Swingline Loans, in accordance with Section 2.05).  Each Ancillary Loan shall  be made as part of a Borrowing consisting of Loans of the same Type made by the applicable  Ancillary Lenders with an Ancillary Commitment for such Ancillary Loan ratably in accordance  with such Ancillary Commitments on the date such Ancillary Loans and otherwise in accordance  with the applicable Ancillary Facility Document.  The failure of any Lender to make any Loan  required  to  be  made  by  it  shall  not  relieve  any  other  Lender  of  its  obligations  hereunder;  provided that the Commitments and the Ancillary Commitments of the Lenders are several and  no Lender shall be responsible for any other Lender’s failure to make Loans as required.        (b)  Subject to Section 2.14, (i) each Revolving Borrowing denominated in Dollars shall  be  comprised  entirely  of  ABR  Loans  or  Eurocurrency Loans as  the applicable  Borrower  may  request  in  accordance  herewith, and  (ii) each  Revolving  Borrowing  denominated  in  a  Foreign  Currency and each Borrowing of Ancillary Loans shall be comprised entirely of Eurocurrency  Loans.   Each  Swingline Borrowing  shall  be  comprised of  the Types  of Loans  set  forth  in  Section 2.05.   Each Lender  at  its  option  may  make  any  ABR  Loan  or  Eurocurrency  Loan  by  causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided  that  any exercise  of  such  option  shall not  affect  the obligation  of  the  applicable  Borrower  to  repay such Loan in accordance with the terms of this Agreement and such Lender shall not be  entitled to any amounts payable under Section 2.15, 2.17 or 2.21 solely in respect of increased  costs resulting from such exercise.        (c)  Each Borrowing shall be in an aggregate amount that is an integral multiple of the  applicable Borrowing Multiple and not less than the applicable Borrowing Minimum, provided  that  an  ABR  Revolving  Borrowing  may  be in an  aggregate  amount  that  is  equal  to  the  entire  unused balance of the Commitments or that is required to finance the reimbursement of an LC  Disbursement as contemplated by Section 2.06(e).  Borrowings of more than one Type may be                                        -35-                                           





 






   outstanding at the same time; provided that there shall not at any time be more than a total of ten  Eurocurrency Borrowings outstanding.        (d)  Each Lender may, at its option, make any Loan available to any Foreign Subsidiary  Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such  Loan; provided,  that  (i) any  exercise  of  such  option  shall  not  affect  the  obligation  of  such  Foreign  Subsidiary  Borrower  to  repay  such  Loan  in  accordance  with  the  terms  of  this  Agreement, and (ii) for all purposes of voting or consenting with respect to (x) any amendment,  supplementation or modification of any Loan Document, (y) any waiver of any requirements of  any Loan Document or any Default or Event of Default and its consequences, or (z) any other  matter as to which a Lender may vote or consent related to the Loan Documents, such Lender  shall so vote or consent, not such foreign or domestic branch or Affiliate of such Lender.        (e)  Notwithstanding  any  other  provision  of  this  Agreement,  no  Borrower  shall  be  entitled  to  request, or to  elect  to  convert  or  continue,  any  Borrowing  if  the  Interest  Period  requested with respect thereto would end after the Maturity Date.      Section 2.03. Requests  for  Revolving  Borrowings.   To request  a  Revolving  Borrowing,  the applicable Borrower shall notify the Applicable Agent of such request by telephone (a) in the  case of a Eurocurrency Borrowing, not later than 2:00 p.m., Local Time, three Business Days  before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than  10:00 a.m., Local Time, on the date of the proposed Borrowing.  Notwithstanding the foregoing,  in the case of a Loan denominated in a Foreign Currency, the applicable Borrower shall notify  the Applicable  Agent  of  such  request  by  telephone  not  later  than  2:00 p.m.,  Local  Time,  four  Business  Days  before  the  date  of  the  proposed  Borrowing.   Each  such  telephonic  Borrowing  Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the  Applicable Agent of a written Borrowing Request in a form approved by the Applicable Agent  and signed by the applicable Borrower.  Each such telephonic and written Borrowing Request  shall specify the following information in compliance with Section 2.02:                (i)  the Borrower requesting such Borrowing;               (ii)  in the case of a Revolving Borrowing in a Foreign Currency requested by        a  Subsidiary  Borrower,  the  Foreign  Currency  in which  such  Borrowing  is  to  be        denominated;               (iii) the aggregate amount of the requested Borrowing (expressed in Dollars or        the applicable Foreign Currency);               (iv)  the date of such Borrowing, which shall be a Business Day;               (v)   in  the  case  of  a  Borrowing  denominated  in  Dollars,  whether  such        Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;                                         -36-                                           





 






               (vi)  in the case of a Eurocurrency Borrowing, the initial Interest Period to be        applicable  thereto,  which  shall  be  a  period  contemplated  by  the  definition of  the  term        “Interest Period”; and              (vii)  the  location  and  number  of the  applicable Borrower’s  account  to  which        funds are to be disbursed.         If  no  election  as  to  the  Type  of  Revolving  Borrowing  is  specified,  then  the  requested  Revolving  Borrowing  shall  be  an ABR  Borrowing,  unless  such  Revolving Borrowing  is  denominated in  a Foreign  Currency,  in  which  case  such  Revolving  Borrowing  shall  be  a  Eurocurrency  Borrowing.   If  no  Interest  Period  is  specified  with  respect  to  any  requested  Eurocurrency  Borrowing,  then  the  applicable  Borrower  shall  be  deemed to  have  selected an  Interest Period of one month’s duration.  Promptly following receipt of a Borrowing Request in  accordance  with  this  Section,  the  Applicable  Agent  shall  advise  each  Lender  of  the  details  thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.   Requests for Ancillary Loans shall be made in accordance with the applicable Ancillary Facility  Document.      Section 2.04. [Reserved].      Section 2.05. Swingline Loans.  (a) Subject to the terms and conditions set forth herein,  the Swingline Lender may make Swingline Loans in Dollars to the U.S. Borrower from time to  time  during  the  Availability  Period,  in  an  aggregate  principal  amount at any  time  outstanding  that  will  not  result  in  (i) the aggregate  principal  amount  of  outstanding  Swingline  Loans  exceeding  $30,000,000,  (ii) the  (A) Aggregate  Revolving  Credit  Exposure  exceeding  (B) the  Aggregate Commitments minus the Aggregate Ancillary Commitments, (iii) the Aggregate Total  Exposure exceeding the Aggregate Commitments or (iv) the sum of (I) the outstanding principal  amount of any Lender’s Revolving Loans and (II) such Lender’s Total Lender Risk Participation  exceeding such Lender’s Commitment.  Within the foregoing limits and subject to the terms and  conditions  set  forth  herein,  the  U.S. Borrower  may  borrow,  prepay  and  reborrow  Swingline  Loans.        (b)  To request a Swingline Borrowing, the U.S. Borrower shall notify the Applicable  Agent of such request by telephone (confirmed in a writing acceptable to the Applicable Agent if  requested  by  the  Applicable  Agent),  not  later  than  12:00  noon,  Local  Time,  on  the  day  of  a  proposed  Swingline  Loan.  Each  such  notice  shall  be  irrevocable and shall  specify (i) the  requested date (which shall be a Business Day) and (ii) the amount of the requested Swingline  Borrowing.   The  Applicable  Agent  shall  promptly  advise  the  Swingline  Lender  of  any  such  notice  received  from  the  U.S. Borrower.   The  Swingline  Lender and the  U.S. Borrower shall  agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement  cannot be reached prior to 2:00 p.m., Local Time, on the day of such proposed Swingline Loan,  then such Swingline Loan shall bear interest at the One-Month LIBO Rate plus the Applicable  Margin.  Any funding of a Swingline Loan by the Swingline Lender shall be made in accordance  with  Section 2.02(a)  on  the  proposed  date  thereof  by  wire  transfer  of  immediately  available  funds by 3:00 p.m., Local Time, to the account of the Applicable Agent most recently designated  by it for such purpose by notice to the Swingline Lender.  The Applicable Agent will make such                                        -37-                                           





 






   Swingline Loan available to the U.S. Borrower by promptly crediting the amounts so received, in  like funds, to the general deposit account of the U.S. Borrower that has been identified by the  U.S.  Borrower  to  the  Applicable  Agent  (or,  in  the  case  of  a  Swingline  Borrowing  made  to  finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance  to the applicable Issuing Bank).        (c)  The Swingline Lender may by written notice given to the Applicable Agent not later  than 1:00 p.m., Local Time, on any Business Day require the Lenders to acquire participations  on such Business Day in all or a portion of the outstanding Swingline Loans.  Such notice shall  specify  the  aggregate  amount  of  such  Swingline  Loans  in  which  the  Lenders  will  participate.   Promptly  upon  receipt  of  such  notice,  the  Applicable  Agent  will  give  notice thereof  to each  Lender, specifying in such notice such Lender’s Swingline Risk Participation with respect to the  Swingline Loans then outstanding.  Each Lender hereby absolutely and unconditionally agrees,  upon receipt of notice as provided above, to pay to the Applicable Agent, for the account of the  Swingline  Lender, such  Lender’s  Swingline  Risk  Participation  with  respect  to  the  Swingline  Loans then outstanding.  Each Lender acknowledges and agrees that its respective obligation to  acquire  participations in  Swingline  Loans  pursuant  to  this  paragraph  is  absolute  and  unconditional  and  shall  not  be  affected  by any  circumstance  whatsoever,  including  the  occurrence and continuance of a Default or reduction or termination of the Commitments, and  that each such payment shall be made without any offset, abatement, withholding or reduction  whatsoever.  Each Lender shall comply with its obligation under this paragraph by wire transfer  of immediately available funds, in the same manner as provided in Section 2.07 with respect to  Loans made  by such  Lender  (and  Section 2.07  shall  apply,  mutatis  mutandis,  to  the  payment  obligations  of  the  Lenders),  and  the  Applicable  Agent  shall  promptly  pay  to  the  Swingline  Lender the amounts so received by it from the Lenders.  The Applicable Agent shall notify the  U.S. Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph  (c), and thereafter payments in respect of such Swingline Loan shall be made to the Applicable  Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from  the U.S. Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan  after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be  promptly remitted to the Applicable Agent; any such amounts received by the Applicable Agent  shall be promptly remitted by the Applicable Agent to the Lenders that shall have made their  payments pursuant to this paragraph and to such Swingline Lender, as their interests may appear;  provided that any such payment so remitted shall be repaid to such Swingline Lender or to the  Applicable Agent, as applicable, if and to the extent such payment is required to be refunded to  the U.S. Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant  to this paragraph shall not relieve the U.S. Borrower of any default in the payment thereof.        (d)  Notwithstanding  anything  herein  to  the  contrary,  if  there  at  any  time  exists  a  Defaulting  Lender, unless  such Lender’s  Fronting Exposure has  been  reallocated  to  other  Lenders in accordance with Section 2.24(a), before making any Swingline Loans, the Swingline  Lender may condition the provision of such Swingline Loans on its entering into arrangements  satisfactory to the Swingline Lender with the Borrower or such Defaulting Lender to eliminate  the Swingline Lender’s Fronting Exposure.                                         -38-                                           





 






      Section 2.06. Letters of Credit.  (a) General.  Subject to the terms and conditions set forth  herein, the U.S. Borrower may request the issuance of Letters of Credit denominated in Dollars  and Foreign Currencies for its own account or the account of a Subsidiary, in a form reasonably  acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time  during  the  Availability  Period.   In  the  event  of  any  inconsistency  between  the  terms  and  conditions  of  this  Agreement  and  the  terms  and  conditions  of  any  form  of  letter  of  credit  application  or other agreement submitted by the  U.S. Borrower  to,  or  entered  into  by  the  U.S. Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of  this Agreement shall control.        (b)  Notice  of Issuance,  Amendment,  Renewal,  Extension;  Certain  Conditions.   To  request  the  issuance  of  a  Letter  of  Credit  (or  the  amendment,  renewal  or  extension  of  an  outstanding Letter of Credit), the U.S. Borrower shall hand deliver or telecopy (or transmit by  electronic  communication,  if  arrangements  for  doing  so  have been  approved by  the Issuing  Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested  date of issuance, amendment, renewal or extension, it being understood and agreed that the form  of  any  Foreign  Currency  Letter  of  Credit  requested to  be issued  for  the  account  of  the  U.S.  Borrower  or any  Subsidiary  must  be  agreed  upon  between  the  U.S.  Borrower  and  the  Issuing  Bank at least three Business Days prior to the issuance thereof) a notice requesting the issuance  of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and  specifying  the  date  of issuance,  amendment,  renewal  or  extension  (which  shall  be  a  Business  Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c)  of this Section), the amount of such Letter of Credit, the currency applicable thereto, the name  and address of the account party thereof (which shall be the U.S. Borrower or a Subsidiary, and  if a Subsidiary then the U.S. Borrower and such Subsidiary shall be jointly and severally liable  with  respect  to  all  Obligations  relating  to  such  Letter  of  Credit),  the  name  and  address  of  the  beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or  extend  such Letter of Credit.  If  requested  by  the  Issuing  Bank, the  U.S. Borrower  also  shall  submit a letter of credit application on the Issuing Bank’s standard form in connection with any  request for a Letter of Credit.  A Letter of Credit shall be issued, amended, renewed or extended  only if  (and  upon  issuance,  amendment,  renewal  or  extension  of  each  Letter  of  Credit the  U.S. Borrower  shall  be  deemed  to  represent  and  warrant  that),  after  giving  effect  to  such  issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $40,000,000,  (ii) the  (A) Aggregate  Revolving  Credit  Exposure  shall  not  exceed  (B) the  Aggregate  Commitments minus the Aggregate Ancillary Commitments and (iii) the sum of the Aggregate  Total  Exposure  shall  not  exceed  the  Aggregate Commitments.  Notwithstanding  the  Issuing  Bank’s  agreements  in  this  Section 2.06(b),  the  Issuing  Bank  shall  not  be  obligated  to  issue,  amend, renew or extend any Letter of Credit if any Lender is at such time a Defaulting Lender  hereunder,  unless  such  Lender’s  Fronting  Exposure  has been  reallocated  to  other Lenders  in  accordance with Section 2.24(a) or the Issuing Bank has entered into arrangements satisfactory  to the Issuing Bank with the U.S. Borrower or such Defaulting Lender to eliminate the Issuing  Bank’s Fronting Exposure.        (c)  Expiration  Date.  Each  Letter  of  Credit  shall  expire  at  or  prior  to  the  close of  business on the earlier of (i) the date one year after the date of the issuance of such Letter of  Credit (provided that any Letter of Credit may provide for additional one year renewals thereof                                        -39-                                           





 






   subject to the approval of the Administrative Agent prior to the time of such renewal) and (ii) the  date that is ten Business Days prior to the Maturity Date; provided that, to the extent permitted  by  the  Senior  Notes  Documents (which  the  Lenders  acknowledge  and agree  is  not currently  permitted), any Letter of Credit may be extended until up to the twelve month anniversary of the  Maturity Date if the U.S. Borrower has, at least ten Business Days prior to the Maturity Date,  delivered Cash Collateral with respect to such Letter of Credit to the Issuing Bank in an amount  equal to 103% of the principal amount of such Letter of Credit.        (d)  Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter  of Credit increasing the amount thereof) and without any further action on the part of the Issuing  Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby  acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s  Applicable Adjusted Percentage of the aggregate amount available to be drawn under such Letter  of Credit.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely  and  unconditionally  agrees  to  pay  to  the Administrative Agent,  for  the  account  of the  Issuing  Bank,  such  Lender’s  Applicable  Adjusted Percentage  of  each  LC  Disbursement  made  by  the  Issuing  Bank  and  not  reimbursed  by  the  U.S. Borrower  on  the  date  due  as  provided  in  paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the  U.S. Borrower  for  any  reason.  Each  Lender  acknowledges  and  agrees  that  its  obligation  to  acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and  unconditional  and  shall  not  be  affected  by  any circumstance whatsoever,  including  any  amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a  Default or reduction or termination of the Commitments, and that each such payment shall be  made without any offset, abatement, withholding or reduction whatsoever.        (e)  Reimbursement.  If the Issuing Bank shall make any LC Disbursement in respect of  a Letter of Credit, the U.S. Borrower shall reimburse such LC Disbursement by paying to the  Administrative Agent an amount equal to the Dollar Equivalent of such LC Disbursement (or,  with respect to any Foreign Currency Letter of Credit, if the Issuing Bank shall so elect in its sole  discretion  by  notice  to  the  U.S.  Borrower,  in  such Foreign  Currency  which  was  paid  by  the  Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement)  not later than 12:00 noon, Local Time, on the date that such LC Disbursement is made, if the  U.S. Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., Local  Time, on such date, or, if such notice has not been received by the U.S. Borrower prior to such  time on such date, then not later than 12:00 noon, Local Time, on (i) the Business Day that the  U.S. Borrower receives such notice, if such notice is received prior to 10:00 a.m., Local Time, on  the day of receipt, or (ii) the Business Day immediately following the day that the U.S. Borrower  receives  such  notice,  if  such  notice  is not  received  prior to  such  time  on  the  day  of receipt;  provided that, to the extent such LC Disbursement was made in Dollars, the U.S. Borrower may,  subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03  or 2.05 that such payment be financed with an ABR Revolving Borrowing or Swingline Loan in  an equivalent amount and, to the extent so financed, the U.S. Borrower’s obligation to make such  payment  shall  be  discharged  and  replaced by  the  resulting  ABR  Revolving  Borrowing  or  Swingline Loan.  If the U.S. Borrower fails to make such payment when due, the Administrative  Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from  the  U.S. Borrower  in  respect  thereof  and  such  Lender’s  LC  Risk Participation  with respect                                        -40-                                           





 






   thereto.  Promptly following receipt of such notice, each Lender shall pay to the Administrative  Agent its LC Risk Participation with respect to the payment then due from the U.S. Borrower, in  the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and  Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the  Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from  the Lenders.  Promptly following receipt by the Administrative Agent of any payment from the  U.S. Borrower  pursuant  to  this  paragraph, the  Administrative  Agent  shall  distribute  such  payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this  paragraph  to  reimburse  the  Issuing Bank,  then  to  such  Lenders  and  the  Issuing  Bank  as  their  interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse  the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a  Swingline  Loan  as  contemplated  above)  shall  not  constitute  a  Loan  and  shall  not  relieve  the  U.S. Borrower of its obligation to reimburse such LC Disbursement.        (f)  Obligations  Absolute.  The  U.S. Borrower’s  obligation  to  reimburse  LC  Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and  irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under  any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability  of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other  document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any  respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the  Issuing Bank 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  (iv) 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  U.S. Borrower’s obligations hereunder.  None of the Administrative Agent, the Lenders nor the  Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason  of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure  to make  any  payment  thereunder  (irrespective  of  any  of  the  circumstances  referred to  in  the  preceding  sentence),  or  any  error,  omission,  interruption,  loss  or  delay  in  transmission  or  delivery of any draft, notice or other communication under or relating to any Letter of Credit  (including any document required to make a drawing thereunder), any error in interpretation of  technical terms or any consequence arising from causes beyond the control of the Issuing Bank;  provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the  U.S. Borrower to the extent of any direct damages (as opposed to consequential damages, claims  in respect of which are hereby waived by the U.S. Borrower to the extent permitted by applicable  law) suffered by the U.S. Borrower that are caused by the Issuing Bank’s failure to exercise care  when determining whether drafts and other documents presented under a Letter of Credit comply  with  the  terms  thereof.   The  parties  hereto  expressly  agree  that,  in the  absence  of gross  negligence  or  willful  misconduct  on  the  part  of  the  Issuing  Bank  (as  finally  determined  by  a  court of competent jurisdiction), the Issuing Bank 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  Bank  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                                        -41-                                           





 






   and make payment upon such documents if such documents are not in strict compliance with the  terms of such Letter of Credit.        (g)  Disbursement Procedures.  The Issuing Bank shall, promptly following its receipt  thereof, examine all documents purporting to represent a demand for payment under a Letter of  Credit.  The Issuing Bank shall promptly notify the Administrative Agent and the U.S. Borrower  by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank  has made or will make an LC Disbursement thereunder; provided that any failure to give or delay  in  giving  such notice  shall  not  relieve  the  U.S. Borrower  of  its  obligation  to  reimburse  the  Issuing Bank and the Lenders with respect to any such LC Disbursement.        (h)  Interim Interest.  If the Issuing Bank shall make any LC Disbursement, then, unless  the U.S. Borrower shall  reimburse such LC  Disbursement  in  full  on  the  date such  LC  Disbursement  is  made,  the  unpaid  amount  thereof  shall  bear  interest,  for  each  day  from  and  including  the  date  such  LC  Disbursement  is  made to  but  excluding  the  date  that  the  U.S. Borrower reimburses such LC Disbursement, at the rate per annum then applicable to (i) if  such  LC  Disbursement  is  denominated  in  Dollars,  ABR  Revolving  Loans,  and  (ii) if such  LC  Disbursement  is  denominated  in  a  Foreign  Currency,  the  rate  reasonably  determined  by  the  Applicable Agent to be the cost to it of funding such amount; provided that, if the U.S. Borrower  fails  to  reimburse  such  LC  Disbursement  when  due  pursuant  to  paragraph (e)  of  this  Section,  then  Section 2.13(d)  shall  apply.   Interest  accrued pursuant  to  this paragraph  shall  be for  the  account of the Issuing Bank, except that interest accrued on and after the date of payment by any  Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the  account of such Lender to the extent of such payment.        (i)  Replacement of the Issuing Bank.  The Issuing Bank may be replaced at any time by  written  agreement  among  the  U.S. Borrower,  the  Administrative  Agent,  the  replaced  Issuing  Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any  such replacement of the Issuing Bank.  At the time any such replacement shall become effective,  the U.S. Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank  pursuant to Section 2.12(b).  From and after the effective date of any such replacement, (i) the  successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this  Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to  the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing  Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the  replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto  and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement  with respect to Letters of Credit issued by it prior to such replacement, but shall not be required  to issue additional Letters of Credit.        (j)  Cash  Collateralization.  (i) Upon  the  request  of  the  Administrative  Agent,  to  the  extent permitted by the Senior Notes Documents, (A) if the Issuing Bank has honored any full or  partial  drawing  request  under  any Letter  of  Credit and  such  drawing  has  resulted  in  an  LC  Disbursement  which  has  not been  reimbursed  on  the  date  when  made  or refinanced  as  a  Revolving Borrowing, or (B) if, as of the day that is thirty days prior to the Maturity Date (or, if  such day is not a Business Day, the next preceding Business Day), any Letter of Credit may for                                        -42-                                           





 






   any reason  remain  outstanding  and  partially or  wholly  undrawn,  the  U.S. Borrower  shall  immediately Cash Collateralize the Obligations in an amount equal to 103% of the LC Exposure  related to such Letter of Credit.  To the extent permitted by the Senior Notes Documents, the  U.S. Borrower hereby grants the Administrative Agent, for the benefit of the Issuing Bank and  the Lenders, a Lien on all such cash and deposit account balances described in the definition of  “Cash Collateral” as security for the Obligations.  The Lien held by the Administrative Agent in  such Cash Collateral to secure the Obligations shall be released upon satisfaction of each of the  following  conditions:  (1) no  Letters  of  Credit  shall be outstanding,  (2) all  LC  Exposure  shall  have  been  repaid in  full  and  (3) no  Default  shall  have  occurred  and  be  continuing.   Cash  Collateral shall be maintained in blocked deposit accounts at Wells Fargo.  Such accounts must  be subject to control agreements pursuant to which the Administrative Agent has “control,” as  such term is used in the Uniform Commercial Code, sufficient to perfect on a first priority basis a  security interest in such Cash Collateral.  Upon the drawing of any Letter of Credit for which  funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under  applicable Requirements of Law, to reimburse the Issuing Bank.        (ii) If any Event of Default shall occur and be continuing, on the Business Day that the  U.S. Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the  maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than  50%  of  the  total  LC  Exposure)  demanding Cash Collateral  pursuant to this  clause (ii),  the  U.S. Borrower shall Cash Collateralize the Obligations in an amount equal to the LC Exposure  as of such date plus any accrued and unpaid interest thereon; provided that the obligation to Cash  Collateralize such Obligations shall  become effective  immediately,  without  demand  or other  notice of  any  kind,  upon  the  occurrence  of  any Event  of  Default  with  respect  to  the  U.S. Borrower described in clause (h) or (i) of Article VII.  The U.S. Borrower hereby grants to  the Administrative Agent, for the benefit of the Issuing Bank and the Lenders, a security interest  in all such Cash Collateral and all proceeds of the foregoing.  If at any time the Administrative  Agent determines that any funds held as Cash Collateral are subject to any right or claim of any  Person other than the Administrative Agent or that the total amount of such funds is less than the  LC Exposure as of such date plus any accrued and unpaid interest thereon, the U.S. Borrower  will, promptly upon demand by the Administrative Agent, pay to the Administrative Agent, as  additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) the LC  Exposure as of such date plus any accrued and unpaid interest thereon over (y) the total amount  of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free  and clear of any such right and claim.  The Lien held by the Administrative Agent in such Cash  Collateral to secure the Obligations shall be released within three Business Days after all Events  of Default have been cured or waived.        (k)  Additional  Issuing  Banks.  From  time  to time,  the  Administrative  Agent  may  designate other Lenders (in addition to Wells Fargo) that agree (in their sole discretion) to act in  such capacity and are satisfactory to the Administrative Agent and the U.S. Borrower as Issuing  Banks.   Each  such  additional  Issuing  Bank  shall  execute  such  agreements  requested  by  the  Administrative  Agent  and  shall  thereafter  be  an  Issuing  Bank  hereunder for  all  purposes,  provided that any  such additional  Issuing  Bank  shall  only  issue  such  Letters  of  Credit  as  approved by the Administrative Agent.                                        -43-                                           





 






        (l)  Reporting.  Unless otherwise requested by the Administrative Agent, each Issuing  Bank shall report in writing to the Administrative Agent (i) on the first Business Day of each  week and the first Business Day of each fiscal quarter, the aggregate face amount of Letters of  Credit  issued  by  it  and  outstanding  as  of  the last  Business  Day  of  the  preceding  week  or the  preceding fiscal quarter,  as  applicable,  (ii) on  or  prior  to  each  Business Day  on  which  such  Issuing  Bank  expects  to  issue,  amend,  renew  or  extend  any  Letter  of  Credit,  the  date  of  such  issuance,  amendment,  renewal  or  extension,  and  the  aggregate face amount  of the Letters  of  Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to  such  issuance,  amendment,  renewal  or  extension  occurred  (and  whether  the  amount  thereof  changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement,  the  date  of  such  LC  Disbursement  and the  amount  of  such  LC  Disbursement  and (iv) on  any  other Business Day, such other information as the Administrative Agent shall reasonably request.   Each  report  from  each Issuing  Bank  with respect to any  Letter  of  Credit  issued  by  it  shall  indicate whether such Letter of Credit constitutes a Dollar Letter of Credit or a Foreign Currency  Letter of Credit.       (m)   Existing Letters of Credit.  (i) All existing letters of credit issued under the Existing  Agreement or deemed issued under the Existing Agreement, and (ii) all other existing letters of  credit and bank guarantees, in each case to the extent listed on Schedule 2.06 (collectively, the  “Existing Letters of Credit”), shall as of the Restatement Effective Date be deemed “Letters of  Credit” issued under this Agreement and shall be subject to the terms of this Agreement.       Section 2.07.   Funding of Borrowings.  (a) Each Lender shall make each Loan to be made  by it hereunder on the proposed date thereof by wire transfer of immediately available funds by  12:00 noon, Local Time, to the account of the Applicable Agent most recently designated by it  for  such  purpose  by  notice to  the  Lenders; provided that Swingline  Loans  shall  be  made  as  provided  in  Section 2.05.   The  Applicable  Agent  will  make  such  Loans  available  to  the  applicable Borrower by promptly crediting the amounts so received, in like funds, to an account  of the applicable Borrower that has been identified by the U.S. Borrower to the Applicable Agent  (i) in such location determined by the Administrative Agent, in the case of Loans denominated in  Dollars,  or  (ii) in  London,  in  the case  of  Loans  denominated  in  a  Foreign  Currency  and  designated by the applicable Borrower in the applicable Borrowing Request; provided that ABR  Revolving  Loans and  Swingline  Dollar  Loans  made  to  finance  the  reimbursement  of  a  LC  Disbursement  and  reimbursements  as  provided  in  Section 2.06(e) shall be  remitted by  the  Administrative Agent to the applicable Issuing Bank.        (b)  Unless the Applicable Agent shall have received notice from a Lender prior to the  proposed  date  of  any  Borrowing  that  such  Lender  will not  make  available  to  the  Applicable  Agent such  Lender’s  share of such  Borrowing, the  Applicable  Agent  may  assume  that  such  Lender  has  made  such  share  available on  such  date  in  accordance  with  paragraph (a)  of  this  Section and may, in reliance upon such assumption, make available to the applicable Borrower a  corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable  Borrowing  available  to  the  Applicable  Agent,  then  the  applicable  Lender  and  the  applicable  Borrower  severally  agree  to  pay  to  the  Applicable Agent  forthwith  on  demand  (without  duplication) such corresponding amount with interest thereon, for each day from and including  the date such amount is made available to the applicable Borrower to but excluding the date of                                        -44-                                           





 






   payment to the Applicable Agent, at (i) in the case of a payment to be made by such Lender,  (x) the greater of the Federal Funds Effective Rate and a rate determined by the Administrative  Agent  in  accordance  with  banking  industry  rules  on  interbank compensation  (in  the  case  of  a  Borrowing  denominated in Dollars)  or (y) the  rate  reasonably  determined  by  the Applicable  Agent to be the cost to it of funding such amount (in the case of a Borrowing denominated in a  Foreign Currency) or (ii) in the case of a payment to be made by the applicable Borrower, the  interest rate applicable to ABR Loans (in the case of a Borrowing denominated in Dollars) or the  rate reasonably determined by the Applicable Agent to be the cost to it of funding such amount  (in  the  case  of  a  Borrowing  denominated  in  a  Foreign Currency).  If  the  Borrower  and such  Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,  the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid  by the Borrower for such period. If such Lender pays such amount to the Applicable Agent, then  such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by  the  Borrower pursuant  to  this  Section 2.07(b) shall  be  without  prejudice  to  any  claim  the  Borrower  may  have  against a  Lender  that  shall have  failed  to  make a payment  to  the  Administrative Agent, as and when required under this Section 2.07.       Section 2.08.   Interest  Elections.   (a) Each  Borrowing  initially  shall  be of the  Type  specified  in  the  applicable  Borrowing  Request and,  in  the  case  of  a  Eurocurrency  Borrowing,  shall  have  an  initial  Interest  Period  as  specified  in  such  Borrowing  Request.   Thereafter,  the  applicable  Borrower  may  elect  to  convert  such Borrowing to  a different  Type, in  the  case  of  Borrowings denominated in  Dollars,  or  to  continue  such  Borrowing  and,  in  the  case  of  a  Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The  applicable Borrower may elect different options with respect to different portions of the affected  Borrowing,  in  which  case  each  such portion  shall  be  allocated  ratably  among  the  Lenders  holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall  be considered a separate Borrowing.  This Section shall not apply to Borrowings of Swingline  Loans, which may not be converted or continued.        (b)  To make an election pursuant to this Section, the applicable Borrower shall notify  the Applicable Agent of such election by telephone by the time that a Borrowing Request would  be required under Section 2.03 if such Borrower were requesting a Borrowing of the Type and  denominated in the Foreign Currency resulting from such election to be made on the effective  date of such election.  Each such telephonic Interest Election Request shall be irrevocable and  shall be confirmed promptly by hand delivery or telecopy to the Applicable Agent of a written  Interest  Election  Request  in  a  form  approved  by  the  Applicable  Agent and signed by the  applicable Borrower.        (c)  Each  telephonic  and  written  Interest  Election  Request  shall  specify  the  following  information in compliance with Section 2.02:                (i)  the  Borrowing  to  which  such Interest  Election  Request  applies  and,  if        different options are being elected with respect to different portions thereof, the portions        thereof to be allocated to each resulting Borrowing (in which case the information to be        specified  pursuant  to  clauses (iii)  and  (iv)  below  shall  be  specified for each  resulting        Borrowing);                                        -45-                                           





 






               (ii)  the effective date of the election made pursuant to such Interest Election        Request, which shall be a Business Day;               (iii) whether  the  resulting  Borrowing  is  to  be  an  ABR  Borrowing or  a        Eurocurrency  Borrowing; provided that the  resulting Borrowing is  required  to  be  a        Eurocurrency Borrowing in the case of a Borrowing denominated in a Foreign Currency;        and               (iv)  if  the  resulting  Borrowing  is  a  Eurocurrency  Borrowing,  the  Interest        Period to be applicable thereto after giving effect to such election, which shall be a period        contemplated by the definition of the term “Interest Period.”   If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an  Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period  of one month’s duration.        (d)  Promptly  following  receipt  of  an  Interest  Election  Request,  the  Applicable  Agent  shall advise each Lender to which such Interest Election Request relates of the details thereof  and of such Lender’s portion of each resulting Borrowing.        (e)  If the applicable Borrower fails to deliver a timely Interest Election Request with  respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto,  then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such  Borrowing shall be converted to an ABR Borrowing (unless such Borrowing is denominated in a  Foreign  Currency,  in  which  case  such  Borrowing  shall  be  continued  as  a  Eurocurrency  Borrowing with an Interest Period of one month’s duration commencing on the last day of such  Interest  Period).   Notwithstanding  any  contrary  provision  hereof,  if  an  Event  of  Default  has  occurred  and  is  continuing  and  the  Administrative  Agent,  at  the written  request  (including  a  request through electronic means) of the Required Lenders, so notifies the applicable Borrower,  then,  so  long  as  an  Event  of  Default  is  continuing  (i) no  outstanding  Borrowing  may  be  converted  to  or  continued  as  a  Eurocurrency Borrowing,  (ii) unless  repaid,  each Eurocurrency  Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the  Interest  Period  applicable  thereto  and  (iii) unless  repaid,  each  Eurocurrency Borrowing  denominated  in  a  Foreign  Currency shall  be continued as  a Eurocurrency  Borrowing  with  an  Interest Period of one month’s duration.      Section 2.09. Termination  and  Reduction  of  Commitments.   (a) Unless  previously  terminated or extended pursuant this section, the Commitments shall terminate on the Maturity  Date.        (b)  The  U.S. Borrower may  at  any  time  terminate,  or  from  time  to  time  reduce,  the  Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is  an integral  multiple  of  $10,000,000  and  not  less than  $10,000,000  and  (ii) the  U.S. Borrower  shall  not  terminate  or  reduce  the  Commitments  if,  after  giving  effect  to  any  concurrent  prepayment of the Loans in accordance with Section 2.11, the Aggregate Total Exposure would  exceed the Aggregate Commitments.                                        -46-                                           





 






        (c)  The  U.S. Borrower  shall  notify  the  Administrative  Agent  of  any  election  to  terminate or reduce the Commitments under paragraph (b) of this Section at least three Business  Days prior to the effective date of such termination or reduction, specifying such election and the  effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall  advise the Lenders of the contents thereof.  Each notice delivered by the U.S. Borrower pursuant  to this Section shall be irrevocable; provided that a notice of termination of the Commitments  delivered by the U.S. Borrower may state that such notice is conditioned upon the effectiveness  of other credit facilities, in which case such notice may be revoked by the U.S. Borrower (by  notice to the Administrative Agent on or prior to the specified effective date) if such condition is  not  satisfied.   Any  termination  or  reduction  of  the  Commitments  shall  be  permanent.   Each  reduction of the Commitments shall be made ratably among the Lenders in accordance with their  respective Commitments.      Section 2.10. Repayment  of  Loans;  Evidence  of  Debt.   (a) The  U.S. Borrower hereby  unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender  the then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the  Swingline  Lender the  then  unpaid  principal  amount  of  each  Swingline  Loan on  the Maturity  Date.   Each Subsidiary  Borrower  hereby  unconditionally  promises  to  pay  to  the  Applicable  Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan  and Ancillary Loan advanced to such Subsidiary Borrower on the Maturity Date.        (b)  Each  Lender  shall  maintain  in  accordance with  its  usual  practice  an  account  or  accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan  made by such Lender, including the amounts of principal and interest payable and paid to such  Lender from time to time hereunder.        (c)  Each  Applicable  Agent  shall  maintain  accounts  in  which  it  shall  record  (i) the  amount of each Loan made hereunder, the facility and Type thereof and the Interest Period (if  any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become  due and payable from each Borrower to each Lender hereunder and (iii) any amount received by  such Applicable Agent hereunder for the account of the Lenders and each Lender’s share thereof.         (d)  The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this  Section shall be prima facie evidence of the existence and amounts of the obligations recorded  therein; provided that  the failure  of  any Lender  or an Applicable  Agent to  maintain  such  accounts or any error therein shall not in any manner affect the obligation of any Borrower to  repay the Loans in accordance with the terms of this Agreement.        (e)  Any Lender may request that Loans made by it be evidenced by a promissory note.   In  such  event,  the applicable  Borrower  shall  prepare,  execute  and  deliver  to  such  Lender  a  promissory note payable to the order of such Lender (or, if requested by such Lender, to such  Lender and its registered assigns) and in a form approved by the Applicable Agent.  Thereafter,  the Loans evidenced by such promissory note and interest thereon shall at all times (including  after assignment pursuant to Section 9.04) be represented by one or more promissory notes in  such  form payable  to the  order  of  the  payee  named  therein  (or, if  such  promissory  note  is  a  registered note, to such payee and its registered assigns).                                        -47-                                           





 






      Section 2.11. Prepayment of Loans.  (a) The Borrowers shall have the right at any time  and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in  accordance with paragraph (b) of this Section.        (b)  The applicable Borrower shall notify the Administrative Agent (and, in the case of  prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of  any  prepayment  hereunder  (i) in  the  case  of  prepayment  of  a  Eurocurrency  Revolving  Borrowing,  not  later than  11:00 a.m.,  Local  Time,  three  Business Days  before the  date  of  prepayment,  (ii) in  the  case  of  prepayment  of  an  ABR  Revolving  Borrowing,  not  later  than  11:00 a.m.,  Local  Time,  one  Business  Day  before  the  date  of  prepayment,  (iii) in  the  case  of  prepayment  of  a  Swingline  Loan,  not  later  than  1:00  p.m.,  Local  Time, on the  date  of  prepayment, (iv) in the case of prepayment of a Eurocurrency Revolving Borrowing in a Foreign  Currency,  not  later  than  11:00 a.m.,  Local  Time,  four  Business  Days  before  the  date of  prepayment or (v) in the case of prepayment of an Ancillary Loan, as specified in the applicable  Ancillary  Facility  Document.   Each  such  notice  shall  be  irrevocable  and  shall  specify  the  prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;  provided that, if  a  notice  of  prepayment is  given  in  connection  with  a  conditional  notice  of  termination  of  the  Commitments  as  contemplated  by  Section 2.09,  then  such  notice  of  prepayment  may  be  revoked  if  such  notice  of  termination  is  revoked  in  accordance  with  Section 2.09.  Promptly following receipt of any such notice relating to a Revolving Borrowing,  the  Administrative  Agent  shall advise  the  Lenders  of  the  contents  thereof.   Each  partial  prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the  case  of an  advance of  a  Revolving  Borrowing  of  the  same  Type  as  provided  in  Section  2.02.   Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the  prepaid Borrowing.  Prepayments shall be accompanied by accrued interest to the extent required  by Section 2.13.        (c)  In  the event  and  on such  occasion  that  the  sum  of  (i) the  Aggregate  Revolving  Credit Exposure plus (ii) the Aggregate Ancillary Commitments exceeds either (x) 105% of the  Aggregate  Commitments  solely  as  a  result  of  currency  fluctuations or  (y) the  Aggregate  Commitments  (other  than  as  a  result  of  currency  fluctuations),  the  Borrowers  shall  prepay  Aggregate Revolving Credit Exposure owing by such Borrowers, or reduce Aggregate Ancillary  Commitments, in  an  aggregate  amount  equal  to the  amount  by  which  the  sum  of  (1) the  Aggregate Revolving Credit Exposure plus (2) the Aggregate Ancillary Commitments exceeds  the Aggregate Commitments.  In addition:  (A) in the event and on such occasion that the Dollar  Equivalent of the  aggregate  amount  of  all  Revolving  Loans  denominated  in  any  Foreign  Currency exceeds 105% of the sublimit set forth in Section 2.01(c) solely as a result of currency  fluctuations, the Borrowers shall prepay the Revolving Loans denominated in Foreign Currencies  in the amount necessary to bring the Borrowers back into compliance with Section 2.01(c); and  (B) in  the  event  and  on  such  occasion  that, solely  as  a  result  of  currency  fluctuations  in  connection  with  Foreign  Currency  Letters  of Credit, the  Dollar Equivalent of  the aggregate  LC Exposure  exceeds 105% of  the  sublimit  set  forth  in  Section 2.06(b)  with  respect  to  LC  Exposure,  the  Borrowers  shall,  to  the  extent  permitted  by  the  Senior  Notes  Documents, Cash  Collateralize the Foreign Currency Letters of Credit, but only in the amount necessary to bring  the Borrowers back into compliance with the sublimit in Section 2.06(b).                                         -48-                                           





 






        (d)  [Reserved].        (e)  In  the  event  and  on  such  occasion  that  (i) there  is  a  Defaulting  Lender  and  the  Senior Notes Documents prohibit the U.S. Borrower from Cash Collateralizing the Obligations  of such Defaulting Lender, and (ii) the Aggregate Revolving Credit Exposure exceeds an amount  equal  to  the  Aggregate  Commitments, minus the Total  Lender  Risk  Participation  of  the  Defaulting Lenders, the Borrowers shall prepay Aggregate Revolving Credit Exposure owing by  such  Borrowers  in  an  aggregate amount  equal  to  the  amount  by  which  Aggregate  Revolving  Credit Exposure exceeds the Aggregate Commitments, minus the Total Lender Risk Participation  of the Defaulting Lenders.      Section 2.12. Fees.  (a) The U.S. Borrower agrees to pay to the Administrative Agent for  the account of each Lender a facility fee, which shall accrue at the Applicable Margin on the  daily amount of  the  Commitment  of such  Lender  (whether  used or  unused)  during  the  period  from  and  including  the Restatement  Effective  Date  to  but  excluding  the  date  on  which  such  Commitment terminates; provided that, if such Lender continues to have any Revolving Credit  Exposure or Ancillary Facility Exposure after its Commitment terminates, then such facility fee  shall continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure and  Ancillary Facility Exposure from and including the date on which its Commitment terminates to  but excluding the date on which such Lender ceases to have any Revolving Credit Exposure or  Ancillary Facility Exposure.  Accrued facility fees shall be payable in arrears on the last day of  March, June, September and December of each year and on the date on which the Commitments  terminate, commencing on the first such date to occur after the date hereof; provided that any  facility  fees  accruing  after  the  date  on  which  the  Commitments  terminate  shall  be  payable  on  demand.  All  facility  fees shall  be computed  on  the  basis  of a  year  of  360 days  and  shall  be  payable for the actual number of days elapsed (including the first day but excluding the last day).        (b)  The U.S. Borrower agrees to pay (i) to the Administrative Agent for the account of  each Lender a participation fee with respect to its participations in Letters of Credit, which shall  accrue  at  the  same  Applicable  Margin  used  to  determine  the  interest  rate  applicable  to  Eurocurrency  Revolving  Loans  on  the  average  daily  amount  of  such  Lender’s  LC  Risk  Participation  during  the  period  from  and  including  the  Restatement  Effective  Date  to  but  excluding the later of the date on which such Lender’s Commitment terminates and the date on  which  such  Lender  ceases to  have  any  LC Exposure; provided that  any  fees  payable  for  the  account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting  Lender  has  not  provided  Cash  Collateral  satisfactory  to  the  Issuing  Bank  pursuant  to  Section 2.24(c) shall be payable, to the maximum extent permitted by applicable Requirements  of Law,  to  the  other  Lenders  in  accordance with  the  upward  adjustments  of  their  respective  participations in such Letter of Credit pursuant to Section 2.24(a)(iv), with the balance of such  fee,  if  any,  payable to  the  Issuing  Bank  for  its  own  account,  and  (ii) to  the  Issuing  Bank  a  fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between  the  U.S. Borrower  and  the  Issuing  Bank  on  the  average daily  amount  of  the  LC  Exposure  (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period  from  and  including  the  Restatement  Effective  Date  to  but  excluding  the  later  of  the  date of  termination of the Commitments and the date on which there ceases to be any LC Exposure, as  well  as  the  Issuing  Bank’s standard  fees  with  respect  to  the  issuance,  amendment,  renewal  or                                        -49-                                           





 






   extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and  fronting  fees  accrued  through  and  including  the  last  day  of  March,  June,  September  and  December  of  each  year  shall  be  payable  on  the  third  Business  Day  following  such  last  day,  commencing on the first such date to occur after the Restatement Effective Date; provided that  all such fees shall be payable on the date on which the Commitments terminate and any such fees  accruing after the date on which the Commitments terminate shall be payable on demand.  Any  other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days  after demand.  All participation fees and fronting fees shall be computed on the basis of a year of  360 days and shall be payable for the actual number of days elapsed (including the first day but  excluding the last day).        (c)  The U.S. Borrower agrees to pay to the Administrative Agent, for its own account,  fees payable in the amounts and at the times separately agreed upon between the U.S. Borrower  and the Administrative Agent.        (d)  All fees payable hereunder shall be paid on the dates due, in immediately available  funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for  distribution, in the case of facility fees and participation fees, to the Lenders.  Fees paid shall not  be refundable under any circumstances.      Section 2.13. Interest.  (a) The Loans comprising each ABR Borrowing (including each  applicable  Swingline  Loan)  shall  bear  interest  at  the  Alternate  Base  Rate  plus  the  Applicable  Margin appearing under “ABR Spread” in the definition of “Applicable Margin.”        (b)  The Loans comprising each Eurocurrency Borrowing shall bear interest, in the case  of a Eurocurrency Revolving Loan, at the Adjusted LIBO Rate for the Interest Period in effect  for such Borrowing plus the Applicable Margin appearing under “Eurocurrency or One-Month  LIBO Spread” in the definition of “Applicable Margin.”        (c)  Each Swingline Loan shall bear interest as determined in Section 2.05.        (d)  Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee  or  other  amount  payable  by any  Borrower  hereunder  is  not  paid  when due,  whether  at  stated  maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well  as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan,  2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of  this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as  provided in paragraph (a) of this Section.        (e)  Accrued interest on each Loan shall be payable in arrears on each Interest Payment  Date for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;  provided that (i) interest accrued pursuant  to  paragraph (d)  of  this  Section shall  be  payable on  demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment  of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the  principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment  and (iii) in the event of any conversion of any Eurocurrency Revolving Loan prior to the end of                                        -50-                                           





 






   the  current  Interest  Period  therefor,  accrued  interest  on such  Loan shall be  payable  on the  effective date of such conversion.        (f)  All interest hereunder shall be computed on the basis of a year of 360 days, except  that  (i) interest  on  Borrowings  denominated  in  Sterling  or  in  any  other  Foreign  Currency for  which it is required by applicable law or customary to compute interest on the basis of a year of  365 days (or 366 days in a leap year), and (ii) interest computed by reference to the Alternate  Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed  on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable  for the actual number of days elapsed (including the first day but excluding the last day).  The  applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the  Administrative Agent, and such determination shall be conclusive absent manifest error.      Section 2.14. Alternate Rate of Interest.  (a) Unless and until a Benchmark Replacement  is  implemented  in accordance  with  clause  (b)  below,  if  prior  to  the  commencement  of  any  Interest Period for a Eurocurrency Borrowing denominated in any currency:                (i)  the Applicable Agent determines (which determination shall be conclusive        absent manifest error)  that  deposits are  not  being  offered  to  banks  in  the  London        interbank Eurodollar market for the applicable amount and Interest Period of such Loan;                (ii)  the Applicable Agent determines (which determination shall be conclusive        absent manifest error) that adequate and reasonable means do not exist for ascertaining        the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or               (iii) the Applicable Agent is advised by the Required Lenders that the Adjusted        LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately        and fairly reflect the cost to such Lenders of making or maintaining their Loans included        in such Borrowing for such Interest Period;   then the Applicable Agent  shall  give  notice  thereof  to  the Borrowers  and  the  Lenders  by  telephone or  telecopy  as  promptly  as  practicable  thereafter  and,  until  the  Applicable  Agent  notifies  the  Borrowers  and  the  Lenders  that  the  circumstances  giving  rise  to  such  notice  no  longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to,  or continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such currency  shall be ineffective and such Borrowing shall be converted to or continued as on the last day of  the Interest Period applicable thereto (1) if such Borrowing is denominated in Dollars, an ABR  Borrowing  or  (2)  if  such  Borrowing  is denominated  in  a  Foreign  Currency,  as  a  Borrowing  bearing interest at such rate as the Administrative Agent determines adequately reflects the costs  to the  Lenders  of  making  or  maintaining  such  Borrowing,  and  (B) if  any  Borrowing  Request  requests a Eurocurrency Borrowing in such currency, such Borrowing shall be made as an ABR  Borrowing  (if such  Borrowing  is  requested  to be  made  in  Dollars)  or  shall  be  made  as  a  Borrowing  bearing  interest  at  such  rate  as  the  Administrative  Agent  determines  adequately  reflects the costs to the Lenders of making or maintaining such Borrowing.         (b)   Effect of Benchmark Transition Event.                                        -51-                                           





 






                          (i)  Notwithstanding  anything  to  the  contrary  herein or  in  any other  Loan     Document,  upon  the  occurrence of  a  Benchmark  Transition  Event  or  an  Early  Opt-in     Election,  as  applicable,  the  Administrative  Agent  and  the  Borrowers may  amend  this     Agreement  to replace the LIBO Rate with  a  Benchmark  Replacement.  Any  such     amendment with respect to a Benchmark Transition Event will become effective at 5:00     p.m.  on  the  fifth  (5th)  Business  Day  after  the  Administrative  Agent  has  posted  such     proposed  amendment to  all Lenders  and  the  Borrowers so  long  as  the  Administrative     Agent  has  not  received,  by  such  time,  written  notice  of  objection  to  such  amendment     from Lenders comprising the Required Lenders. Any such amendment with respect to an     Early Opt-in  Election will  become  effective  on  the  date  that  Lenders  comprising  the     Required  Lenders have  delivered  to  the  Administrative  Agent  written  notice  that  such     Required  Lenders  accept  such  amendment.  No  replacement  of the LIBO Rate with  a     Benchmark  Replacement  pursuant  to  this Section 2.14(b) will  occur  prior  to  the     applicable Benchmark Transition Start Date.            (ii)  In connection with the implementation of a Benchmark Replacement, the     Administrative Agent will have the right to make Benchmark Replacement Conforming     Changes from time to time and, notwithstanding anything to the contrary herein or in any     other  Loan  Document,  any  amendments  implementing  such  Benchmark  Replacement     Conforming Changes will become effective without any further action or consent of any     other party to this Agreement.            (iii) The  Administrative  Agent  will  promptly  notify  the Borrower  and  the     Lenders  of  (A)  any  occurrence  of  a  Benchmark  Transition  Event  or  an  Early  Opt-in     Election,  as  applicable,  and  its  related  Benchmark  Replacement  Date  and  Benchmark     Transition Start Date, (B) the implementation of any Benchmark Replacement, (C) the     effectiveness  of  any  Benchmark  Replacement  Conforming  Changes  and  (D)  the     commencement  or  conclusion  of  any  Benchmark  Unavailability  Period.  Any     determination, decision or election  that  may be  made  by  the  Administrative  Agent or     Lenders pursuant to this Section 2.14(b), including any determination with respect to a     tenor,  rate  or  adjustment  or  of  the  occurrence  or  non-occurrence  of  an  event,     circumstance or date and any decision to take or refrain from taking any action, will be     conclusive and  binding  absent  manifest  error  and  may  be  made  in  its  or  their  sole     discretion  and  without  consent  from  any  other  party  hereto,  except,  in  each  case,  as     expressly required pursuant to this Section 2.14(b).            (iv)  Upon  the  Borrowers’ receipt of  notice  of the  commencement  of  a     Benchmark  Unavailability  Period,  the  Borrowers may  revoke  any  request  for  a     Eurocurrency Loan of, conversion to or continuation of Eurocurrency Loans to be made,     converted or continued during any Benchmark Unavailability Period and, failing that, the     Borrowers will  be  deemed  to  have  converted  any  such  request  into  a  request  for  a     borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period,     the component of the Alternate Base Rate based upon the LIBO Rate will not be used in     any determination of the Alternate Base Rate.   Section 2.15. Increased Costs.  (a) If any Change in Law shall:                                     -52-                                        





 






                (i)  impose, modify  or deem applicable  any  reserve,  special  deposit,        compulsory loan, insurance charge or similar requirement against assets of, deposits with        or for the account of, or advances, loans or other credit extended or participated in by,        any Lender (except any reserve requirement reflected in the Adjusted LIBO Rate) or the        Issuing Bank;               (ii)  subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)        Taxes  described  in  clause  (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 deposit, reserves, other liabilities or capital attributable thereto; or               (iii) impose  on any  Lender  or  any Issuing  Bank  or  the  London interbank        market any other condition, cost or expense (other than Taxes) affecting this Agreement        or any Advance made by such Lender or any Letter of Credit or participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lender or such other  Recipient of making, converting to, or continuing or maintaining any Loan or of maintaining its  obligation to make any such Loan, or to increase the cost to such Lender or such Issuing Bank or  such  other  Recipient of  participating in, issuing  or maintaining  any  Letter  of  Credit (or  of  maintaining  its obligation  to  participate  in  or  to  issue  any  Letter  of  Credit) or  to  reduce  the  amount  of  any  sum  received  or  receivable  by  such  Lender, Issuing  Bank or  other  Recipient  hereunder  (whether  of  principal, interest  or any  other  amount),  then,  upon  request  of such  Lender, Issuing Bank  or  other  Recipient, the  applicable  Borrower  will  pay  to  such  Lender,  Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will  compensate such  Lender, Issuing  Bank or  other Recipient,  as  the  case  may  be,  for  such  additional costs incurred or reduction suffered.        (b)  If any Lender or Issuing Bank determines that any Change in Law affecting such  Lender  or  Issuing  Bank  or  any Lending Office  of such  Lender  or  such Lender’s  or  Issuing  Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have  the  effect  of  reducing  the  rate  of  return  on  such  Lender’s  or Issuing  Bank’s  capital  or  on  the  capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this  Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters  of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by any Issuing  Bank,  to  a level below  that  which  such  Lender  or  Issuing  Bank  or  such  Lender’s  or Issuing  Bank’s  holding  company  could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration  such  Lender’s  or Issuing  Bank’s  policies  and  the policies  of  such Lender’s  or  Issuing Bank’s holding company with respect to capital adequacy and liquidity requirements),  then from time to time the applicable Borrower will pay to such Lender or Issuing Bank, as the  case  may  be,  such  additional  amount  or  amounts as  will  compensate such Lender  or Issuing  Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.        (c)  If any Change in Law shall make it unlawful or impossible for any Lender to make  or  maintain  any  Eurocurrency  Loan,  such  Lender  shall  immediately  notify  the  Administrative  Agent and the Borrowers in writing of such circumstance.  Upon receipt of such notice, (i) the  applicable Borrower’s right to request the making of, conversion to or a new Interest Period for                                        -53-                                           





 






   Eurocurrency  Loans  with respect to such  Lender  shall  be terminated,  and  (ii) the  applicable  Borrower shall, at the request of such Lender, either (A) pursuant to Section 2.08, as the case  may be, convert any such then outstanding Eurocurrency Loans of such Lender into ABR Loans,  at the end of the current Interest Period for such Eurocurrency Loans or (B) immediately repay or  convert any such Eurocurrency Loans of such Lender if such Lender shall notify the applicable  Borrower that such Lender may not lawfully continue to fund and maintain such Eurocurrency  Loans.  Any conversion or prepayment of Eurocurrency Loans made pursuant to the preceding  sentence prior to the last day of an Interest Period for such Eurocurrency Loans shall be deemed  a prepayment thereof for purposes of Section 2.16.  After any Lender notifies the Administrative  Agent and the Borrowers of such a circumstance under this Section 2.15(c) and until such Lender  notifies the Administrative Agent and the Borrowers that it is no longer unlawful or impossible  for such Lender to make or maintain a Eurocurrency Loan, all Revolving Loans of such Lender  shall be ABR Loans.        (d)  If  any  Lender  determines  that  any  law  of  any  applicable  jurisdiction  has  made  it  unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender to  (i) perform any of its obligations hereunder or under any other Loan Document with respect to a  Foreign Subsidiary Borrower, (ii) fund or maintain its participation in any Loan with respect to a  Foreign Subsidiary Borrower, or (iii) issue, make, maintain, fund or charge interest with respect  to  any  credit  extension  with  respect  to  a  Foreign Subsidiary  Borrower,  such  Person  shall  promptly notify the Administrative Agent, and then, upon the Administrative Agent notifying the  U.S. Borrower, and until such notice by such Person is revoked, any obligation of such Person to  issue, make, maintain, fund or charge interest with respect to any such credit extension shall be  suspended, and to the extent required by applicable law, cancelled.  Upon receipt of such notice,  the  Borrowers  shall,  (A) repay  that  Person’s  participation  in  the  Loans  or  other  applicable  Obligations on the last day of the Interest Period for each Loan or other Obligation occurring  after the Administrative Agent has notified the U.S. Borrower or, if earlier, the date specified by  such Person in the notice delivered to the Administrative Agent (being no earlier than the last  day  of  any  applicable  grace  period permitted  by  applicable  law)  and  (B)  take all  reasonable  actions requested by such Person to mitigate or avoid such illegality.        (e)  A  certificate  of  a  Lender  or Issuing  Bank  setting  forth  the  amount  or  amounts  necessary to compensate such Lender or Issuing Bank or its holding company, as the case may  be, as specified in paragraph (a) or (b) of this Section shall be delivered to the U.S. Borrower and  shall be conclusive absent manifest error.  The applicable Borrower shall pay such Lender or the  Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10  days after receipt thereof.        (f)  Failure or delay on the part of any Lender or Issuing Bank to demand compensation  pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to  demand such compensation; provided that the U.S. Borrower shall not be required to compensate  a Lender or Issuing Bank pursuant to this Section for any increased costs incurred or reductions  suffered more than 270 days prior to the date that such Lender or Issuing Bank, as the case may  be, notifies  the  U.S. Borrower  of  the  Change  in  Law  giving  rise  to such  increased  costs  or  reductions  and  of  such  Lender’s  or Issuing  Bank’s  intention  to  claim  compensation  therefor;  provided, further, that, if the Change in Law giving rise to such increased costs or reductions is                                        -54-                                           





 






   retroactive, then the 270-day period referred to above shall be extended to include the period of  retroactive effect thereof.      Section 2.16. Break Funding Payments.  In the event of (a) the payment of any principal  of  any  Eurocurrency  Loan  other  than  on  the  last  day  of  an  Interest Period  applicable  thereto  (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan other  than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,  continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant  hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked  in accordance therewith), or (d) the assignment of any Eurocurrency Loan other than on the last  day  of  the  Interest  Period  applicable  thereto  as  a  result  of  a  request  by  the  U.S. Borrower  pursuant to Section 2.19, then, in any such event, the applicable Borrower shall compensate each  Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency  Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined  by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued  on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate  that would have been applicable to such Loan, for the period from the date of such event to the  last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert  or continue, for the period that would have been the Interest Period for such Loan), over (ii) the  amount of interest which would accrue on such principal amount for such period at the interest  rate which such Lender would bid were it to bid, at the commencement of such period, for Dollar  deposits  of  a  comparable  amount  and  period  from other  banks  in  the  eurodollar  market.  A  certificate  of  any  Lender  setting  forth  any  amount  or  amounts  that  such  Lender  is entitled  to  receive  pursuant  to  this  Section shall  be delivered  to  the  applicable  Borrower  and  shall  be  conclusive absent manifest error.  The applicable Borrower shall pay such Lender the amount  shown as due on any such certificate within 10 days after receipt thereof.      Section 2.17. Taxes.  (a) Payment Free of Taxes.  Any and all payments by or on account  of any obligation of any Borrower 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  Borrower  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 2.17) the applicable Recipient receives an amount equal to the  sum it would have received had no such deduction or withholding been made.        (b)  Payment  of  Other  Taxes  by  Borrowers.  The  Borrowers  shall  timely pay  to  the  relevant  Governmental  Authority  in  accordance  with  applicable  law,  or at  the  option  of  the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.        (c)  Evidence of Payments.  As soon as practicable after any payment of Taxes by any  Borrower to a Governmental Authority pursuant to this Section 2.17, such Borrower shall deliver                                        -55-                                           





 






   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)  Indemnification by Borrowers.  The Borrowers shall jointly and severally indemnify  each  Recipient,  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)  payable  or  paid  by  such  Recipient  or  required to  be  withheld  or  deducted  from a payment to such Recipient and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by  the relevant Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to the U.S. 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)  Indemnification  by  the  Lenders.  Each  Lender shall severally  indemnify  the  Administrative  Agent, within  10  days  after  demand  therefor,  for  (i)  any  Indemnified  Taxes  attributable to such Lender (but only to the extent that any Borrower has not already indemnified  the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the  Borrowers  to  do  so), (ii)  any  Taxes  attributable  to  such  Lender's  failure  to  comply  with  the  provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any  Excluded  Taxes attributable  to  such  Lender, in  each  case,  that  are  payable  or  paid  by the  Administrative  Agent  in  connection  with  any  Loan  Document,  and  any  reasonable  expenses  arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally  imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of  such  payment  or liability  delivered  to  any  Lender  by  the  Administrative  Agent  shall  be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set  off and apply any and all amounts at any time owing to such Lender under any Loan Document  or otherwise payable by the Administrative Agent to the Lender from any other source against  any amount due to the Administrative Agent under this paragraph (e).        (f)  Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction  of withholding Tax with respect to payments made under any Loan Document shall deliver to the  U.S. Borrower and the Administrative Agent, at the time or times reasonably requested by the  U.S. Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed  documentation reasonably requested by the U.S. 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 U.S. Borrower or the Administrative Agent,  shall deliver such other documentation prescribed by applicable law or reasonably requested by  the U.S. Borrower or  the Administrative  Agent  as  will  enable  the U.S. Borrower  or  the  Administrative Agent to determine whether or not such Lender is subject to backup withholding  or  information  reporting  requirements.   Notwithstanding  anything  to the  contrary in  the  preceding  two  sentences,  the completion,  execution  and  submission  of  such  documentation  (other than such documentation set forth in Section 2.17(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                                        -56-                                           





 






   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 a Borrower is a  U.S. Person,               (A)   any Lender that is a U.S. Person shall deliver to the U.S. 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        U.S. Borrower  or  the  Administrative Agent),  executed  copies of  IRS  Form  W-9        certifying that such Lender is exempt from U.S. federal backup withholding tax;               (B)   any  Foreign  Lender  shall,  to  the  extent  it  is legally  entitled  to  do  so,        deliver to the U.S. Borrower and the Administrative Agent (in such number of copies as        shall be requested by the recipient) on or prior to the date on which such Foreign Lender        becomes  a  Lender  under  this  Agreement  (and  from  time to  time  thereafter  upon the        reasonable request of the U.S. Borrower or the Administrative Agent), whichever of the        following is applicable:                     (1)   in the case of a Foreign Lender claiming the benefits of an income              tax treaty to which the United States is a party (x) with respect to payments of              interest  under  any  Loan  Document, executed  copies of  IRS  Form  W-8BEN              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              establishing  an  exemption  from,  or  reduction  of,  U.S.  federal  withholding  Tax              pursuant to the “business profits” or “other income” article of such tax treaty;                     (2)   executed copies of IRS Form W-8ECI;                     (3)   in  the  case  of  a  Foreign  Lender  claiming  the benefits  of the              exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate              substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is              not  a “bank”  within  the  meaning of  Section  881(c)(3)(A)  of  the  Code,  a              “10 percent  shareholder” of  the U.S. Borrower  within  the  meaning  of  Section              881(c)(3)(B)  of  the  Code,  or  a  "controlled  foreign  corporation"  described  in              Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y)              executed copies of IRS Form W-8BEN; or                     (4)   to the extent a Foreign Lender is not the beneficial owner, executed              copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-             8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2              or  Exhibit D-3, IRS  Form  W-9, and/or  other  certification  documents  from  each              beneficial  owner,  as  applicable; provided that  if  the  Foreign  Lender  is  a              partnership and one or more direct or indirect partners of such Foreign Lender are              claiming  the  portfolio  interest  exemption,  such  Foreign  Lender may  provide  a                                        -57-                                           





 






               U.S.  Tax  Compliance  Certificate  substantially  in  the  form  of  Exhibit D-4  on              behalf of each such direct and indirect partner;               (C)   any  Foreign  Lender  shall,  to  the  extent  it  is  legally entitled  to  do  so,        deliver to the U.S. Borrower and the Administrative Agent (in such number of copies as        shall be requested by the recipient) on or prior to the date on which such Foreign Lender        becomes  a  Lender  under this Agreement (and  from time to  time  thereafter  upon the        reasonable request of the U.S. Borrower or the Administrative Agent), executed copies of        any other form prescribed by applicable law as a basis for claiming exemption from or a        reduction in  U.S.  federal withholding Tax,  duly  completed,  together  with  such        supplementary documentation as may be prescribed by applicable law to permit the U.S.        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 U.S. Borrower and the Administrative Agent at the time or times prescribed        by  law  and  at  such  time  or  times  reasonably  requested  by  the U.S. 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 U.S. Borrower  or  the  Administrative  Agent  as  may be        necessary  for  the U.S. Borrower  and the  Administrative Agent to  comply  with  their        obligations  under  FATCA  and  to  determine  that  such Lender  has  complied  with  such        Lender's obligations under FATCA or to determine the amount to deduct and withhold        from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any        amendments made to FATCA after the date of this Agreement.         Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered  expires  or  becomes  obsolete  or  inaccurate  in  any  respect,  it  shall  update  such form or  certification  or  promptly notify the U.S. Borrower and the Administrative Agent in writing of its legal inability  to do so.        (g)  Treatment  of  Certain  Refunds.  If  any  party  determines,  in  its  sole  discretion  exercised  in  good  faith,  that  it  has  received a  refund of any  Taxes  as to  which  it  has  been  indemnified  pursuant  to  this  Section  2.17  (including  by  the  payment  of  additional  amounts  pursuant to this Section 2.17), 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 2.17 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                                        -58-                                           





 






   paragraph (g), in  no  event  will  the  indemnified  party  be  required to  pay  any amount  to  an  indemnifying  party  pursuant  to  this  paragraph (g) the  payment  of  which  would  place  the  indemnified  party  in  a  less  favorable  net  after-Tax  position  than  the  indemnified  party  would  have been in if the Tax subject to indemnification and giving rise to such refund had not been  deducted,  withheld  or  otherwise  imposed  and  the  indemnification  payments  or  additional  amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to  require any indemnified party to make available its Tax returns (or any other information relating  to its Taxes that it deems confidential) to the indemnifying party or any other Person.        (h)  Survival.  Each  party's  obligations  under  this  Section  2.17  shall  survive  the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under any Loan Document.        (i)  Defined Terms.  For purposes of this Section 2.17, the term “Lender” includes any  Issuing Bank and the term “applicable law” includes FATCA.      Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.  (a) Unless  otherwise  specified,  each  Borrower  shall  make  each  payment  required  to  be  made  by  it  hereunder  (whether  of  principal,  interest,  fees  or  reimbursement  of  LC  Disbursements,  or  of  amounts payable under Section 2.15, 2.16, 2.17 or 2.21, or otherwise) prior to 1:00 p.m., Local  Time,  on  the  date  when  due,  in  immediately  available  funds,  without  set-off  or  counterclaim.   Any  amounts  received  after  such  time  on  any  date  may,  in  the  discretion  of the Applicable  Agent, be deemed to have been received on the next succeeding Business Day for purposes of  calculating interest thereon.  All such payments shall be made to the Applicable Agent to the  applicable account designated to the U.S. Borrower by each Applicable Agent, except payments  to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided  herein  and  except  that  payments  pursuant  to  Sections  2.15,  2.16,  2.17,  2.21  and 9.05  shall  be  made  directly  to  the  persons  entitled  thereto.   The Applicable  Agent  shall  distribute  any  such  payments received by it for the account of any other person to the appropriate recipient promptly  following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business  Day, the date for payment shall be extended to the next succeeding Business Day, and, in the  case of any payment accruing interest, interest thereon shall be payable for the period of such  extension.  All payments hereunder of (i) principal or interest in respect of any Loan shall be  made in the currency in which such Loan is denominated, (ii) reimbursement obligations shall,  subject to Sections 2.06(e) and 2.06(k), be made in the currency in which the Letter of Credit in  respect of which such reimbursement obligation exists is denominated or (iii) any other amount  due hereunder  or under  another  Loan  Document  (other  than  an  Ancillary  Facility  Document)  shall be made in Dollars.  Any payment required to be made by an Applicable Agent hereunder  shall be deemed to have been made by the time required if such Applicable Agent shall, at or  before such time, have taken the necessary steps to make such payment in accordance with the  regulations or operating procedures of the clearing or settlement system used by such Applicable  Agent to make such payment.        (b)  If  at  any  time  insufficient  funds  are  received  by  and  available  to  the  Applicable  Agent  from  any  Borrower  to  pay  fully  all  amounts  of  principal,  unreimbursed                                        -59-                                           





 






   LC Disbursements, interest and fees then due from such Borrower hereunder, such funds shall be  applied (i) first, towards payment of interest and fees then due from such Borrower hereunder,  ratably  among  the  parties  entitled  thereto  in  accordance  with  the  amounts  of  interest  and  fees  then  due  to  such parties,  and  (ii) second,  towards  payment  of  principal  and  unreimbursed  LC Disbursements then due from such Borrower hereunder, ratably among the parties entitled  thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then  due to such parties.        (c)  If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,  obtain payment in respect of any principal of or interest on any of its Ancillary Loans, Revolving  Loans or  participations  in  LC  Disbursements  or Swingline  Loans  resulting  in  such  Lender  receiving  payment  of  a  proportion  of  the  aggregate  amount  of  its  Ancillary  Loans,  Revolving  Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon  greater than its pro rata share thereof as provided herein, then the Lender receiving such greater  proportion shall (i) notify the Administrative Agent of such fact and (ii) purchase (for cash at  face  value)  participations  in  the  Ancillary  Loans,  Revolving  Loans  and  participations  in LC  Disbursements and Swingline Loans of other Lenders, or make such other adjustments as shall  be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in  accordance  with  the  aggregate  amount  of  principal  of  and  accrued  interest  on  their  respective  Ancillary Loans, Revolving Loans and participations in LC Disbursements and Swingline Loans;  provided that (i) if any such participations are purchased and all or any portion of the payment  giving  rise  thereto  is  recovered,  such  participations shall be  rescinded and  the  purchase price  restored  to  the  extent of  such  recovery,  without  interest,  and  (ii) the  provisions  of  this  paragraph (c) shall not be construed to apply to any payment made by a Borrower pursuant to  and in accordance with the express terms of this Agreement (including the application of funds  arising  from the  existence  of  a  Defaulting  Lender) or any  payment  obtained  by  a  Lender  as  consideration for the assignment of or sale of a participation in any of its Loans or participations  in  LC  Disbursements to  any  assignee or  participant,  other  than  to such  Borrower  or  any  Subsidiary  or  Affiliate  thereof (as  to  which  the  provisions  of  this  paragraph (c)  shall  apply).   Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under  applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements  may  exercise  against  such  Borrower  rights  of  set-off  and  counterclaim  with  respect  to  such  participation as fully as if such Lender were a direct creditor of such Borrower in the amount of  such participation.        (d)  Unless the Applicable Agent shall have received notice from a Borrower prior to the  date on which any payment is due to the Applicable Agent for the account of the Lenders or the  applicable Issuing  Bank  hereunder that  such  Borrower  will  not  make  such  payment,  the  Applicable  Agent  may  assume  that  such  Borrower  has  made  such  payment  on  such  date  in  accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the  applicable Issuing Bank, as applicable, the amount due.  In such event, if such Borrower has not  in  fact  made  such  payment,  then  each  of  the  Lenders  or  the  applicable  Issuing  Bank,  as  applicable, severally agrees to repay to the Applicable Agent forthwith on demand the amount so  distributed to such Lender or Issuing Bank with interest thereon, for each day from and including  the  date  such  amount  is  distributed  to  it  to  but  excluding  the date  of  payment  to  the  Administrative Agent, at (i) the greater of the Federal Funds Effective Rate and a rate determined                                        -60-                                           





 






   by the  Administrative  Agent  in  accordance  with  banking industry  rules  on  interbank  compensation  (in  the  case  of  an  amount  denominated in  Dollars)  and  (ii) the  rate  reasonably  determined by the Applicable Agent to be the cost to it of funding such amount (in the case of an  amount denominated in a Foreign Currency).        (e)  If any Lender shall fail to make any payment required to be made by it pursuant to  Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Applicable Agent may, in its  discretion (notwithstanding  any  contrary  provision  hereof),  apply  any  amounts  thereafter  received  by  the  Applicable  Agent  for  the  account  of  such  Lender  to  satisfy  such  Lender’s  obligations under such Sections until all such unsatisfied obligations are fully paid.        (f)  Any time there is a Defaulting Lender, each payment of principal on Loans or LC  Disbursements shall be shared by only the Non-Defaulting Lenders that made such Loans or LC  Disbursements pro rata according to the respective unpaid principal amounts of such Loans or  LC Disbursements then owed to such Non-Defaulting Lenders until the unpaid principal amounts  of  all  Loans  and  LC  Disbursements,  as  applicable,  are  held  by  all Lenders  according to  their  respective Applicable Adjusted Percentages.        (g)  Letter  of  Credit  fees  payable  under  Section 2.12(b) shall  be shared  among  the  Lenders  with  Commitments  (other  than  Defaulting  Lenders)  and  the  Issuing  Bank  pro  rata  according to (i) their respective LC Risk Participations and Fronting Exposure with respect to the  applicable  Letters  of  Credit  and  (ii) in  the  case  of each  Lender  which  becomes  a  Lender  hereunder after the date hereof, the date upon which such Lender so became a Lender.      Section 2.19. Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests  compensation under Section 2.15, or if any Borrower is required to pay any Indemnified Taxes  or additional  amounts to  any  Lender  or  any  Governmental  Authority  for  the account  of  any  Lender  pursuant  to  Section 2.17,  then such  Lender  shall (at  the  request  of  any  Borrower) use  reasonable  efforts  to  designate  a  different Lending Office  for  funding  or  booking its  Loans  hereunder or to assign its rights and obligations hereunder to another of its offices, branches or  affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate  or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future,  and  (ii) would  not subject  such Lender  to  any  unreimbursed  cost  or  expense  and  would  not  otherwise  be  disadvantageous  to  such  Lender.   Each  Borrower  hereby  agrees  to  pay  all  reasonable costs and expenses incurred by any Lender in connection with any such designation  or assignment.        (b)  If  any  Lender  requests  compensation  under Section 2.15,  or  if  a  Borrower  is  required  to  pay  any Indemnified  Taxes  or additional  amounts to  any  Lender  or  any  Governmental  Authority  for  the  account  of  any  Lender  pursuant  to  Section 2.17 and,  in  each  case, such Lender has failed to or is unable to designate a different Lending Office in accordance  with Section 2.19(a), or if any Lender is a Defaulting Lender or Non-Consenting Lender, then  such  Borrower may,  at  its  sole expense  and  effort,  upon  notice  to  such  Lender  and  the  Administrative  Agent,  require  such  Lender  to  assign  and  delegate,  without  recourse  (in  accordance  with  and subject  to  the  restrictions  contained  in,  and  consent required  by,  Section 9.04),  all of its  interests,  rights (other  than its  existing rights  to  payments  pursuant  to                                        -61-                                           





 






   Section  2.15  or  Section  2.17) and  obligations  under  this  Agreement and  the  related  Loan  Documents to an Eligible Assignee that shall assume such obligations (which Eligible Assignee  may be another Lender, if a Lender accepts such assignment); provided that (i) such Borrower  shall have received the prior written consent of the Administrative Agent (and if a Commitment  is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such  Lender shall have received payment of an amount equal to the outstanding principal of its Loans  and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued  fees  and  all other amounts  payable  to it  hereunder and  under  the  other  Loan  Documents  (including any amounts under Section 2.16), from the assignee (to the extent of such outstanding  principal  and  accrued  interest  and  fees)  or  such  Borrower  (in  the  case of all  other  amounts),  (iii) in  the  case  of  any  such  assignment  resulting  from  a claim  for  compensation  under  Section 2.15 or  payments  required  to  be  made  pursuant  to  Section 2.17,  such  assignment  will  result  in  a  reduction  in  such  compensation or  payments thereafter,  (iv) unless  waived, such  Borrower  shall  have  paid  to  the  Administrative  Agent  the  assignment  fee described  in  Section 9.04(b)(ii)(C), (v) such assignment does not conflict with applicable law, and (vi) in the  case  of  any  assignment resulting from  a  Lender  becoming  a Non-Consenting  Lender,  the  applicable  assignee  shall  have  consented  to  the  applicable  amendment,  waiver  or  consent.   A  Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of  a  waiver  by  such Lender  or otherwise,  the  circumstances  entitling  such  Borrower  to  require such assignment and delegation cease to apply.      Section 2.20. Subsidiary  Borrowers.   On  or  after  the  Restatement  Effective  Date,  the  U.S. Borrower  may  designate any  Wholly-Owned  Subsidiary  as  a  Subsidiary  Borrower  by  delivery  to  the  Administrative  Agent  of  a  Subsidiary  Borrower  Agreement  executed  by  such  Subsidiary and the U.S. Borrower.  Each such designation shall specify whether such Subsidiary  shall  be  entitled  (i) to  obtain  Revolving Loans  and/or  (ii) to  request  the  creation  of  Ancillary  Facilities under Section 2.22, and each such designation shall be subject to the consent of the  Administrative Agent (which consent shall not unreasonably be withheld); provided that, to the  extent  such  designation  specifies  a  Foreign  Subsidiary  as  the  Subsidiary  Borrower,  such  designation shall be subject to the consent of all Lenders (which consent shall not unreasonably  be  withheld).  Upon  the  execution  by the  U.S. Borrower and  delivery to  the  Administrative  Agent of  a  Subsidiary  Borrower  Termination  with respect  to  any  Subsidiary  Borrower,  such  Subsidiary shall cease to be a Subsidiary Borrower and a party to this Agreement; provided that  no Subsidiary Borrower Termination will become effective as to any Subsidiary Borrower (other  than  to  terminate  such  Subsidiary  Borrower’s  right  to  make  further  Borrowings  under  this  Agreement) at a time when any principal of or interest on any Loan to such Subsidiary Borrower  shall be outstanding hereunder or any Ancillary Facility under which Ancillary Loans may be  made available  to  such  Subsidiary  Borrower  has  not  been  previously  terminated.   Promptly  following receipt of any Subsidiary Borrower Agreement or Subsidiary Borrower Termination,  the Administrative Agent shall send a copy thereof to each Lender.      Section 2.21. Additional Reserve Costs.  (a) For so long as any Lender is required to make  special deposits with the Bank of England or comply with reserve assets, liquidity, cash margin  or other requirements of the Bank of England, to maintain reserve asset ratios or to pay fees, in  each case in respect of such Lender’s Eurocurrency Loans or Foreign Currency Letters of Credit,  such Lender shall be entitled to require the applicable Borrower to pay, contemporaneously with                                        -62-                                           





 






   each payment of interest on each of such Loans and Letters of Credit, additional interest on such  Loan and/or Letter of Credit at a rate per annum equal to the Mandatory Costs Rate calculated in  accordance with the formula and in the manner set forth in Exhibit F hereto.        (b)  For so long as any Lender is required to comply with reserve assets, liquidity, cash  margin or other requirements of any monetary or other authority (including any such requirement  imposed by the European Central Bank or the European System of Central Banks, but excluding  requirements reflected in the Statutory Reserves or the Mandatory Costs Rate) in respect of any  of such Lender’s Eurocurrency Loans and Foreign Currency Letters of Credit, such Lender shall  be entitled to require the applicable Borrower to pay, contemporaneously with each payment of  interest  on  each  of  such  Lender’s  Loans  and  Letters of Credit subject  to  such requirements,  additional interest on such Loan and/or Letter of Credit at a rate per annum specified by such  Lender to be the cost to such Lender of complying with such requirements in relation to such  Loan and/or Letter of Credit.        (c)  Any additional  interest  owed  pursuant  to  paragraph (a)  or  (b) above  shall  be  determined by the applicable Lender, which determination shall be conclusive absent manifest  error, and notified to the applicable Borrower (with a copy to the Administrative Agent) at least  five  Business  Days  before  each  date  on  which  interest  is  payable  for  the  applicable  Loan  or  Letter  of  Credit,  and  such  additional  interest  so  notified  to  the  applicable  Borrower  by  such  Lender shall be payable to the Administrative Agent for the account of such Lender on each date  on which interest is payable for such Loan or Letter of Credit.      Section 2.22. Ancillary Facilities.          (a)  General.   If  a  Subsidiary  Borrower  and a  Lender or Lenders agree,  subject to  (i) compliance with the requirements set forth in this Section 2.22, (ii) such Subsidiary Borrower  having  complied  with  Sections 2.20  and  4.03,  and  (iii) such  Subsidiary  Borrower  having  delivered to the Administrative Agent the U.S. Borrower Guaranty, fully executed and in form  and substance  reasonably  satisfactory  to  the  Administrative  Agent,  such  Lenders  shall  be  permitted  to  provide  an  Ancillary  Facility  to  such  Subsidiary  Borrower.   The  Aggregate  Ancillary Commitments shall not at any time exceed $25,000,000.        (b)  Creation of Ancillary Facilities.  To request the creation of an Ancillary Facility, a  Subsidiary Borrower shall deliver to the Administrative Agent not later than 10 Business Days  (or such shorter period agreed to by the Administrative Agent) prior to the first date on which  such Ancillary Facility is proposed to be made available:                (i)  notice in writing specifying:                     (A)   the  Subsidiary  Borrower  to  which  extensions  of  credit  will  be              made available thereunder;                     (B)   the  first  date  on  which  such  Ancillary  Facility  shall  be  made              available and  the  expiration  date  of  such  Ancillary  Facility  (which  shall  be  no              later than the Maturity Date);                                        -63-                                           





 






                     (C)   the type of Ancillary Facility being provided;                     (D)   the identity of the Ancillary Lender(s) (which shall be acceptable              to the Administrative Agent); and                     (E)   the  amount  of  the  Ancillary  Commitment  with  respect  to  such              Ancillary Facility (which shall be expressed in Dollars and shall not (x) exceed              the  Available  Unused  Commitment  of  each such  Ancillary  Lender on  the  first              date on  which  such Ancillary  Facility  shall  be made  available  or  (y) when              combined  with all  Ancillary  Commitments  of  the  Ancillary  Lenders,  exceed              $25,000,000) and, if applicable, the Foreign Currencies in which such Ancillary              Facilities shall be made available.               (ii)  a copy of the Ancillary Facility Document with respect to such Ancillary        Facility  (which  shall  be  reasonably  acceptable  to  the  Administrative  Agent),  together        with a certificate of a Financial Officer certifying that the terms of such Ancillary Facility        satisfy the requirements set forth in clauses (i)(B) and (i)(E) above and in paragraph (d)        of this Section; and               (iii) such  other  information  that  the  Administrative  Agent  may  reasonably        request in connection with such Ancillary Facility.   The Administrative Agent shall give notice to each Lender of such matters.        (c)  Amendment  of  Ancillary  Facilities.   To  request  an  amendment  of  an  Ancillary  Facility, the applicable Subsidiary Borrower shall deliver to the Administrative Agent, not later  than five Business Days (or such shorter period agreed to by the Administrative Agent) prior to  the  effective  date  of  such  amendment,  (i) a  notice  in  writing  (A) identifying  the  Ancillary  Facility  to  be  amended, (B) the  effective date  of  such amendment  and  (C) the  documentation  relating  to  such proposed  amendment  (which  shall  be  reasonably  satisfactory  to  the  Administrative  Agent)  and  (ii) a  certificate  of  a  Financial  Officer  certifying  that  the  terms  of  such Ancillary Facility, after giving effect to such proposed amendment, satisfy the requirements  set forth in clauses (i)(B) and (i)(E) of paragraph (b) of this Section and in paragraph (d) of this  Section.  The Administrative Agent shall give notice to each Lender of such matters.        (d)  Terms  of Ancillary  Facility.   Each  Ancillary  Facility  shall contain  terms  and  conditions  acceptable  to  the  applicable  Ancillary  Lenders  and  the  applicable  Subsidiary  Borrower  thereunder; provided that  such  terms  shall  at  all  times: (i) be  based  upon normal  commercial terms at the time of the creation of such Ancillary Facility pursuant to paragraph (b)  of this Section; (ii) permit extensions of credit thereunder to be made only to such Subsidiary  Borrower; (iii) provide that the Ancillary Commitment of the applicable Ancillary Lenders under  such Ancillary Facility shall not exceed such Ancillary Lender’s Available Unused Commitment  and  that,  in  the  event  and  on  such  occasion  that  such  Ancillary  Commitment  exceeds  such  Available Unused Commitment, such Ancillary Commitment shall be automatically reduced by  the  amount of  such  excess; (iv) provide  that  the  Ancillary  Commitment  under  such  Ancillary  Facility be canceled, and that all extensions of credit under such Ancillary Facility be repaid, not                                        -64-                                           





 






   later than  the Maturity Date; (v) provide  that  the  conditions set  forth  in Article IV  shall  be  conditions to each extension of credit under such Ancillary Facility; and (vi) not provide for the  payment of facility fees in respect of the Ancillary Commitment for such Ancillary Facility.        (e)  Termination and  Demand  for  Repayment.  (i) Any  Ancillary  Facility  shall  be  permitted to be terminated by the applicable Ancillary Lenders in accordance with the terms of  such Ancillary Facility and, upon the effective date of such termination (an “Ancillary Facility  Termination Date”), all Ancillary Loans under such Ancillary Facility shall be repaid in full.        (ii) Notwithstanding  anything  to  the  contrary  set  forth  in  the  Ancillary  Facility  Document relating to the Ancillary Facility to be terminated, the Ancillary Lenders seeking to  terminate an  Ancillary  Facility  shall  deliver  to  the  Applicable  Agent,  with  a  copy  to  the  applicable Subsidiary Borrower, a written notice of termination (a “Notice of Termination”) not  later than five Business Days prior to the Ancillary Facility Termination Date specified in such  Notice  of  Termination  for  such  Ancillary Facility.   Each  such  Notice  of  Termination  shall  specify:               (A)   the names of the applicable Subsidiary Borrower and Ancillary Lenders;               (B)   the  aggregate  amount  of  Ancillary Loans  under the  applicable  Ancillary        Facility (which shall not exceed the Ancillary Commitment in respect of such Ancillary        Facility); and               (C)   the applicable Ancillary Facility Termination Date.        (f)  Cancellation  by  Subsidiary  Borrower.  The  Subsidiary  Borrower  to  which  an  Ancillary  Facility  has been  made  available  shall  be  permitted  at  any  time  to  request  the  cancellation of all or a portion of such Ancillary Facility by delivery of a notice in writing to the  Administrative Agent and the applicable Ancillary Lenders, specifying the Ancillary Facility to  be canceled and the proposed cancellation date.  Such notice shall be delivered not less than five  Business Days prior to the proposed cancellation date.  Such cancellation shall be effective as of  the  proposed  cancellation  date  unless  the  Ancillary  Facility  Exposure  under  such  Ancillary  Facility has not been reduced to zero as of such date.        (g)  Additional  Information.   Each  Ancillary  Lender  shall  report in  writing  to  the  Administrative Agent (i) on the last Business Day of each month and of each fiscal quarter of the  U.S. Borrower the Ancillary Facility Exposure for each day during the preceding month or fiscal  quarter, as the case may be, for each Ancillary Facility under which it is an Ancillary Lender and  (ii) on  any  other  Business  Day  requested  by  the  Administrative  Agent,  the  Ancillary  Facility  Exposure  for  such  day  for  each  Ancillary  Facility  under  which  it  is  an  Ancillary  Lender.   In  addition, each Subsidiary Borrower to which an Ancillary Facility has been made available and  each  Ancillary Lender  shall,  upon  request  by  the  Administrative  Agent,  promptly  supply  the  Administrative Agent with any information relating to the operation of such Ancillary Facility  (including the Ancillary Facility Exposure) as the Administrative Agent may reasonably request.                                         -65-                                           





 






        (h)  Conflict with Loan Documents.  In the event of any conflict between the terms of an  Ancillary  Facility  Document  and  any  other  Loan  Document (other  than  an Ancillary Facility  Document), the terms of such other Loan Document shall govern.        (i)  Termination and Expiration of Ancillary Commitments.  On each date on which an  Ancillary  Facility  expires,  is  terminated  or  is  canceled  (in  whole  or  in  part), the  Available  Unused Commitment of the Ancillary Lender under such Ancillary Facility shall be increased by  an  amount  equal  to  the  portion  of  such  Ancillary  Facility  that  has  expired  or  been  canceled,  unless the Commitments shall have been previously terminated.      Section 2.23. Optional Increase.  (a) On the terms and subject to the conditions set forth  below,  the  U.S. Borrower  may,  at  any  time  before  the  Maturity  Date,  increase  the  Aggregate  Commitments; provided that:                (i)  after giving effect to the requested increase, the aggregate amount of the        increases in the Aggregate Commitments shall not exceed $250,000,000;               (ii)  the  Administrative  Agent  shall  have  consented to  the  requested  increase        and all required third party consents and approvals shall have been obtained;               (iii) prior  to the  date  of  any proposed  increase,  the  Aggregate  Commitments        shall not have been decreased pursuant to Section 2.09;               (iv)  each  such  increase  in  the  Aggregate  Commitments shall be  equal to        $10,000,000 or an integral multiple of $5,000,000 in excess thereof;               (v)   no Default shall have occurred and be continuing or shall occur as a result        of such increase; and               (vi)  the  Borrowers  shall  have executed  and  delivered  such  documents  and        instruments and  taken  such other actions  as  may  be reasonably  requested  by  the        Administrative Agent in connection with such increases in the Aggregate Commitments        (including  new  or  amended  notes,  any  related  fee  letters,  documents  evidencing  the        increased Commitment held by any applicable Lender, any joinder agreements related to        a New  Lender,  resolutions  regarding  the  increase  in  the  Aggregate  Commitments  and        related actions taken by the Borrowers, certified as true and correct by a Financial Officer        and legal  opinions,  all in  form and  substance  reasonably satisfactory to  the        Administrative Agent).         Any  request  under  this  Section 2.23  shall  be  submitted  by  the  U.S. Borrower  to  the  Administrative  Agent  (which  shall  promptly  forward  copies  to  the  Lenders),  specify  the  proposed effective date and amount of such increase and be accompanied by a certificate of a  Financial Officer stating that no Default exists or will occur as a result of such increase.  If any  fees are to be paid or offered in connection with such increase, the Administrative Agent (with  the  consent  of  the  U.S. Borrower) may  also  specify any  fees  offered  to  those  Lenders  (the  “Increasing  Lenders”)  which  agree  to  increase  the  amount  of  their  respective  Commitment,                                        -66-                                           





 






   which  fees  may  be  variable based upon  the amount  by which  any such Lender  is  willing to  increase the amount of its Commitment; no Lender which is not an Increasing Lender shall be  entitled to receive any such fees.  No Lender shall have any obligation, express or implied, to  offer to increase the amount of its Commitment.  Only the consent of the Administrative Agent  and  each  Increasing  Lender  shall  be  required  for  an  increase  in  the  amount  of  the  Aggregate  Commitments  pursuant  to  this  Section 2.23(a).   No  Lender  which  elects  not  to increase  the  amount of its Commitment may be replaced in respect of its existing Commitment as a result  thereof without such Lender’s written consent.        (b)  Each  Increasing  Lender  shall,  as  soon  as  practicable  after  the  U.S. Borrower  has  submitted its request under Section 2.23(a), specify the amount of the proposed increase in its  Commitment  which  it  is willing  to  offer.   To  the  extent  the  increased  Commitment  of  the  Increasing  Lenders  is  insufficient  or  there  are  no  Increasing  Lenders,  the  U.S. Borrower  may  designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to  the Administrative  Agent,  the  Issuing  Bank  and  the  Swingline  Lender  as  additional  Lenders  hereunder  in  accordance  with  this Section 2.23(b) (each  such  new  Lender  being  a “New  Lender”), which New Lender may assume all or a portion of the increase in the amount of the  Aggregate  Commitments.   The  U.S. Borrower  and  the  Administrative  Agent  shall  have  discretion  jointly  to  adjust  the  allocation  of  the  increased  aggregate principal amount  of the  Aggregate Commitments among Increasing Lenders and New Lenders.        (c)  Each New Lender designated by the U.S. Borrower and reasonably acceptable to the  Administrative  Agent,  the  Issuing  Bank  and  the  Swingline  Lender  shall  become an  additional  party hereto as a New Lender concurrently with the effectiveness of the proposed increase in the  amount of the Aggregate Commitments upon its execution of an instrument of joinder (which  may contain such modifications to this Agreement and terms and conditions relating thereto as  may be necessary to ensure that such Commitments are treated as Commitments for all purposes  under the Loan Documents), in each case prepared by the Administrative Agent and otherwise in  form and substance reasonably satisfactory to the Administrative Agent.        (d)  Subject to the foregoing, any increase in the Aggregate Commitments requested by  the U.S. Borrower shall be effective as of the date proposed by the U.S. Borrower (the “Increase  Effective Date”) and shall be in the principal amount (the “Revolving Facility Increase”) equal  to (i) the amount which the Increasing Lenders are willing to assume as increases to the amount  of  their  Commitments plus (ii) the  amount  offered  by  the  New  Lenders  with  respect  to  the  Aggregate Commitment, in either case as adjusted by the U.S. Borrower and the Administrative  Agent pursuant to the last sentence of Section 2.23(b).        (e)  The  U.S. Borrower,  each  applicable  Increasing  Lender  and  each  applicable New  Lender shall agree upon the Applicable Margin with respect to any Revolving Facility Increase  prior to 2:00 p.m., Local Time, on the Increase Effective Date, provided that if such Applicable  Margin  would  exceed  the  Applicable  Margin  with  respect  to  any  other  Revolving  Loans,  the  Applicable Margin with respect to any other Revolving Loans (including any prior Revolving  Facility Increase) shall be automatically increased to equal the Applicable Margin with respect to  such Revolving Facility Increase.                                        -67-                                           





 






        (f)  On  or  prior  to  the  Increase  Effective  Date,  with respect  to any  increase  in  the  Aggregate  Commitments,  the  Administrative  Agent  shall notify  each  Lender  of  the  amount  required to be paid by or to such Lender so that the Revolving Loans held by the Lenders on the  Increase Effective Date (before giving effect to any new Revolving Loans made on such date)  shall be held by each Lender pro rata in accordance with the Commitments of the Lenders as  adjusted  pursuant  to  the  last  sentence  of  Section 2.23(b).   Each Lender  which  is  required  to  reduce the amount of Revolving Loans held by it (each such Lender, a “Decreasing Lender”)  shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each  Decreasing  Lender  warrants  that  it  is  the legal  and  beneficial  owner  of  the  Revolving  Loans  assigned  by  it  under  this Section 2.23(f) and  that  such Revolving  Loans  are  held  by  such  Decreasing Lender free and clear of adverse claims), to each Increasing Lender and New Lender  participating  in  the  applicable  increase  in  the  Aggregate Commitments,  and  each  applicable  Increasing  Lender  and  New Lender  shall irrevocably acquire  from  the Decreasing  Lenders,  a  portion of the principal amount of the Revolving Loans of each Decreasing Lender (collectively,  the “Acquired Portion”) outstanding on the Increase Effective Date (before giving effect to any  new Revolving Loans made on such date) in an amount such that the principal amount of the  Revolving  Loans  held  by  each  applicable  Increasing  Lender,  New  Lender  and  Decreasing  Lender as of the Increase Effective Date shall be held in accordance with each such Lender’s  Applicable Adjusted Percentage (if any) as of such date.  Such assignment and acquisition shall  be effective on the Increase Effective Date automatically and without any action required on the  part of any party other than the payment by the applicable Increasing Lenders and New Lenders  to the Administrative Agent for the account of the Decreasing Lenders of an aggregate amount  equal to the Acquired Portion, which amount shall be allocated and paid by the Administrative  Agent at or before 12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata  based  upon  the  respective  reductions  in  the  principal  amount  of  the  Revolving  Loans  held  by  such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans  made on such date).  Each of the Administrative Agent and the Lenders shall adjust its records  accordingly to reflect the payment of the Acquired Portion.  The payments to be made in respect  of the Acquired Portion shall be made by the applicable Increasing Lenders and New Lenders to  the Administrative Agent in Dollars in immediately available funds at or before 11:00 a.m. on  the Increase Effective Date, such payments to be made by the applicable Increasing Lenders and  New Lenders pro rata based upon the respective increases in the amount of the Commitments  held by such Lenders on the Increase Effective Date.         To the extent any of the Revolving Loans acquired by the applicable Increasing Lenders  and  New  Lenders  from the Decreasing  Lenders  pursuant  to  Section 2.23(f) above are  Eurocurrency Loans and the Increase Effective Date is not the last day of an Interest Period for  such  Eurocurrency Loans,  the  Decreasing  Lenders  shall  be  entitled  to  compensation  from  the  Borrower as provided in Section 2.16 (as if the Borrowers had prepaid such Revolving Loans in  an amount equal to the Acquired Portion on the Increase Effective Date).      Section 2.24. Defaulting Lenders.        (a)  Adjustments.  Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is  no longer a Defaulting Lender, to the extent permitted by applicable law:                                        -68-                                           





 






                       (i)  Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the third paragraph of subsection (b) of Section 9.02.         (ii)  Reallocation of  Payments.  Any payment  of  principal,  interest,  fees  or  other amounts received by the Administrative Agent for the account of such Defaulting  Lender  (whether  voluntary  or  mandatory,  at  maturity,  pursuant  to  Section 7.01  or  otherwise), subject to Section 2.18(f), shall be applied at such time or times as may be  determined by the Administrative Agent as follows: first, to the payment of any amounts  owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the  payment  on  a  pro  rata  basis of  any  amounts  owing by  such  Defaulting Lender  to  the  Issuing Bank or Swingline Lender; third, if so determined by the Administrative Agent or  requested  by  the  Issuing  Bank,  to  Cash  Collateralize  the  Issuing  Bank’s  Fronting  Exposure  with  respect  to  such  Defaulting  Lender  in  accordance  with  Section 2.24(c);  fourth, if so requested by the U.S. Borrower (so long as no Default or Event of Default  exists), to the funding of any Loan in respect of which that Defaulting Lender has failed  to  fund  its  portion  thereof  as  required by  this  Agreement, as  determined  by  the  Administrative  Agent; fifth,  if  so  agreed  by the  Administrative  Agent  and  the  U.S. Borrower, to be held in a non-interest bearing deposit account and released in order  to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect  to  Loans  under  this  Agreement  and  (y) Cash Collateralize  the  Issuing Bank’s  future  Fronting Exposure with respect to such Defaulting Lender with respect to future Letters  of Credit issued under this Agreement, in accordance with Section 2.24(c); sixth, to the  payment of any amounts owing to the Lenders, the Issuing Bank or the Swingline Lender  as a result of any judgment of a court of competent jurisdiction obtained by any Lender,  the Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of  such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long  as no Default or Event of Default exists, to the payment of any amounts owing to the  U.S. Borrower as a result of any judgment of a court of competent jurisdiction obtained  by  the U.S. Borrower  against  such  Defaulting  Lender  as  a  result  of such  Defaulting  Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting  Lender or  as otherwise directed by  a  court  of competent  jurisdiction; provided that  if  (x) such payment is a payment of the principal amount of any Loans or LC Disbursement  in respect of which such Defaulting Lender has not fully funded its appropriate share, and  (y) such Loans were made or the related Letters of Credit were issued at a time when the  conditions  set forth  in  Section 4.02  were  satisfied  or waived,  such  payment  shall  be  applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting  Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC  Disbursements owed to, such Defaulting Lender until such time as all Loans and funded  and  unfunded  participations  in  Letters  of  Credit  and  Swingline  Loans  are  held by  the  Lenders pro  rata in  accordance with their  Applicable  Adjusted  Percentages without  giving effect to Section 2.24(a)(iv).  Any payments, prepayments or other amounts paid  or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a  Defaulting Lender or to post Cash Collateral pursuant to this Section 2.24(a)(ii) shall be  deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably  consents hereto.                                  -69-                                     





 






                      (iii) Certain Fees.  Each Defaulting Lender (A) shall be entitled to receive a  facility fee under Section 2.12(a) for any period during which that Lender is a Defaulting  Lender only to the extent allocable to the sum of (1) the outstanding principal amount of  Revolving Loans funded by it, and (2) its Applicable Adjusted Percentage of the stated  amount of Letters of Credit for which it has provided Cash Collateral satisfactory to the  Issuing Bank pursuant to Section 2.24(c) and (B) shall be limited in its right to receive  Letter of Credit fees as provided in Section 2.12(b) and Section 2.18(g).         (iv)  Reallocation of Participations to Reduce Fronting Exposure.  All or any  part of such Defaulting Lender’s Applicable Adjusted Percentage of all LC Exposure and  all Swingline Exposure shall automatically (effective on the day such Lender becomes a  Defaulting Lender) be reallocated among the Non-Defaulting Lenders in accordance with  their  respective  Applicable  Adjusted  Percentages  (calculated  without  regard  to  such  Defaulting Lender’s Commitment) but only to the extent that (A) the conditions set forth  in  Section 4.02  are  satisfied at  such time  (and,  unless  the  U.S. Borrower  shall  have  otherwise  notified  the  Administrative  Agent  at  the  time,  the  U.S. Borrower  shall  be  deemed  to  have  represented  and  warranted  that  such  conditions  are  satisfied  at such  time), and (B) such reallocation does not cause the sum of (I) the outstanding principal  amount of all Revolving Loans made by such Lender at such time and (II) such Lender’s  Total  Lender  Risk  Participation  at  such  time  to  exceed  such  Lender’s Commitment  at  such time.  Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or  release of any claim of any party hereunder against a Defaulting Lender arising from that  Lender  having  become  a  Defaulting  Lender, including  any  claim  of  a Non-Defaulting  Lender as a result of such Non-Defaulting Lender’s increased exposure following such  reallocation.         (v)   Cash  Collateral;  Prepayment  of  Swingline  Loans.   If  the  reallocation  described  in  clause (iv)  above  cannot,  or  can  only  partially, be  effected,  the  U.S. Borrower shall, without prejudice to any right or remedy available to it hereunder or  under law, immediately following notice by the Administrative Agent, (x) first, prepay  Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure, and  (y) second,  to  the  extent  permitted  by  the Senior  Notes  Documents,  Cash  Collateralize  such Defaulting Lender’s Applicable Percentage of all LC Exposure (after giving effect  to  any  partial  reallocation  pursuant  to  clause (iv)  above) in  accordance  with  Section 2.24(c).         (vi)  Termination of  Commitment.   The  U.S. Borrower  may  terminate  the  unused amount of the Commitment of a Defaulting Lender upon not less than three (3)  Business Days’ prior notice to the Administrative Agent (which will promptly notify the  Lenders thereof), and in such event the provisions of clause (ii) above will apply to all  amounts thereafter paid by the U.S. Borrower for the account of such Defaulting Lender  under this Agreement (whether on account of principal, interest, fees, indemnity or other  amounts); provided that (x) no Event of Default shall have occurred and be continuing  and (y) such termination will not be deemed to be a waiver or release of any claim the  U.S. Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any  Lender may have against such Defaulting Lender.                                  -70-                                     





 






        (b)  Defaulting  Lender  Cure.   If the  U.S. Borrower,  the  Administrative  Agent,  the  Issuing Bank and the Swingline Lender agree in writing in their sole discretion that a Defaulting  Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so  notify the parties hereto, whereupon as of the effective date specified in such notice and subject  to any conditions set forth therein (which may include arrangements with respect to any Cash  Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans  of the other Lenders or take such other actions as the Administrative Agent may determine to be  necessary to cause the Loans and funded and unfunded participations in Letters of Credit and  Swingline  Loans  to  be  held  on  a  pro  rata  basis by  the  Lenders  in  accordance  with  their  Applicable Adjusted Percentages (without giving effect to Section 2.24(a)(iv)), whereupon such  Lender  will  cease  to  be  a  Defaulting Lender; provided that  no  adjustments  will be  made  retroactively with respect to fees accrued or payments made by or on behalf of the U.S. Borrower  while  that  Lender  was  a  Defaulting  Lender;  and provided, further, that except  to the extent  otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender  to Lender will constitute a waiver or release of any claim of any party hereunder arising from  that Lender’s having been a Defaulting Lender.        (c)  Cash  Collateral  Provisions.   (i) At  any  time  that there  shall exist  a  Defaulting  Lender, within one (1) Business Day after the written request of the Administrative Agent or the  Issuing Bank (with a copy to the Administrative Agent), to the extent permitted by the Senior  Notes Documents, the Borrowers shall deliver to the Administrative Agent Cash Collateral in an  amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.24(a)(iv) and  any Cash Collateral provided by the Defaulting Lender).  In addition, as a condition to issuing  any Letter of Credit, to the extent permitted by the Senior Notes Documents, the Issuing Bank  may  require  that  the  U.S. Borrower  deliver  to  the  Administrative  Agent  Cash  Collateral  in  an  amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.24(a)(iv) and  any Cash Collateral provided by the Defaulting Lender).        (ii) All Cash Collateral delivered pursuant to this Section 2.16(c) shall be maintained in  blocked,  non-interest  bearing  deposit  accounts  with  the  Administrative  Agent.   The  U.S. Borrower  (to  the extent  permitted  by  the  Senior  Notes  Documents),  and  to  the  extent  provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the  control of) the Administrative Agent, for the benefit of the Administrative Agent and the Issuing  Bank, and agrees to maintain, a first priority security interest in all such cash, deposit accounts  and all balances therein, and all other property so provided as collateral pursuant hereto, and in  all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral  may  be  applied  pursuant  to  clause (iii)  below.   If  at  any  time  the  Administrative  Agent  determines  that  Cash  Collateral is  subject to any  right or  claim  of  any  Person  other  than  the  Administrative Agent and the Issuing Bank as herein provided, or that the total amount of such  Cash  Collateral  is  less  than  the  applicable  Fronting Exposure  and  other  obligations  secured  thereby,  the  U.S. Borrower (to the  extent  permitted  by the  Senior  Notes  Documents)  or the  relevant  Defaulting  Lender  will,  within  one  (1) Business  Day  after  the  request  of  the  Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in  an amount  sufficient  to  eliminate  such  deficiency  (after  giving  effect to  any  Cash Collateral  provided by the Defaulting Lender).                                        -71-                                           





 






       (iii) Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement,  Cash  Collateral provided under any of this Section 2.24 in respect of Letters of Credit, shall be held  and applied  to  the  satisfaction  of  the  specific  LC  Exposure,  obligations  to  fund  participations  therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued  on such obligation) and other obligations for which the Cash Collateral was so provided, prior to  any other application of such property as may be provided for herein.       (iv)  Cash  Collateral  (or  the  appropriate  portion  thereof)  provided  to  reduce  Fronting  Exposure or other obligations shall no longer be required to be held as Cash Collateral pursuant  to this Section 2.24, and shall promptly be released to the applicable Borrower, following (A) the  elimination  of  the  applicable  Fronting  Exposure  or  other  obligations  giving rise  thereto  (including  by  the  termination  of  Defaulting  Lender  status  of  the applicable  Lender  (or,  as  appropriate, its assignee)), or (B) the Administrative Agent’s good faith determination and each  Issuing  Bank’s  good  faith  determination that  there  exists  excess  Cash  Collateral; provided,  however, (x) that Cash Collateral furnished by or on behalf of a Borrower shall not be released  during  the  continuance  of  a  Default  (and,  following  the  application  as  provided  in  clause (iii)  above, may be otherwise applied in accordance with Section 7.01), and (y) the Person providing  Cash Collateral and the Issuing Bank may agree that Cash Collateral shall not be released but  instead held to support future anticipated Fronting Exposure or other obligations.      Section 2.25. U.S. Borrower  Guaranty.   The  U.S. Borrower  shall  absolutely  and  unconditionally  guarantee  all  Obligations  of  each  Subsidiary  Borrower pursuant  to  the  U.S. Borrower Guaranty.  The U.S. Borrower agrees to execute and deliver such agreements and  documents  requested  by  the Administrative  Agent  in  connection  with  the  U.S. Borrower  Guaranty and such guarantee obligation.                                    ARTICLE III                                                                  REPRESENTATIONS AND WARRANTIES         The Borrowers represent and warrant to the Lenders and the Administrative Agent that:      Section 3.01. Organization;  Powers.   Each  of  the  U.S. Borrower  and  its  Subsidiaries  is  duly organized, validly existing and in good standing (or, if applicable in a foreign jurisdiction,  enjoys the equivalent status under the laws of any jurisdiction of organization outside the United  States) under the laws of the jurisdiction of its organization, has all requisite power and authority  to carry on its business as now conducted and, except where the failure to do so, individually or  in  the  aggregate,  could  not  reasonably  be  expected  to  result  in  a  Material  Adverse  Effect,  is  qualified to do business in, and is in good standing in, every jurisdiction where such qualification  is  required.   No  Subsidiary  is  a  party  to,  or  otherwise  subject  to,  any  legal  restriction  or  any  agreement (other than customary limitations imposed by corporate law statutes) restricting the  ability of such Subsidiary to pay dividends out of profits or make any other similar distributions  of profits to the U.S. Borrower or any of its Subsidiaries that owns outstanding shares of capital  stock or similar equity interests of such Subsidiary. No Borrower is an EEA Financial Institution  or a Covered Entity.                                        -72-                                           





 






      Section 3.02. Authorization;  Enforceability.   The  Transactions  are  within  each  Borrower’s  corporate  powers  and  have been  duly  authorized  by  all  necessary  corporate,  stockholder and other action.  Each Loan Document has been duly executed and delivered by  each  Borrower  party  thereto  and  constitutes  a  legal,  valid  and  binding  obligation  of  each  Borrower,  enforceable  in  accordance  with  its  terms,  subject  to  applicable bankruptcy,  insolvency, reorganization, moratorium or  other  laws  affecting  creditors’  rights generally  and  subject to general principles of equity, regardless of whether considered in a proceeding in equity  or at law.      Section 3.03. Governmental Approvals; No Conflicts.  The Transactions (a) do not require  any consent or approval of, registration or filing with, or any other action by, any Governmental  Authority, except such as have been obtained or made and are in full force and effect, (b) will not  violate  any  applicable  law or regulation or  the  charter,  by-laws  or other  organizational  documents  of  the  U.S. Borrower  or  any  of  its  Subsidiaries or  any  order  of  any  Governmental  Authority, (c) will  not  violate  or result  in  a  default  under any  indenture,  agreement  or  other  instrument binding upon the U.S. Borrower or any of its Subsidiaries or its assets, or give rise to  a  right  thereunder  to require  any  payment  to  be  made  by  the  U.S. Borrower  or any  of  its  Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the  U.S. Borrower or any of its Subsidiaries.      Section 3.04. Financial Condition; No Material Adverse Change.  (a) The U.S. Borrower  has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,  stockholders equity and cash flows (i) as of and for the fiscal year ended June 1, 2019, reported  on  by  Ernst  & Young  LLP,  independent  public  accountants,  and (ii) as  of  and  for  the  fiscal  quarter  and  the  portion  of  the  fiscal  year  ended June 1,  2019,  certified  by  its  chief  financial  officer.  Such financial statements present fairly, in all material respects, the financial position  and results of operations and cash flows of the U.S. Borrower and its consolidated Subsidiaries  as  of  such  dates  and  for  such  periods  in  accordance  with  GAAP,  subject to year-end  audit  adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)  above.        (b)  Since June  1,  2019 there  has  been  no  material  adverse  change  in  the  business,  assets,  operations,  prospects  or  condition,  financial or  otherwise,  of  the  U.S. Borrower  and  its  Subsidiaries, taken as a whole.      Section 3.05. Properties.   (a) Each  of  the  U.S. Borrower  and  its  Subsidiaries  has  good  title to, or valid leasehold interests in, all its real and personal property material to its business,  except for minor defects in title that do not interfere with its ability to conduct its business as  currently conducted or to utilize such properties for their intended purposes.        (b)  Each  of the U.S. Borrower  and  its  Subsidiaries  owns,  or  is licensed  to  use,  all  trademarks, tradenames,  copyrights,  patents  and  other  intellectual  property  material  to  its  business, and the use thereof by the U.S. Borrower and its Subsidiaries does not infringe upon  the rights  of  any  other  Person,  except  for  any such infringements  that, individually  or  in  the  aggregate, could not reasonably be expected to result in a Material Adverse Effect.                                        -73-                                           





 






      Section 3.06. Litigation  and  Environmental  Matters.  (a) There  are  no  actions, suits or  proceedings  by or  before  any  arbitrator  or  Governmental  Authority  pending  against  or,  to  the  knowledge of the U.S. Borrower, threatened against or affecting the U.S. Borrower or any of its  Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that,  if adversely determined, could reasonably be expected, individually or in the aggregate, to result  in  a  Material  Adverse  Effect  (other  than the Disclosed  Matters)  or  (ii) that  involve  this  Agreement or the Transactions.        (b)  Except for the Disclosed Matters and except with respect to any other matters that,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse  Effect, neither the U.S. Borrower nor any of its Subsidiaries (i) has failed to comply with any  Environmental Law or to obtain, maintain or comply with any permit, license or other approval  required under any Environmental Law, (ii) has become subject to any Environmental Liability,  (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows  of any basis for any Environmental Liability.        (c)  Since  the  date  of  this  Agreement,  there  has  been  no  change  in  the  status  of  the  Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased  the likelihood of, a Material Adverse Effect.      Section 3.07. Compliance with Requirements of Law and Contractual Obligations.  Each  of  the  U.S. Borrower  and  its  Subsidiaries  is in  compliance  with  all  Requirements  of  Law  and  Contractual  Obligations  applicable  to  it  or  its  property  and  all  indentures,  except  where  the  failure to do so, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  No Default has occurred and is continuing.      Section 3.08. Investment  Company  Status.   Neither  the  U.S. Borrower  nor  any  of  its  Subsidiaries  is  an  “investment  company”  as  defined  in,  or subject  to  regulation  under,  the  Investment Company Act of 1940.      Section 3.09. Taxes.  Each of the U.S. Borrower and its Subsidiaries has timely filed or  caused to be filed all Tax returns and reports required to have been filed and has paid or caused  to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in  good faith by appropriate proceedings and for which the U.S. Borrower or such Subsidiary, as  applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do  so could not reasonably be expected to result in a Material Adverse Effect.      Section 3.10. ERISA.  No ERISA Event has occurred or is reasonably expected to occur  that,  when  taken  together  with  all  other  such  ERISA  Events  for  which  liability  is  reasonably  expected to occur, could reasonably be expected to result in a Material Adverse Effect.      Section 3.11. Disclosure.  (a) The  U.S. Borrower  has  disclosed to  the  Lenders  all  agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries  is subject,  and  all  other  matters  known  to  it,  that, individually or  in  the  aggregate, could  reasonably  be  expected  to  result  in  a  Material  Adverse  Effect.   None  of  the  reports,  financial  statements, certificates or other information furnished by or on behalf of the U.S. Borrower to the                                        -74-                                           





 






   Administrative  Agent  or  any  Lender  in  connection  with  the  negotiation  of  this  Agreement  or  delivered hereunder (as modified or supplemented by other information so furnished) contains  any  material  misstatement  of  fact  or  omits to  state  any  material  fact necessary  to  make  the  statements  therein,  in the  light  of the  circumstances  under  which  they  were  made,  not  misleading; provided that,  with  respect  to  projected  financial  information,  the  U.S. Borrower  represents  only  that  such  information  was  prepared  in good  faith  based  upon  assumptions  believed to be reasonable at the time.        (b)  All  of  the  information  included  in  each Beneficial  Ownership  Certification most  recently delivered to the Lenders, if any, is true and correct.      Section 3.12. Use of Advances.  Each Borrower will use the proceeds of the Advances for  refinancing  existing  indebtedness,  working capital,  its  general  corporate purposes  and  acquisitions (including Permitted  Acquisitions).   No  Borrower  nor  any  of  their  respective  Subsidiaries  extends  or  maintains,  in  the  ordinary  course  of  business,  credit  for  the  purpose,  whether  immediate,  incidental,  or ultimate,  of  buying or carrying  margin stock  (within  the  meaning of Regulations T, U or X of the Board), and no part of the proceeds of any Advance  will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying  any such  margin  stock  or  maintaining  or  extending credit  to  others  for  such  purpose  or  in  violation of any applicable law or regulation (including without limitation Regulations T, U or X  of  the  Board).   After  applying  the  proceeds  of each Advance,  such  margin stock  will  not  constitute more than  25%  of  the  value  of  the  assets (either  of  any  Borrower  alone  or  of  the  Borrowers  and  their  respective  Subsidiaries  on  a  consolidated  basis)  that  are  subject  to  any  provisions  of  this  Agreement  that  may  cause  the  Advances to  be deemed  secured,  directly  or  indirectly, by such margin stock.      Section 3.13. Labor Matters.  There are no labor controversies pending or, to the best of  the U.S. Borrower’s knowledge, threatened against the U.S. Borrower or any Subsidiary, which  could have a Material Adverse Effect.      Section 3.14. Anti-Corruption  Laws;  Anti-Money  Laundering  Laws  and  Sanctions   (a) None  of  (i) any Borrower,  any  Subsidiary or,  to  the knowledge  of any Borrower  or  such  Subsidiary,  any  of  their  respective directors,  officers, employees  or  Affiliates,  or  (ii) to  the  knowledge of any Borrower, any agent or representative of any Borrower or any Subsidiary that  will act in any capacity in connection with or benefit from the credit facility established hereby,  (A) is a Sanctioned Person or currently the subject or target of any Sanctions, (B) has its assets  located in a Sanctioned Country, (C) is under administrative, civil or criminal investigation for  an  alleged violation of, or  received  notice  from  or  made  a  voluntary  disclosure  to  any  governmental  entity  regarding  a  possible  violation  of, Anti-Corruption  Laws,  Anti-Money  Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti- Corruption Laws or Anti-Money Laundering Laws, or (D) directly or indirectly derives revenues  from investments in, or transactions with, Sanctioned Persons.        (b)  Each Borrower and  its Subsidiaries  has  implemented  and  maintains  in  effect  policies  and  procedures  designed  to  ensure  compliance  by each Borrower  and  its  Subsidiaries                                        -75-                                           





 






   and their respective directors, officers, employees, agents and Affiliates with all Anti-Corruption  Laws, Anti-Money Laundering Laws and applicable Sanctions.          (c)  Each Borrower  and  its  Subsidiaries,  and  to  the  knowledge  of each Borrower,  director, officer, employee, agent and Affiliate of such Borrower and each such Subsidiary, is in  compliance  with all Anti-Corruption  Laws, Anti-Money  Laundering  Laws in  all material  respects and applicable Sanctions.        (d)  No proceeds of any extensions of credit have been used, directly or indirectly, by  any Borrower,  any  of  its  Subsidiaries  or  any  of its or  their  respective  directors,  officers,  employees and agents in violation of Section 5.08.      Section 3.15. Solvency.   The  U.S. Borrower  and  its Subsidiaries  taken  as  a  whole  are  Solvent  and  after  the execution,  delivery  and  consummation of  the  Loan  Documents on  the  Restatement Effective Date, will be Solvent.      Section 3.16. Insurance.  The properties of the U.S. Borrower and each of its Subsidiaries  are insured with financially sound and reputable insurance companies that, except as set forth on  Schedule 3.16,  are  not Affiliates of  the  U.S. Borrower  or  any  of  its  Subsidiaries,  in  such  amounts, with such deductibles and covering such risks as are customarily carried by companies  engaged  in similar businesses  and  owning similar  properties in  localities  where  the  U.S. Borrower and its Subsidiaries operate.                                    ARTICLE IV                                                                            CONDITIONS      Section 4.01. Restatement Effective Date.  This Agreement shall become effective on and  as of the date on which each of the following conditions is satisfied (or waived in accordance  with Section 9.02):               (a)   The Administrative Agent (or its counsel) shall have received from each        Borrower and the Lenders either (i) a counterpart of this Agreement signed on behalf of        such party or (ii) written evidence satisfactory to the Administrative Agent (which may        include  telecopy  transmission  of  a  signed signature  page  of  this  Agreement)  that  such        party has signed a counterpart of this Agreement.               (b)   The  Administrative  Agent  shall  have  received  such  documents  and        certificates as the Administrative Agent or its counsel may reasonably request relating to        the organization, existence and good standing of the Borrowers, the authorization of the        Transactions and any other legal matters relating to the Borrowers, this Agreement or the        Transactions, all in form and substance satisfactory to the Administrative Agent and its        counsel.               (c)   The  Administrative  Agent  shall have  received  a certificate, dated  the        Restatement Effective Date and signed by the President, a Vice President or a Financial                                       -76-                                           





 






                Officer of the U.S. Borrower, confirming that (i) the representations and warranties of the  Borrowers set forth in the Loan Documents are true and correct in all material respects,  except  for  any  representation  and  warranty  that by  its  express  terms is  qualified  by  materiality or reference to Material Adverse Effect, in which case such representation and  warranty shall be true and correct in all respects, on and as of the Restatement Effective  Date, (ii) after giving effect to the amendments contained herein, no Default has occurred  and is continuing, and (iii) the Borrowers have satisfied each of the conditions set forth in  Section 4.01, Section 4.02 and Section 4.03, as applicable.         (d)   The U.S.  Borrower  shall  have  delivered  to  the  Administrative  Agent  a  certificate, in form and substance satisfactory to the Administrative Agent, and certified  as  accurate  by  a Financial  Officer  of  the  U.S.  Borrower,  that after giving  effect  to  the  Transactions on the Restatement Effective Date, the U.S. Borrower and each Subsidiary  thereof is each Solvent.         (e)   The Administrative Agent shall have received all fees and other amounts  due and payable on or prior to the Restatement Effective Date, including, (i) to the extent  invoiced,  reimbursement  or  payment  of  all  out-of-pocket  expenses required  to  be  reimbursed or paid by the U.S. Borrower hereunder and (ii) all fees payable pursuant to  the Fee Letter.          (f)  The  Administrative  Agent  shall  have  received  a  favorable  written  legal  opinion  of  (i) counsel  to  the  Borrowers,  addressing  such  matters  as  the  Administrative  Agent  may  request,  and  (ii) Chapman and Cutler  LLP,  special counsel to  the  Administrative  Agent,  addressing  the  enforceability  of  the  Loan  Documents,  each  of  which shall be in form and substance reasonably satisfactory to the Administrative Agent.         (g)   All  governmental  and  third  party  consents  and  approvals  necessary in  connection  with  this  Agreement  and  the  other Loan  Documents  and  the  transactions  contemplated  hereby  shall  have  been  obtained  and  be  in  full  force  and  effect;  and  the  Administrative Agent shall have received a certificate, dated the Restatement Effective  Date  and  signed  by  the President,  a  Vice President  or a  Financial  Officer  of  the  U.S. Borrower with respect to the foregoing.         (h)   The  Administrative  Agent  shall  have  received,  in  form  and  substance  reasonably  satisfactory  to the  Administrative  Agent, (i) an unaudited consolidated  balance sheet of the U.S. Borrower and its Subsidiaries as of June 1, 2019 and related  unaudited  interim  statements  of  income  and  retained earnings,  and  (ii) projections  prepared by management of the U.S. Borrower, of balance sheets, income statements and  cash  flow  statements  on  an  annual  basis  for  each  year following  the  Restatement  Effective Date during the term of this Agreement.          (i)  The Administrative Agent shall have received the results of a Lien search  (including a search as to judgments, pending litigation, bankruptcy, tax and intellectual  property matters), in form and substance reasonably satisfactory thereto, made against the  Borrowers  under  the  Uniform  Commercial  Code  (or  applicable  judicial  docket)  as  in                                  -77-                                     





 






         effect in each jurisdiction in which filings or recordations under the Uniform Commercial        Code  should  be  made  to  evidence  or  perfect  security  interests  in  all  assets  of  such        Borrower, indicating among other things that the assets of each such Borrower are free        and clear of any Lien (except for Permitted Encumbrances).                (j)  The  Administrative  Agent  shall have  received  a  Notice  of  Account        Designation specifying the account or accounts to which the proceeds of any Loans made        on or after the Restatement Effective Date are to be disbursed.               (k)   Each Borrower shall have provided to the Administrative Agent and the        Lenders the documentation and other information requested by the Administrative Agent        in  order  to  comply  with  requirements  of  the  Patriot  Act,  applicable  “know your        customer” and anti-money laundering rules and regulations.   The  Administrative  Agent  shall  notify  the  Borrowers  and  the Lenders  of  the  Restatement  Effective Date, and such notice shall be conclusive and binding.      Section 4.02.  Each Credit Event.  The obligation of each Lender to make a Loan on the  occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter  of Credit, is subject to the satisfaction of the following conditions:               (a)   The representations and warranties of the Borrowers set forth in the Loan        Documents shall be true and correct in all material respects, except for any representation        and warranty that by its express terms is qualified by materiality or reference to Material        Adverse Effect, in which case such representation and warranty shall be true and correct        in  all  respects, on  and  as  of  the  date  of such  Borrowing  or  the date  of  issuance,        amendment, renewal or extension of such Letter of Credit, as applicable, provided that        the  representations  and  warranties  in  Section 3.04(b)  shall  be  excluded  from  the        representations and warranties made under this Section 4.02(a).               (b)   At the time of and immediately after giving effect to such Borrowing or        the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no        Default shall have occurred and be continuing.   Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall  be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to  the matters specified in paragraphs (a) and (b) of this Section.      Section 4.03. Credit Events Relating to Subsidiary Borrowers.  The obligations of (x) the  Lenders  to  make  Loans  to  any  Subsidiary  that  becomes  a  Subsidiary  Borrower  after  the  Restatement Effective Date and (y) any Ancillary Lender to make available an Ancillary Facility  to  such  Subsidiary  Borrower,  in  each  case  to  the  extent  designated  in  accordance  with  Section 2.20, are subject to the satisfaction of the following conditions (which are in addition to  the conditions contained in Sections 4.01 and 4.02):                                         -78-                                           





 






               (a)   the Administrative Agent (or its counsel) shall have received (i) the U.S.        Borrower  Guaranty  and  (ii) a  Subsidiary  Borrower  Agreement  with  respect  to  such        Subsidiary Borrower, in each case duly executed by all parties thereto;                (b)   such Subsidiary Borrower shall have provided to the Administrative Agent        and  the  Lenders  the  documentation  and  other  information  requested  by  the        Administrative Agent in order to comply with requirements of the Patriot Act, applicable        “know your customer” and anti-money laundering rules and regulations; and               (c)   the Administrative Agent shall have received such documents (including a        legal  opinion  substantially  in  the  form  of  Exhibit G  if  such  Subsidiary  Borrower  is  a        Domestic  Subsidiary,  or  a legal  opinion  in  form  and  substance acceptable  to  the        Administrative  Agent  if  such Subsidiary  Borrower  is  a  Foreign Subsidiary)  and        certificates as the Administrative Agent or its counsel may reasonably request relating to        the  formation,  existence  and  good  standing  of  such  Subsidiary  Borrower,  the        authorization  of  Borrowings  as  they  relate  to  such  Subsidiary  Borrower and  any  other        legal matters relating to such Subsidiary Borrower or its Subsidiary Borrower Agreement,        all  in  form  and substance  reasonably  satisfactory  to  the  Administrative  Agent  and  its        counsel.                                     ARTICLE V                                                                      AFFIRMATIVE COVENANTS         Until the Commitments have expired or been terminated and the principal of and interest  on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit  shall  have expired  or  terminated  and  all LC Disbursements  shall  have  been  reimbursed,  the  U.S. Borrower covenants and agrees with the Lenders that:      Section 5.01. Financial Statements and  Other  Information.   The  U.S. Borrower  will  furnish to the Administrative Agent and each Lender:               (a)   A  copy  of  the  U.S. Borrower’s  audited  consolidated balance  sheet  and        related statements of operations, stockholders’ equity and cash flows as of the end of and        for such year, setting forth in each case in comparative form the figures for the previous        fiscal  year,  all  reported  on  by Ernst  &  Young  LLP  or  other  independent  public        accountants  of  recognized  national  standing  (without  a  “going  concern”  or  like        qualification or exception and without any qualification or exception as to the scope of        such audit) to the effect that such consolidated financial statements present fairly in all        material respects the financial condition and results of operations of the U.S. Borrower        and  its  consolidated Subsidiaries  on  a  consolidated  basis  in  accordance  with  GAAP        consistently  applied  (but  subject to  the  last  sentence  of  Section 1.04),  as soon as        available, but in any event within the earlier of (i) 90 days after the end of each fiscal        year of the U.S. Borrower or (ii) five (5) Business Days after the filing of such financial        statements with the SEC;                                        -79-                                           





 






               (b)   A  copy  of  the  U.S. Borrower’s  consolidated  balance  sheet  and  related        statements of operations and cash flows as of the end of and for such fiscal quarter and        the then elapsed portion of the fiscal year, setting forth in each case in comparative form        the figures for the corresponding period or periods of (or, in the case of the balance sheet,        as of the end of) the previous fiscal year, all certified by one of its Financial Officers as        presenting fairly in all material respects the financial condition and results of operations        of  the  U.S. Borrower and  its  consolidated  Subsidiaries  on a  consolidated  basis  in        accordance  with  GAAP  consistently  applied  (but  subject  to  the  last  sentence  of        Section 1.04), subject to normal year-end audit adjustments and the absence of footnotes,        as soon as available, but in any event within the earlier of (i) within 45 days after the end        of  each  of  the first  three  fiscal  quarters  of each  fiscal  year  of  the  U.S. Borrower  or        (ii) five (5) Business Days after the filing of such financial statements with the SEC;               (c)   concurrently with any delivery of financial statements under clause (a) or        (b) above, a certificate of a Financial Officer of the U.S. Borrower, in a form acceptable        to  the  Administrative  Agent (each,  a “Compliance  Certificate”),  (i) certifying  as  to        whether a  Default  has  occurred  and,  if  a  Default has  occurred,  specifying  the  details        thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth        reasonably detailed calculations demonstrating compliance with Sections 6.10 and 6.11        and (iii) stating whether any change in GAAP or in the application thereof has occurred        since the date of the audited financial statements referred to in Section 3.04 and, if any        such  change  has  occurred,  specifying  the  effect  of  such  change  on  the  financial        statements accompanying such certificate; and               (d)   promptly following any request therefor, such other information regarding        the  operations,  business  affairs  and  financial  condition  of  the  U.S. Borrower  or  any        Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent        or any Lender may reasonably request.   All  financial  statements  referred to in  Section 5.01(a)  and  (b)  shall  be  deemed  to  have  been  delivered upon the filing of such financial statements by the U.S. Borrower through the SEC’s  EDGAR system or publication by the U.S. Borrower of such financial statements on its website  and the receipt by the Administrative Agent of electronic notice from the U.S. Borrower with a  link to such financial statements.      Section 5.02. Notices  of  Material  Events.   The  U.S. Borrower  will  furnish to the  Administrative Agent and each Lender prompt written notice of the following:               (a)   the occurrence of any Default;               (b)   the filing or commencement of any action, suit or proceeding by or before        any arbitrator or Governmental Authority against or affecting the U.S. Borrower or any        Affiliate thereof that, if adversely determined, could reasonably be expected to result in a        Material Adverse Effect;                                         -80-                                           





 






               (c)   the occurrence of any ERISA Event that, alone or together with any other        ERISA Events that have occurred, could reasonably be expected to result in liability of        the U.S. Borrower and its Subsidiaries in an aggregate amount exceeding $1,000,000; and               (d)   any other development that results in, or could reasonably be expected to        result in, a Material Adverse Effect.   Each  notice delivered  under  this  Section shall  be  accompanied  by  a  statement  of  a  Financial  Officer or other executive officer of the U.S. Borrower setting forth the details of the event or  development  requiring  such  notice  and any  action  taken  or  proposed  to  be  taken with  respect  thereto.      Section 5.03. Existence;  Conduct  of  Business.   The  U.S. Borrower  will, and  will  cause  each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and  keep in full force and effect its legal existence and the rights, licenses, permits, privileges and  franchises material to the conduct of its business; provided that the foregoing shall not prohibit  any merger, consolidation, liquidation or dissolution permitted under Section 6.03.      Section 5.04. Payment of Obligations.  The U.S. Borrower will, and will cause each of its  Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a  Material  Adverse  Effect  before  the  same shall become  delinquent  or  in  default,  except  where  (a) the validity or amount thereof is being contested in good faith by appropriate proceedings,  (b) the  U.S. Borrower  or  such  Subsidiary  has  set  aside  on  its  books  adequate  reserves  with  respect  thereto  in  accordance  with  GAAP  and  (c) the  failure  to  make  payment  pending  such  contest could not reasonably be expected to result in a Material Adverse Effect.      Section 5.05. Maintenance of  Properties;  Insurance.   The U.S. Borrower  will,  and  will  cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its  business in  good  working order  and  condition,  ordinary  wear  and  tear  excepted,  and  (b) maintain,  with  financially  sound  and  reputable  insurance  companies,  insurance  in  such  amounts and against such risks as are customarily maintained by companies engaged in the same  or  similar  businesses  operating  in  the  same  or  similar  locations,  which  may  include  self-insurance, if determined by the Borrower to be reasonably prudent.      Section 5.06. Books  and  Records;  Inspection  Rights.   The  U.S. Borrower  will,  and  will  cause each of its Subsidiaries to, keep proper books of record and account in which full, true and  correct entries are made of all dealings and transactions in relation to its business and activities.   The  U.S. Borrower  will,  and  will  cause  each  of  its  Subsidiaries  to,  permit  any  representatives  designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and  inspect its properties, to examine and make extracts from its books and records, and to discuss its  affairs,  finances  and  condition  with  its  officers and independent  accountants,  all  at  such  reasonable times and as often as reasonably requested.      Section 5.07. Compliance.   The  U.S. Borrower  will,  and  will  cause  each  of  its  Subsidiaries to, comply with all Contractual Obligations and Requirements of Law applicable to                                        -81-                                           





 






   it or its property, except where the failure to do so, individually or in the aggregate, could not  reasonably be expected to result in a Material Adverse Effect.      Section 5.08. Use  of  Proceeds  and Letters  of  Credit.   The proceeds  of  the  Loans  and  Letters  of  Credit  will  be  used  only  to (i) refinance  certain  existing  indebtedness  of  the  U.S. Borrower,  (ii) provide  for  working  capital and  general  corporate  purposes  of  the  U.S. Borrower  and  its  Subsidiaries  in  the ordinary  course  of  business,  and  (iii) provide  for  Permitted Acquisitions.  No part of the proceeds of any Loan or any Letter of Credit will be used,  whether directly or indirectly, for any purpose that entails a violation of any of the Regulations  of the Board, including Regulations T, U and X.      Section 5.09. Additional  Covenants.   If  at  any  time  the  U.S. Borrower  or  any  of its  Subsidiaries  shall  enter  into  or  be  a  party  to  any  instrument or  agreement,  including  all  such  instruments  or agreements  in  existence  as  of  the  date  hereof  and  all  such  instruments  or  agreements entered into after the date hereof, relating to or amending any provisions applicable  to  any of  its  Indebtedness  which  in the  aggregate,  together  with  any  related  Indebtedness,  exceeds $30,000,000, which includes covenants or defaults not substantially provided for in this  Agreement or more favorable to the lender or lenders thereunder than those provided for in this  Agreement, then the U.S. Borrower shall promptly so advise the Administrative Agent and the  Lenders.  Thereupon, if the Administrative Agent or the Required Lenders shall request, upon  notice  to  the U.S. Borrower,  the Administrative  Agent  and  the  Lenders  shall  enter  into an  amendment  to  this  Agreement  or  an  additional  agreement  (as  the  Administrative  Agent  may  request),  providing  for  substantially  the  same  covenants  and  defaults as  those  provided  for in  such  instrument or  agreement  to the  extent  required  and  as  may be  selected by  the  Administrative Agent.      Section 5.10. Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and  Sanctions.  The Borrowers will maintain in effect, and enforce policies and procedures designed  to ensure compliance by  the  Borrowers,  their  Subsidiaries,  and  their respective directors,  officers,  employees and  agents  with  all Anti-Corruption Laws,  Anti-Money  Laundering  Laws  and applicable Sanctions.      Section 5.11. Compliance  with Beneficial  Ownership  Regulation.  Each  Borrower  will,  promptly  following  any request therefor,  deliver  information  and  documentation  reasonably  requested  by  the  Administrative  Agent  or  any  Lender  for  purposes  of   compliance with the  Beneficial Ownership Regulation.      Section 5.12. Post-Closing Matters.  Within ten (10) Business Days of the Restatement  Effective Date, the Administrative Agent shall have received certified copies of amendments to  the Senior Notes Documents that are maturing after January 3, 2018, duly executed by the U.S.  Borrower  and  the  other  parties thereto,  which  amendments  shall  be  in  form and substance  reasonably satisfactory to the Administrative Agent.                                         -82-                                           





 






                                    ARTICLE VI                                                                        NEGATIVE COVENANTS         Until the Commitments have expired or terminated and the principal of and interest on  each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have  expired or terminated and all LC Disbursements shall have been reimbursed, the U.S. Borrower  covenants and agrees with the Lenders that:      Section 6.01. Subsidiary Indebtedness.  The U.S. Borrower will not permit any Subsidiary  to create, incur, assume or permit to exist any Indebtedness, except:               (a)   Indebtedness created hereunder;               (b)   Indebtedness existing on the Restatement Effective Date and set forth in        Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that        do not increase the outstanding principal amount thereof;               (c)   Indebtedness owing to the U.S. Borrower;               (d)   Guarantees  of  Indebtedness  of  the  U.S. Borrower, provided that such        Guarantees are also  delivered  with  respect  to  the  Obligations  and  all  agreements,        opinions  and  other  documents  in  connection  therewith,  as  requested  by  the        Administrative Agent and in form and substance satisfactory to the Administrative Agent,        are delivered to the Administrative Agent; and               (e)   Indebtedness  not  otherwise  permitted  by this  Section 6.01  that,  together        (without duplication) with Indebtedness secured by Liens created by the U.S. Borrower        or any Subsidiary under Section 6.02(f), does not in the aggregate at any time outstanding        exceed the greater of (i) $40,000,000 and (ii) 10% of Tangible Net Worth; provided that,        notwithstanding the foregoing, the aggregate amount permitted under this clause (e) shall        not  at  any  time that  the  Senior  Notes Documents  are in  effect  exceed  the  aggregate        amount permitted thereunder.      Section 6.02. Liens.  The U.S. Borrower will not, and will not permit any Subsidiary to,  create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter  acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights  in respect of any thereof, except:               (a)   Permitted Encumbrances;               (b)   Liens  on  any  property  or  asset  of  the  U.S. Borrower  or any  Subsidiary        existing on the Restatement Effective Date and set forth in Schedule 6.02; provided that        (i) such Lien shall not apply to any other property or asset of the U.S. Borrower or any        Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the                                        -83-                                           





 






         Restatement  Effective  Date  and  extensions,  renewals  and  replacements  thereof  that  do        not increase the outstanding principal amount thereof;               (c)   Liens on any asset existing at the time of the purchase or other acquisition        thereof by the U.S. Borrower or any Subsidiary, provided that (i) any such Lien was not        created in contemplation of such purchase or other acquisition and does not extend to any        asset other  than  the  asset  so  purchased  or  otherwise  acquired  and  proceeds  thereof,        (ii) such purchase or other acquisition thereof and the Indebtedness secured by any such        Lien is otherwise permitted hereunder and (iii) the outstanding principal amount of the        Indebtedness secured thereby is not increased at any time;               (d)   Liens  on  any  asset  of the  U.S. Borrower  or  any Subsidiary  securing        Indebtedness  permitted  hereunder  which  is  incurred  to  finance  the  acquisition  of  such        asset, provided that (i) each such Lien shall be created substantially simultaneously with        the acquisition of the related asset; (ii) each such Lien does not at any time encumber any        asset other than the related asset financed by such Indebtedness; (iii) the principal amount        of Indebtedness secured by each such Lien is not increased; and (iv) the principal amount        of Indebtedness secured by each such Lien shall at no time exceed 100% of the original        purchase price of such related asset at the time acquired;               (e)   Liens  on assets  of  Subsidiaries  solely in  favor  of  the  U.S. Borrower  as        secured party and securing Indebtedness owing by a Subsidiary to the U.S. Borrower; and                (f)  Liens not otherwise permitted by this Section 6.02 securing Indebtedness        that,  together  (without  duplication)  with  Indebtedness  incurred  or  assumed  by  any        Subsidiary  under  Section 6.01(e),  does not  in  the aggregate  at  any  time  outstanding        exceed the greater of (i) $40,000,000 and (ii) 10% of Tangible Net Worth; provided that,        notwithstanding the foregoing, the aggregate amount permitted under this clause (f) shall        not  at any  time  that  the  Senior Notes Documents are  in  effect  exceed  the aggregate        amount permitted thereunder.      Section 6.03. Fundamental  Changes.   The  U.S. Borrower  will  not,  and  will  not  permit  any Subsidiary to, merge into or consolidate with any other Person or permit any other Person to  merge into or consolidate with it, or sell all or substantially all of its assets to any other Person  (including by Division), except for the following:               (a)   (i) any Wholly-Owned Subsidiary of the U.S. Borrower may merge with        the U.S. Borrower, provided that the U.S. Borrower shall be the continuing and surviving        entity,  or (ii)  any Wholly-Owned  Subsidiary  of  the U.S.  Borrower  may merge  with  or        into  any  Subsidiary  Borrower, provided that  such  Subsidiary  Borrower  shall be  the        continuing or surviving entity or, simultaneously with such transaction, the continuing or        surviving entity shall become a Subsidiary Borrower;                (b)   any Wholly-Owned  Subsidiary  of  the  U.S. Borrower  that is not  a        Subsidiary Borrower may merge with any other Wholly-Owned Subsidiary that is not a        Subsidiary Borrower;                                         -84-                                           





 






               (c)   the U.S. Borrower or any Subsidiary may merge or consolidate with any        other Person in connection with a Permitted Acquisition, provided that in the case of a        merger the U.S. Borrower or such Subsidiary (as applicable) shall be the continuing and        surviving entity;               (d)   any Wholly-Owned Subsidiary of the U.S. Borrower may dispose of all or        substantially all of its assets to the U.S. Borrower or any Subsidiary Borrower; provided        that, with respect to any such disposition by any Wholly-Owned Subsidiary that is not a        Subsidiary  Borrower,  the  consideration  for  such  disposition  shall  not  exceed  the  fair        value of such assets; and               (e)   any  Wholly-Owned  Subsidiary of  the  U.S.  Borrower  that  is  not  a        Subsidiary Borrower  may  dispose  of  all  or  substantially all  of  its  assets  to  any  other        Wholly-Owned Subsidiary that is not a Subsidiary Borrower.      Section 6.04. Investments,  Loans,  Advances  and Acquisitions.   The  U.S. Borrower  will  not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant  to any merger with any Person that was not a Wholly-Owned Subsidiary prior to such merger)  any Equity Interests, evidences of indebtedness or other securities (including any option, warrant  or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances  to, or make or permit to exist any investment or any other interest in, any other Person, or make  any Acquisition, except:               (a)   Permitted Investments;               (b)   investments,  loans  or  advances  made  by  the  U.S. Borrower  to  any        Wholly-Owned  Subsidiary  and  made  by  any  Subsidiary to  the  U.S. Borrower  or  any        Wholly-Owned Subsidiary; and               (c)   Acquisitions, investments,  loans  or  advances  not  otherwise  permitted  by        this Section 6.04 (including, for the avoidance of doubt, investments in joint ventures and        other investments in Equity Interests of any other Person), but only if (i) no Default or        Event  of  Default  exists  or  will  result  after  giving  effect  to  any  such Acquisition,        investment,  loan  or advance  and  (ii) on  a pro  forma basis,  as  if  such Acquisition,        investment, loan or advance (and any related incurrence or assumption of Indebtedness)        had occurred at the beginning of the most recently-ended four fiscal quarter period for        which  the  U.S. Borrower  has  delivered  financial  statements  under  Section 5.01(a)  or        Section 5.01(b) that precedes the Determination Date for such Acquisition, investment,        loan  or  advance,  the  Leverage  Ratio  as  of  such  Determination  Date  would  not  exceed        3.50 to 1.00 (without giving effect to any Step-Up Election) (each Acquisition made in        accordance with this clause (c), a “Permitted Acquisition”). For the avoidance of doubt,        the U.S. Borrower shall not be required to deliver a Compliance Certificate in order to        evidence its compliance with the requirements of this clause (c) in connection with any        Acquisition, investment, loan or advance.                                         -85-                                           





 






      Section 6.05. Swap Agreements.  The U.S. Borrower will not, and will not permit any of  its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to  hedge or mitigate risks to which the U.S. Borrower or any Subsidiary has actual exposure (other  than  those  in respect  of  Equity  Interests  of  the  U.S. Borrower  or  any  of  its  Subsidiaries),  and  (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates  (from floating  to  fixed rates, from  fixed  to  floating rates, from  one  floating rate  to  another  floating  rate  or  otherwise)  with  respect  to  any  interest-bearing  liability  or  investment  of the  U.S. Borrower or any Subsidiary.      Section 6.06. Restricted Payments.  The U.S. Borrower will not, and will not permit any  of  its  Subsidiaries  to,  declare  or  make,  or  agree  to  pay  or  make,  directly or indirectly,  any  Restricted Payment, except:               (a)   the  U.S. Borrower  may declare  and  pay  dividends  with  respect  to  its        Equity Interests payable solely in additional shares of its common stock;               (b)   Subsidiaries may declare and pay dividends ratably with respect to their        Equity Interests; and               (c)   the  U.S. Borrower  may  make  Restricted  Payments  with  respect to  its        Equity Interests, in each case so long as:                      (i)  no Default  or  Event  of  Default  exists  or  will  result  after giving              effect to any such Restricted Payment;                     (ii)  on a pro forma basis, assuming such Restricted Payment (and any              related  incurrence  of  Indebtedness)  had  occurred  at  the  beginning  of  the  most              recently-ended  four  fiscal  quarter  period  for  which  the  U.S. Borrower  has              delivered  financial statements under  Section 5.01(a)  or  Section 5.01(b) that              precedes  the  date  on  which such  Restricted  Payment  actually  occurs, (A) the              Leverage Ratio as of the Determination Date for such Restricted Payment would              not  exceed  3.50  to  1.00  (without  giving  effect to  any  Step-Up  Election)  and              (B) the U.S. Borrower would be in compliance with the terms and conditions of              this  Agreement (for  the avoidance  of  doubt, the  U.S.  Borrower  shall  not be              required to deliver a Compliance Certificate in order to evidence its compliance              with  the  requirements  of  this  clause  (c) in  connection  with  any Restricted              Payment); and                     (iii) the  sum  of  (A) the  aggregate  Available  Unused  Commitments  of              the Lenders plus (B) unrestricted cash of the U.S. Borrower and its Subsidiaries              on a consolidated basis is at least $50,000,000.      Section 6.07. Transactions  with  Affiliates.   The  U.S. Borrower  will not,  and  will  not  permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or  purchase,  lease  or  otherwise  acquire  any  property or  assets  from, or  otherwise  engage  in  any  other  transactions  with,  any  of  its  Affiliates,  except  (a) in the  ordinary  course  of  business  at                                        -86-                                           





 






   prices and on terms and conditions not less favorable to the U.S. Borrower or such Subsidiary  than  could  be  obtained on  an  arm’s-length  basis  from  unrelated  third  parties,  (b) transactions  between  or  among the  U.S. Borrower  and  its  Wholly-Owned  Subsidiaries not  involving any  other Affiliate and (c) any Restricted Payment permitted by Section 6.06.      Section 6.08. Restrictive  Agreements.   The  U.S. Borrower  will  not,  and  will  not  permit  any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement  or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the  U.S. Borrower  or  any  Subsidiary  to create,  incur  or  permit  to  exist  any Lien  upon any of  its  property or assets, (b) the ability of any Subsidiary to pay dividends or other distributions with  respect  to any  shares  of  its  Equity  Interests  or  to  make  or  repay  loans  or  advances to  the  U.S. Borrower or  any  other  Subsidiary or  (c) the  ability  of  any Subsidiary  to Guarantee  Indebtedness of the U.S. Borrower or any other Subsidiary; provided that (i) the foregoing shall  not apply to restrictions and conditions imposed by law or by this Agreement, (ii) the foregoing  shall  not  apply  to restrictions and  conditions  existing  on  the  date  hereof  identified  on  Schedule 6.08 (but shall apply to any extension or renewal of, or any amendment or modification  expanding  the  scope  of,  any  such  restriction  or  condition),  (iii) clauses (a)  and  (c)  of  the  foregoing shall not apply to restrictions and conditions contained in any Indebtedness equal to or  in  excess of $25,000,000  in aggregate  amount  at  the  date  of  incurrence  or  issuance  of  such  Indebtedness  and  permitted hereunder,  (iv) the  foregoing shall not  apply to customary  restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending  such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold  and such sale is permitted hereunder, (v) clause (a) of the foregoing shall not apply to restrictions  or  conditions  imposed  by  any  agreement  relating to  secured  Indebtedness  permitted  by  this  Agreement if such restrictions or conditions apply only to the property or assets securing such  Indebtedness, and  (vi) clause (a)  of the foregoing  shall  not  apply  to  customary  provisions  in  leases restricting the assignment thereof.      Section 6.09. Disposition of Assets; Etc.  The U.S. Borrower will not, and will not permit  any of its Subsidiaries to, sell, lease, license, transfer, assign or otherwise dispose of any of its  business,  assets,  rights,  revenues  or  property,  real,  personal  or  mixed,  tangible  or  intangible,  whether in one or a series of transactions, other than inventory sold in the ordinary course of  business upon customary credit terms, sales of scrap or obsolete material or equipment and sales  of fixed assets the proceeds of which are used to purchase other property of a similar nature of at  least  equivalent  value within  180 days  of  such  sale, provided, however, that  this  Section 6.09  shall not prohibit any such sale, lease, license, transfer, assignment or other disposition if (i) the  aggregate book value  (disregarding  any  write-downs  of such  book  value  other  than ordinary  depreciation  and  amortization)  of  all  of  the  business,  assets,  rights, revenues  and  property  disposed of shall be less than, in any fiscal year of the U.S. Borrower, fifteen percent (15%) of  the  aggregate  book  value  of the Consolidated  Total  Assets  as of  the  end  of  the  immediately  preceding fiscal year, and (ii) immediately after such transaction, no Default shall exist or shall  have occurred and be continuing.      Section 6.10. Change in Business.  The U.S. Borrower shall not and shall not permit its  Subsidiaries  to  engage, either  directly  or indirectly  through  Affiliates,  in  any  business  substantially different from the business of the U.S. Borrower or the applicable Subsidiary as of                                        -87-                                           





 






   the Restatement Effective Date; provided, however, that the U.S. Borrower and its Subsidiaries  may  engage  in  any business  reasonably  related,  ancillary  or  complimentary  to  the  business  in  which they are engaged as of the Restatement Effective Date.      Section 6.11. Leverage Ratio.  The U.S. Borrower will not permit the Leverage Ratio to  exceed 3.50 to 1.00 as of the end of any fiscal quarter; provided, however, that the U.S. Borrower  may elect (the “Step-Up Election”) to increase the maximum Leverage Ratio permitted by this  Section 6.11 to 4.00 to 1.00 for four consecutive fiscal quarter end dates (or, such shorter period  as the U.S. Borrower may elect pursuant to the immediately following proviso) by providing a  written  notice  (the “Step-Up  Election  Notice”)  to  the  Administrative  Agent  of  such  Step-Up  Election prior to the U.S. Borrower’s filing with the SEC its Annual Report on Form 10-K or  Quarterly Report on Form 10-Q for the fiscal period ending on the first fiscal quarter end date for  which  the  Step-Up  Election  is  to  take  effect; provided, however, that  the  U.S. Borrower may  elect to terminate the Step-Up Election as of the second or third fiscal quarter end date for which  the  Step-Up  Election is  in effect by  providing a written  notice  (the “Step-Up Termination  Notice”) to the Administrative Agent of such election prior to the U.S. Borrower’s filing with the  SEC its Annual Report on Form 10-K or Quarterly Report on Form 10-Q for the fiscal period  ending  on  such  date.   The U.S. Borrower  may  make only  one  Step-Up  Election.   Upon  the  expiration or early termination of the Step-Up Election, the maximum Leverage Ratio permitted  by this Section 6.11 shall revert to 3.50 to 1.00.      Section 6.12. Interest Coverage Ratio.   The  U.S. Borrower  will  not  permit  the  Interest  Coverage Ratio to be less than 3.50 to 1.00 as of the end of any fiscal quarter.      Section 6.13. Debt Prepayments.  The  U.S. Borrower shall  not  (x) pay  any  scheduled  payment prior to the due date thereof as in effect on the Restatement Effective Date, or prepay  any principal, premium, interest or any other amount (including sinking fund payments), with  respect to any Senior Notes; (y) redeem, purchase, defease, acquire or otherwise satisfy (or offer  to redeem, purchase, acquire or otherwise satisfy) any Senior Notes prior to the due date thereof  as in effect on the Restatement Effective Date; or (z) make any payment or deposit any monies,  securities or other property with any trustee or other Person with respect to any Senior Notes that  has  the  effect  of  violating  clause (x)  or  (y)  above (any  of  the  foregoing,  a “Senior  Notes  Prepayment”), unless:               (a)   no Default or Event of Default exists or will result after giving effect to        any such Senior Notes Prepayment;               (b)   on  a pro  forma basis,  assuming  such  Senior  Notes  Prepayment  had        occurred at the beginning of the most recently-ended four fiscal quarter period for which        the  U.S. Borrower  has  delivered  financial  statements  under  Section 5.01(a)  or        Section 5.01(b)  that  precedes  the  date  on  which  the  Senior  Notes  Prepayment  actually        occurs,  (A) the  Leverage  Ratio  as of  the  Determination  Date for  such  Senior Notes        Prepayment would not  exceed  3.50  to 1.00  (without  giving  effect  to  any  Step-Up        Election) and (B) the  U.S. Borrower would  be  in  compliance  with  the  terms  and        conditions of this Agreement, which pro forma results shall be evidenced by a certificate        of a Financial Officer of the U.S. Borrower setting forth reasonably detailed calculations                                        -88-                                           





 






         demonstrating pro  forma compliance  with  subclause (A)  above  and  with  Section 6.12;        and               (c)   the  sum  of  (i) the  aggregate Available  Unused  Commitments  of  the        Lenders after giving effect to any Borrowings used for a Senior Notes Prepayment plus        (ii) unrestricted cash of the U.S. Borrower and its Subsidiaries on a consolidated basis is        at least $50,000,000.      Section 6.14. Sanctions Laws  and  Regulations.  (a) No  Borrower  shall,  directly  or  indirectly,  use  the  proceeds  of  the  Advances,  or  lend,  contribute  or  otherwise  make  available  such  proceeds  to  any  Subsidiary, joint venture  partner  or  other Person or  entity (i) to  fund,  finance  or  facilitate any  activities  or  business  of or  with  any Sanctioned Person, or in  any  Sanctioned Country, (ii) in any other manner that would result in a violation of any Sanctions by  any party to this Agreement or (iii) in any manner that would result in a violation of any Anti- Corruption Laws or Anti-Money Laundering Laws, by any party to this Agreement.        (b)  None of the funds or assets of the Borrowers that are used to pay any amount due  pursuant to this Agreement shall constitute funds obtained from transactions with or relating to  Sanctioned Persons or Sanctioned Countries.                                    ARTICLE VII                                                                         EVENTS OF DEFAULT      Section 7.01. Events  of  Default.   If any  of the following  events  (“Events  of  Default”)  shall occur:               (a)   any  Borrower  shall fail  to  pay  any  principal  of  any  Loan  or  any        reimbursement obligation in respect of any LC Disbursement when and as the same shall        become due  and  payable,  whether at  the due  date thereof  or  at  a  date  fixed  for        prepayment thereof or otherwise;               (b)   any Borrower shall fail to pay any interest on any Loan or any fee or any        other amount (other than an amount referred to in clause (a) of this Article) payable under        this Agreement, when and as the same shall become due and payable, and such failure        shall continue unremedied for a period of three Business Days;               (c)   any representation or warranty made or deemed made by or on behalf of        the  U.S. Borrower  or  any  Subsidiary  in or  in connection with  the  Existing  Agreement,        this Agreement or any amendment or modification hereof or waiver hereunder, or in any        report,  certificate,  financial  statement  or  other  document furnished  pursuant  to  or  in        connection with  the  Existing  Agreement,  this  Agreement  or  any  amendment  or        modification  hereof or  waiver  hereunder,  shall  prove  to  have  been  incorrect  in  any        material respect when made or deemed made;                                         -89-                                           





 






                      (d)   any Borrower shall fail to observe or perform any covenant, condition or  agreement contained in Section 5.02, 5.03 (with respect to any Borrower’s existence) or  5.08 or in Article VI (other than Section 6.07);         (e)   any Borrower shall fail to observe or perform any covenant, condition or  agreement contained in this Agreement (other than those specified in clause (a), (b) or (d)  of this Article) or any other Loan Document, and such failure shall continue unremedied  for  a  period  of  30 days  after  notice  thereof  from  the  Administrative  Agent  to  the  U.S. Borrower (which notice will be given at the request of any Lender);          (f)  the  U.S. Borrower  or  any  Subsidiary  shall  fail  to  make  any  payment  (whether  of  principal  or  interest  and  regardless  of  amount)  in  respect  of  any  Material  Indebtedness, when and as the same shall become due and payable (after giving effect to  any applicable grace periods);         (g)   any  event  or  condition  occurs  that  results  in  any  Material  Indebtedness  becoming due prior to its scheduled maturity or that enables or permits (with or without  the  giving  of  notice,  the  lapse  of  time  or  both)  the  holder or holders  of  any  Material  Indebtedness  or  any  trustee  or  agent  on  its  or  their behalf  to  cause  any  Material  Indebtedness  to  become  due,  or  to  require  the  prepayment,  repurchase,  redemption or  defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not  apply to secured Indebtedness permitted by this Agreement that becomes due as a result  of the voluntary sale or transfer of the property or assets securing such Indebtedness;         (h)   an involuntary proceeding shall be commenced or an involuntary petition  shall  be  filed seeking  (i) liquidation,  reorganization  or  other  relief  in  respect  of  the  U.S. Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under  any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,  conservator or similar official for the U.S. Borrower or any Subsidiary or for a substantial  part  of its  assets, and,  in any  such  case,  such  proceeding  or  petition shall  continue  undismissed for 60 days or an order or decree approving or ordering any of the foregoing  shall be entered;          (i)  the  U.S. Borrower  or  any  Subsidiary  shall  (i) voluntarily  commence  any  proceeding  or file  any  petition  seeking  liquidation,  reorganization  or  other  relief  under  any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter  in effect,  (ii) consent  to  the  institution of,  or  fail  to  contest  in a  timely  and  appropriate  manner,  any  proceeding  or  petition  described  in  clause (h)  of  this Section  7.01,  (iii) apply  for  or  consent  to  the appointment  of  a  receiver,  trustee,  custodian,  sequestrator, conservator or similar official for the U.S. Borrower or any Subsidiary or  for a substantial part of its assets, (iv) file an answer admitting the material allegations of  a petition filed against it in any such proceeding, (v) make a general assignment for the  benefit  of  creditors  or  (vi) take  any  action  for the  purpose of effecting  any  of  the  foregoing;                                  -90-                                     





 






                (j)  the U.S. Borrower or any Subsidiary shall become unable, admit in writing        its inability or fail generally to pay its debts as they become due;               (k)   one or more judgments for the payment of money in an aggregate Dollar        Equivalent amount in excess of $5,000,000 shall be rendered against the U.S. Borrower,        any Subsidiary or any combination thereof and the same shall remain undischarged for a        period of 30 consecutive days during which execution shall not be effectively stayed, or        any action shall be legally taken by a judgment creditor to attach or levy upon any assets        of the U.S. Borrower or any Subsidiary to enforce any such judgment;                (l)  (i) an  ERISA  Event  shall  have  occurred  that,  in  the  opinion  of the        Required Lenders, when taken together with all other ERISA Events that have occurred,        could  reasonably  be  expected  to  result  in  a  Material  Adverse  Effect;  (ii) the        U.S. Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined        in  Section 406  of ERISA  or Section 4975  of  the  Code)  involving  any  Plan  that,  in  the        opinion  of  the  Required  Lenders,  when  taken  together  with  all other  such  events  or        conditions, if any, could reasonably be expected to result in liability of the U.S. Borrower        and  its Subsidiaries in  an  aggregate  amount  exceeding  $1,000,000;  or  (iii) there  exists        any fact or circumstance that could reasonably be expected to result in the imposition of a        Lien or security interest under Section 412(n) of the Code (or, for years in which the PPA        applies to any Plan, Section 430(k) of the Code) or under ERISA;               (m)   Any  Loan Document  shall  fail  to  remain  in  full  force  or  effect  or  any        action shall be taken to discontinue or to assert the invalidity or unenforceability of any        Loan Document, or any Borrower shall deny that it has any further liability under any        Loan Document to which it is a party, or shall give notice to such effect; or               (n)   a Change in Control shall occur;   then,  and  in  every  such  event  (other  than  an event  with  respect to  any Borrower  described  in  clause (h) or (i) of this Section 7.01), and at any time thereafter during the continuance of such  event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice  to the U.S. Borrower, take either or both of the following actions, at the same or different times:  (i) terminate  the  Commitments,  and  thereupon  the  Commitments  shall  terminate immediately,  and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which  case any principal not so declared to be due and payable may thereafter be declared to be due and  payable), and thereupon the principal of the Loans so declared to be due and payable, together  with  accrued interest  thereon  and  all  fees and other  obligations  of  the  Borrowers accrued  hereunder, shall become due and payable immediately, without presentment, demand, protest or  other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any  event  with  respect  to any Borrower described  in clause (h) or (i)  of this Section 7.01,  the  Commitments  shall  automatically  terminate and the  principal  of  the  Loans  then  outstanding,  together with accrued interest thereon and all fees and other obligations of the Borrowers accrued  hereunder, shall automatically become due and payable, without presentment, demand, protest or  other notice of any kind, all of which are hereby waived by the Borrowers.                                        -91-                                           





 






                                    ARTICLE VIII                                                                            THE AGENTS      Section 8.01. Appointment,  Powers  and Immunities.   (a) Each  Lender, each  Ancillary  Lender and the Issuing Bank hereby appoints and authorizes the Administrative Agent to act as  its  agent  hereunder  and  under  the  other  Loan  Documents with  such  powers  as  are  expressly  delegated  to  the  Administrative  Agent  by  the terms  of  this  Agreement  and  the  other  Loan  Documents, together with such other powers as are reasonably incidental thereto.  Each Lender,  each Ancillary Lender and the Issuing Bank hereby authorizes the Administrative Agent to take  such action on its behalf under the provisions of this Agreement and the other Loan Documents  and to exercise such powers as are set forth herein or therein, together with such other powers as  are reasonably incidental thereto.  For the avoidance of doubt, notwithstanding anything to the  contrary  herein  or  in  the  other  Loan  Documents,  the  Administrative  Agent  is  acting  as  administrative agent for the Lenders, the Ancillary Lenders and the Issuing Bank only and the  Administrative  Agent  is  not  acting  as administrative  agent  for  any other  Agents,  Joint  Lead  Arrangers, Joint Bookrunners, Left Lead Arranger or Left Lead Bookrunner.  The Syndication  Agent, Joint Lead Arrangers, Joint Bookrunners, Left Lead Arranger and Left Lead Bookrunner  shall not have any duties or responsibilities or any liabilities under this Agreement or any other  Loan  Documents  and  any  amendments,  consents,  waivers  or  any  other  actions  taken  in  connection with this Agreement or the other Loan Documents shall not require the consent of the  Syndication  Agent,  Joint  Bookrunners  or  Left  Lead  Bookrunner  or,  except  to  the  extent  expressly set forth in Section 9.02, Joint Lead Arrangers or Left Lead Arranger, in such capacity.   The Administrative Agent shall not have any duties or responsibilities except those expressly set  forth in this Agreement or in any other Loan Document, be a trustee for any Lender, Ancillary  Lender or the Issuing Bank or have any fiduciary duty to any Lender, Ancillary Lender or the  Issuing  Bank.   Notwithstanding  anything  to  the contrary  contained  herein  the  Administrative  Agent shall not be required to take any action which is contrary to this Agreement or any other  Loan Document or any applicable Requirement of Law.  Neither the Administrative Agent nor  any Lender or Ancillary Lender shall be responsible to any other Lender or Ancillary Lender for  any recitals, statements, representations or warranties made by the Borrowers contained in this  Agreement or in any other Loan Document, for the value, validity, effectiveness, genuineness,  enforceability or sufficiency of this Agreement or any other Loan Document or for any failure by  any Borrower to perform its obligations hereunder or thereunder.  The Administrative Agent may  employ agents and attorneys-in-fact and shall not be responsible to any Lender, Ancillary Lender  or  the  Issuing  Bank for  the  negligence  or misconduct  of  any  such  agents  or  attorneys-in-fact  selected by it with reasonable care.  Neither the Administrative Agent nor any of its directors,  officers, employees, agents or advisors shall be responsible to any Lender, Ancillary Lender or  the Issuing Bank for any action taken or omitted to be taken by it or them hereunder or under any  other Loan Document or in connection herewith or therewith, except to the extent determined by  a final, non-appealable judgment of a court of competent jurisdiction to have arisen from its or  their  own  gross negligence  or  willful  misconduct.   Except  as  otherwise provided  under  this  Agreement, the Administrative Agent shall take such action with respect to the Loan Documents  as  shall  be  directed  by  the  Required  Lenders  (or all  or  such  other  portion  of  the  Lenders  as  required by Section 9.02) or in the absence of such direction, such action as the Administrative  Agent in good faith deems advisable under the circumstances.                                        -92-                                           





 






        (b)  The Issuing Bank shall act on behalf of the Lenders and the Ancillary Lenders with  respect to any Letters of Credit issued by it and the documents associated therewith until such  time (and  except  for  so  long)  as  the  Administrative  Agent  may  agree  at  the  request  of  the  Required Lenders to act for the Issuing Bank with respect thereto; provided, however, that the  Issuing  Bank  shall  have  all  of  the benefits  and  immunities (i) provided  to  the  Administrative  Agent  in  this Article VIII with  respect  to any acts  taken  or  omissions  suffered  by  the  Issuing  Bank  in connection  with  Letters  of  Credit  issued  by  it  or  proposed  to  be  issued  by  it  and  the  application and agreements for letters of credit pertaining to the Letters of Credit as fully as if the  term “Administrative Agent” as used in this Article VIII included the Issuing Bank with respect  to  such acts  or  omissions,  and  (ii) as  additionally  provided  herein with  respect to  the Issuing  Bank.      Section 8.02. Reliance  by  the  Administrative  Agent.  The  Administrative  Agent,  the  Issuing Bank and the Swingline Lender shall be entitled to rely upon, and shall not incur any  liability for  relying  upon, any  certificate,  notice or  other  document  (including  any  cable,  telegram, facsimile or telex) believed by it in good faith to be genuine and correct and to have  been  signed  or  sent  by  or on  behalf of the  proper  Person  or Persons,  and  upon advice  and  statements  of  legal  counsel, independent  accountants and  other  experts  selected  by  the  Administrative Agent with reasonable care.  The Administrative Agent may also rely upon any  statement made to it orally or by telephone which is reasonably and in good faith believed by it  to have been made by the proper Person, and shall not incur any liability for relying thereon. As  to  any  other  matters  not  expressly  provided  for  by  this  Agreement,  the  Administrative  Agent  shall not be required to take any action or exercise any discretion, but shall be required to act or  to refrain from acting upon instructions of the Required Lenders (or all or such other portion of  the Lenders as required by Section 9.02) and shall in all cases be fully protected by the Lenders  and the Ancillary Lenders in acting, or in refraining from acting, hereunder or under any other  Loan Document in accordance with the instructions of the Required Lenders (or all or such other  portion  of  the Lenders  as required  by  Section 9.02),  and such  instructions  of  the  Required  Lenders (or all or such other portion of the Lenders as required by Section 9.02) and any action  taken  or  failure  to  act  pursuant  thereto  shall  be  binding  on  all  of  the  Lenders  and Ancillary  Lenders.      Section 8.03. Defaults.   The  Administrative  Agent  shall  not  be  deemed  to  have  knowledge  or  notice of  the  occurrence  of  any  Default  unless the  Administrative  Agent  has  received a written notice from a Lender or a Borrower, referring to this Agreement, describing  such Default and stating that such notice is a “Notice of Default”.  If the Administrative Agent  receives such a notice of the occurrence of a Default, the Administrative Agent shall give prompt  notice thereof to the Lenders.  The Administrative Agent shall take such action with respect to  such Default as shall be reasonably directed by the Required Lenders (or all or such other portion  of  the  Lenders  as  required  by  Section 9.02); provided,  however, that until  the  Administrative  Agent  shall  have  received  such  directions,  the  Administrative Agent  may  (but  shall  not  be  obligated to) take such action, or refrain from taking such action, with respect to such Default as  it  shall  deem  advisable  in  the  best interest  of the  Lenders.   Notwithstanding  anything  in  the  contrary contained herein, the order and manner in which the Lenders’ rights and remedies are to  be exercised (including, without limitation, the enforcement by any Lender of its note) shall be                                        -93-                                           





 






   determined by the Required Lenders (or all or such other portion of the Lenders as required by  Section 9.02) in their sole discretion.      Section 8.04. Indemnification.   Without  limiting  the Obligations  of  the  Borrowers  hereunder, each Lender  and  each  Ancillary  Lender  agrees to  indemnify  the  Administrative  Agent,  ratably  in  accordance  with  its  Applicable  Adjusted  Percentage  of  all  Obligations  and  Commitments,  for any  and  all  liabilities,  obligations,  losses,  damages,  penalties,  actions,  judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may  at any time be imposed on, incurred by or asserted against the Administrative Agent in any way  relating  to  or  arising out  of  this Agreement  or any  documents contemplated  by  or  referred  to  herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of  the terms hereof or thereof; provided, however, that no Lender or Ancillary Lender shall be liable  for any of the foregoing to the extent determined by a final, non-appealable judgment of a court  of competent  jurisdiction  to  have  arisen  from  the  Administrative  Agent’s  gross  negligence  or  willful misconduct.  The Administrative Agent shall be fully justified in refusing to take or in  continuing to take any action hereunder unless it shall first be indemnified to its satisfaction by  the Lenders and the Ancillary Lenders against any and all liability and expense which may be  incurred by it by reason of taking or continuing to take any such action.  The obligations of each  Lender and  each  Ancillary  lender under  this  Section 8.04  shall  survive  the  payment  and  performance of the Obligations, the termination of this Agreement and any Lender or Ancillary  Lender ceasing to be a party to this Agreement (with respect to events which occurred prior to  the time such Lender or Ancillary Lender ceased to be a Lender or Ancillary Lender hereunder).      Section 8.05. Non-Reliance.  Each Lender, each Ancillary Lender and the Issuing Bank  represents that it has, independently and without reliance on the Administrative Agent, or any  other  Lender, Ancillary  Lender or  the  Issuing  Bank,  and  based  on  such  documents  and  information  as  it  has  deemed  appropriate,  made  its own  appraisal  of  the  business,  prospects,  management, financial condition and affairs of the Borrowers and its own decision to enter into  this  Agreement  and  agrees  that  it  will,  independently  and  without  reliance upon  the  Administrative Agent or any other Lender, Ancillary Lender or the Issuing Bank, and based on  such documents and information as it shall deem appropriate at the time, continue to make its  own appraisals and decisions in taking or not taking action under this Agreement.  Neither the  Administrative  Agent  nor  any  of  its  affiliates  nor  any  of  their  respective directors,  officers,  employees, agents or advisors shall (a) be required to keep any Lender, Ancillary Lender or the  Issuing Bank informed as to the performance or observance by any Borrower of the obligations  under  this  Agreement  or  any  other  document  referred  to  or  provided  for  herein  or  to  make  inquiry  of,  or  to  inspect  the  properties  or  books  of  any  Borrower;  (b) have  any  duty  or  responsibility to disclose to or otherwise provide any Lender, Ancillary Lender or the Issuing  Bank,  and  shall  not  be  liable for the  failure  to  disclose  or  otherwise  provide  any Lender,  Ancillary  Lender or  the  Issuing  Bank, with  any  credit or  other  information  concerning any  Borrower  which  may come  into  the possession  of  the  Administrative  Agent  or  that  is  communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates  in  any  capacity,  except for  notices,  reports  and  other  documents  and information  expressly  required to be furnished to the Lenders by the Administrative Agent hereunder or any other Loan  Document; or (c) be responsible to any Lender, Ancillary Lender or the Issuing Bank for (i) any  recital, statement, representation or warranty made by any Borrower or any officer, employee or                                        -94-                                           





 






   agent of any Borrower in this Agreement or in any of the other Loan Documents, (ii) the value,  validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Loan  Document, (iii) the value or sufficiency of any collateral or the validity or perfection of any of  the liens or security interests intended to be created by the Loan Documents, or (iv) any failure  by any Borrower to perform its obligations under this Agreement or any other Loan Document.      Section 8.06. Resignation  of  the  Administrative  Agent.   The  Administrative  Agent  may  resign at any time by giving thirty (30) days’ prior written notice thereof to the Borrowers and  the Lenders.  Upon any such resignation, the Required Lenders shall have the right to appoint a  successor Administrative Agent, which successor Administrative Agent, if not a Lender, shall be  reasonably  acceptable  to  the  Borrowers; provided,  however, that  the  Borrowers shall have  no  right to approve a successor Administrative Agent if a Default has occurred and is continuing.   Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor  Administrative Agent,  such  successor  Administrative  Agent  shall  thereupon  succeed  to  and  become vested with all the rights, powers, privileges and duties of the retiring Administrative  Agent, and the retiring Administrative Agent shall be discharged from the duties and obligations  thereafter arising hereunder; provided that the retiring Administrative Agent shall be discharged  from the duties and obligations arising hereunder from and after the end of such thirty (30) day  period even if no successor has been appointed.  If no such successor has been appointed, the  Required  Lenders  shall  act  as  the  Administrative  Agent  hereunder  and under  the  other  Loan  Documents.   After  any  retiring Administrative  Agent’s  resignation  hereunder as  the  Administrative Agent, the provisions of this Article VIII shall continue in effect for its benefit in  respect of any actions taken or omitted to be taken by it while it was acting as the Administrative  Agent.   The  successor  Administrative  Agent  (or if  there  is  no  successor,  one  of  the  Lenders  appointed  by  the  Required  Lenders that  accepts  such  appointment)  shall  also  simultaneously  replace the then existing Administrative Agent and the then existing Administrative Agent shall  be  fully  released  as  “Issuing  Bank”  and “Swingline  Lender”  hereunder  pursuant  to  documentation in form and substance reasonably satisfactory to the then existing Administrative  Agent.      Section 8.07. Performance of Conditions.  For the purpose of determining fulfillment by  the Borrowers of conditions precedent specified in Sections 4.01 and 4.02 only, each Lender and  each Ancillary Lender shall be deemed to have consented to, and approved or accepted, or to be  satisfied with each document or other matter sent by the Administrative Agent to such Lender or  Ancillary Lender for consent, approval, acceptance or satisfaction, or required under Article IV  to  be  consented  to,  or  approved  by  or  acceptable  or  satisfactory  to,  that  Lender  or  Ancillary  Lender,  unless  an  officer  of the  Administrative Agent who  is responsible  for  the  transactions  contemplated  by  the  Loan  Documents  shall  have received  written  notice  from  that  Lender  or  Ancillary  Lender  prior  to  the  making  of  the  requested Loan  or  the  issuance  of  the  requested  Letter of Credit specifying its objection thereto and either (i) such objection shall not have been  withdrawn by written notice to the Administrative Agent or (ii) in the case of any condition to  the  making  of  a  Loan, that  Lender  or Ancillary  Lender  shall  not  have made  available  to the  Administrative Agent that  Lender’s  or  Ancillary  Lender’s  Applicable  Adjusted  Percentage of  such Loan or Letter of Credit.                                         -95-                                           





 






      Section 8.08. The Administrative  Agent  in  its  Individual  Capacity;  Other Relationships.   The  Administrative  Agent and its  affiliates  may  make  loans  to,  issue  letters of  credit  for  the  account of, accept deposits from and generally engage in any kind of banking or other business  with any  Borrower and  its  Affiliates  as  though  the  Administrative  Agent  were  not  the  Administrative Agent, Issuing Bank or Swingline Lender hereunder.  With respect to Loans, if  any, made by the Administrative Agent in its capacity as a Lender, the Administrative Agent in  its  capacity  as  a  Lender  shall  have  the  same  rights  and  powers  under  this Agreement  and  the  other Loan Documents as any other Lender and may exercise the same as though it were not the  Administrative Agent, Issuing Bank or Swingline Lender, and the terms “Lender” or “Lenders”  shall include the Administrative Agent in its capacity as a Lender.  The Administrative Agent  shall not be deemed to hold a fiduciary, trust or other special relationship with any Lender and no  implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into  this Agreement or otherwise exist against the Administrative Agent.      Section 8.09. Administrative Agent May File Proofs of Claim.  In case of the pendency of  any proceeding  under  any Debtor Relief  Law  or  any  other judicial  proceeding  relative  to  any  Borrower,  the  Administrative  Agent  (irrespective  of  whether  the  principal  of  any  Loan or  LC  Exposure 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 any Borrower)  shall  be  entitled  and  empowered (but  not  obligated),  by  intervention  in  such  proceeding  or  otherwise:               (a)   to file and prove a claim for the whole amount of the principal and interest        owing and unpaid in respect of the Loans, LC Exposure 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, Ancillary  Lenders,  the  Issuing Bank and  the        Administrative  Agent  (including  any claim  for  the  reasonable  compensation,  expenses,        disbursements and  advances  of  the  Lenders, the  Issuing  Bank and the  Administrative        Agent and their respective agents and counsel and all other amounts due the Lenders, the        Issuing  Bank  and  the  Administrative Agent  hereunder)  allowed  in  such  judicial        proceeding; and               (b)   to collect and receive any monies or other property payable or deliverable        on any such claims and to distribute the same;         and  any  custodian, receiver,  assignee,  trustee,  liquidator,  sequestrator  or  other  similar        official in any such judicial proceeding is hereby authorized by each Lender, Ancillary        Lender and Issuing Bank to make such payments to the Administrative Agent and, in the        event  that the  Administrative  Agent  shall  consent  to  the  making  of  such  payments        directly to the Lenders, Ancillary Lenders or Issuing Bank, to pay to the Administrative        Agent  any amount due  for  the reasonable  compensation,  expenses,  disbursements  and        advances of the Administrative Agent and its agents and counsel, and any other amounts        due the Administrative Agent hereunder.      Section 8.10. Designation of Affiliates for Foreign Currency Loans.  The Administrative  Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties                                        -96-                                           





 






   to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings  denominated in Foreign Currencies.  The provisions of this Article VIII shall apply to any such  Affiliate mutatis mutandis.                                    ARTICLE IX                                                                          MISCELLANEOUS      Section 9.01. Notices.  (a) Except  in  the  case  of notices  and  other  communications  expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices  and other communications provided for herein shall be in writing and shall be delivered by hand  or  overnight courier  service,  mailed  by  certified  or  registered  mail  or  sent  by  telecopy,  as  follows:                (i)  if to a Borrower, to it at 855 East Main Street, P.O.  Box 302, Zeeland,        Michigan, 49464-0302, Attention  of Kevin Veltman,  Vice  President-Investor  Relations        and Treasurer (Telecopy No. 616-654-7221; Kevin_Veltman@hermanmiller.com);               (ii)  if  to  the  Administrative  Agent,  to  Wells Fargo  Bank,  National        Association,  Agency  Services,  1525  West  W.T.  Harris  Boulevard – 1B1, Mailcode:        MACD1109-019,  Charlotte,  North Carolina,  28262,  Attention of Agency  Services        Manager         (Telecopy        No.         704-590-2782;        e-mail:        agencyservices.requests@wellsfargo.com);               (iii) if to  the  Issuing  Bank  other  than the  Administrative Agent,  to  it at  the        address or telecopy number set forth separately in writing to the Administrative Agent;        and               (iv)  if to any other Lender, to it at its address (or telecopy number) set forth in        its Administrative Questionnaire.        (b)  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  pursuant  to  Article II unless  otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative  Agent  or  the U.S. 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.  Additionally, if the Administrative Agent agrees to accept a notice pursuant to  Article II,  including  any  notice  of  borrowing,  notice  of  interest  period  selection or  notice of  Revolving  Loan  conversion,  made  by  e-mail  transmission,  such  e-mail transmission  shall  be  binding on the applicable Borrower whether or not written confirmation is sent by the applicable  Borrower or requested by the Administrative Agent, and the Administrative Agent may act prior  to  the  receipt  of  any  requested  written confirmation,  without  any  liability  whatsoever,  based  upon e-mail notice believed by the Administrative Agent in good faith to be from the applicable  Borrower or its agents.  The Administrative Agent’s records of the terms of any e-mail notice                                       -97-                                           





 






   pursuant  to Article II  shall  be  conclusive  on  the  applicable  Borrower  in  the  absence  of  gross  negligence  or  willful  misconduct on  the  part  of  the  Administrative  Agent  in connection  therewith.        (c)  The Borrowers  agree  that  the  Administrative Agent  may  make  any  material  delivered  by  a  Borrower  to  the  Administrative  Agent,  as  well  as  any  amendments,  waivers,  consents, and other written information, documents, instruments and other materials relating to a  Borrower or any of its Subsidiaries, or any other materials or matters relating to this Agreement,  the  other  Loan  Documents  or  any  of  the  transactions  contemplated  hereby  or  thereby  (collectively,  the “Communications”)  available  to the  Lenders  by posting  such  notices  on  an  electronic delivery system (which may be provided by the Administrative Agent, an Affiliate of  the Administrative Agent, or any Person that is not an Affiliate of the Administrative Agent),  such as IntraLinks, or a substantially similar electronic system that requires passwords for access  and  takes  other customary  measures  with  respect  to  confidentiality  and  security  (the  “Platform”).  The U.S. Borrower acknowledges that (i) the distribution of material through an  electronic  medium  is not necessarily  secure  and  that  there  are  confidentiality  and  other  risks  associated  with  such  distribution,  (ii) the  Platform  is  provided  “as  is”  and  “as  available”  and  (iii) neither  the  Administrative  Agent  nor  any of  its  Affiliates  represents  or warrants  the  accuracy, completeness, timeliness, sufficiency or sequencing of the Communications posted on  the Platform.  The Administrative Agent and its Affiliates expressly disclaim with respect to the  Platform any liability for errors in transmission, incorrect or incomplete downloading, delays in  posting or delivery, or problems accessing the Communications posted on the Platform (each, a  “Platform  Error”)  and  any  liability for  any  losses, costs,  expenses  or  liabilities that  may  be  suffered or incurred in connection with the Platform, except to the extent any of the foregoing  liabilities are caused by the gross negligence or willful misconduct of the Administrative Agent  or  any  of  its  Affiliates.   No  warranty  of  any  kind, express,  implied  or  statutory, including,  without  limitation,  any  warranty  of  merchantability,  fitness  for  a  particular  purpose,  non- infringement of third party rights or freedom from viruses or other code defects, is made by the  Administrative Agent or any of its Affiliates in connection with the Platform.  Notwithstanding  anything herein to the contrary, the Borrowers shall not be in Default hereunder for failure to  deliver any required notice, financial statements or other items if such failure was caused by a  Platform Error.        (d)  Each Lender  agrees  that  notice  to  it  (as  provided  in  the  next  sentence)  (a  “Notification”)  specifying  that  any  Communication  has  been posted  to  the  Platform  shall  for  purposes  of  this  Agreement  constitute  effective  delivery  to such  Lender of  such information,  documents or other materials comprising such Communication.  Each Lender agrees (i) to notify,  on or before the date such Lender becomes a party to this Agreement, the Administrative Agent  in writing of such Lender’s e-mail address to which a Notification may be sent (and from time to  time thereafter to ensure that the Administrative Agent has on record an effective e-mail address  for such Lender) and (ii) that any Notification may be sent to such e-mail address.        (e)  Any party hereto may change its address or telecopy number for notices and other  communications  hereunder  by  notice  to  the  other  parties  hereto.   All  notices  and  other  communications given to any party hereto in accordance with the provisions of this Agreement  shall be deemed to have been given on the date of receipt.                                        -98-                                           





 






      Section 9.02. Waivers; Amendments.  (a) No failure or delay by any Agent, Issuing Bank  or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor  shall  any  single  or  partial  exercise  of  any such  right  or  power,  or  any abandonment  or  discontinuance of steps to enforce such a right or power, preclude any other or further exercise  thereof or the exercise of any other right or power.  The rights and remedies of the Agents, the  Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or  remedies  that  they  would  otherwise  have.   No  waiver  of  any  provision  of  this  Agreement  or  consent to any departure by any Borrower therefrom shall in any event be effective unless the  same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall  be effective only in the specific instance and for the purpose for which given.  Without limiting  the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not  be  construed  as  a  waiver  of  any  Default, regardless  of  whether  the  Agent,  Lender  or  Issuing  Bank may have had notice or knowledge of such Default at the time.        (b)  Neither this Agreement  nor  any  provision  hereof  may  be  waived,  amended  or  modified except  pursuant  to  an  agreement  or  agreements  in writing  entered  into  by  the  Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the  consent  of the Required  Lenders; provided that  no  such  agreement  shall  (i) increase the  Commitment of any Lender without the written consent of such Lender directly affected thereby  (except that only the Lenders who are increasing their Commitments are required to consent to a  request  by  the  U.S. Borrower  under Section 2.23  to  increase  the Aggregate  Commitments),  (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest  thereon,  or  reduce  any fees  payable hereunder,  without the  written consent  of  each  Lender  directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of  any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce  the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration  of  any  Commitment,  without  the  written  consent  of  each  Lender  directly  affected  thereby,  (iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments  required thereby,  without  the  written  consent  of  each  Lender  directly  affected  thereby,  (v) change any of the provisions of this Section or the definition of “Required Lenders” or any  other provision hereof specifying the number or percentage of Lenders required to waive, amend  or  modify  any  rights  hereunder  or  make  any  determination  or grant  any  consent  hereunder,  without the written consent of all Lenders, or (vi) release the U.S. Borrower Guaranty without  the written consent of all Lenders (other than in connection with transactions permitted pursuant  to  this  Agreement); provided, further, that  (x)  no  such  agreement  shall  amend,  modify  or  otherwise affect the rights or duties of the Administrative Agent, any other Agent, any Issuing  Bank or the Swingline Lender hereunder without the prior written consent of the Administrative  Agent, such other Agent, such Issuing Bank or the Swingline Lender, as the case may be, and  (y) no such agreement shall amend, modify or otherwise affect the rights or duties of the Joint  Lead Arrangers or the Left Lead Arranger under Section 9.03 without the prior written consent  of the Joint Lead Arrangers or the Left Lead Arranger, as the case may be.         In  addition,  notwithstanding  the  foregoing,  the  Fee Letter  may  only  be  amended,  modified or changed,  or  rights  or  privileges  thereunder  waived,  only  by  the  parties thereto  in  accordance with the respective provisions thereof.                                        -99-                                           





 






         Any  amendment,  modification,  supplement,  termination,  waiver  or  consent  pursuant  to  this Section 9.02 shall apply equally to, and shall be binding upon, each of the Administrative  Agent and the Lenders.  Notwithstanding anything to the contrary herein, any Defaulting Lender  shall not have any right to approve or disapprove any amendment, waiver or consent hereunder,  except  that  (i) the  Commitment  of  such  Defaulting  Lender may  not  be  increased,  (ii) the  Applicable  Adjusted  Percentage  of  such  Defaulting  Lender  may  not  be  increased,  (iii) the  Maturity Date of any Loans of such Defaulting Lender may not be extended, and (iv) principal  and  interest  owing  to  such  Defaulting  Lender  may  not  be  reduced,  in each  case  without  the  consent of such Defaulting Lender.         Notwithstanding  anything  to  the  contrary contained  herein  or  in  any  other  Loan  Document, the authority to enforce the rights and remedies hereunder and under the other Loan  Documents against the Borrowers shall be vested exclusively in, and all actions and proceedings  at law in connection with such enforcement shall be instituted and maintained exclusively by, the  Administrative Agent in  accordance  with Section 7.01 for  the  benefit  of  all  the  Lenders;  provided,  however, that  the  foregoing  shall  not  prohibit  (a) the  Administrative  Agent  from  exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity  as Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Bank  from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing  Bank) hereunder and under the other Loan Documents or (c) any Lender from exercising set-off  rights  in  accordance  with Section 9.08 (subject  to  the  terms  of Section 2.18);  and provided,  further, that if at any time there is no Person acting as Administrative Agent hereunder and under  the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed  to the Administrative Agent pursuant to Section 7.01 and (ii) in addition to the matters set forth  in clauses (b) and (c) of the preceding proviso and subject to Section 2.18, any Lender may, with  the  consent  of  the  Required  Lenders,  enforce  any  rights and remedies  available  to  it  and  as  authorized by the Required Lenders.      Section 9.03. Expenses;  Indemnity;  Damage Waiver.   (a) The  U.S. Borrower  shall  pay  (i) all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent and the  Left Lead Arranger, including the reasonable fees, charges and disbursements of counsel for the  Administrative Agent and  the Left  Lead  Arranger,  in  connection  with  the  syndication  of  the  credit facilities  provided  for  herein,  the  preparation,  negotiation,  execution,  delivery and  administration  of  this  Agreement and  the  other  Loan  Documents or  any  amendments,  modifications  or  waivers  of  the  provisions  hereof or  thereof (whether  or  not  the  transactions  contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket fees and  expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or  extension of any Letter of Credit or any demand for payment thereunder, (iii) all reasonable out- of-pocket  fees and  expenses  of  the  Administrative  Agent  and  the  Left  Lead Arranger  in  connection with the use of any Platform (provided, however, that the U.S. Borrower shall have  no obligation to pay the costs of any upgrades or repairs to any Platform), (iv) any and all excise,  sales  or  other  similar  taxes  and (v) all  out-of-pocket  fees  and  expenses  incurred  by  the  Administrative  Agent,  the Issuing  Bank  and  the  Lenders,  including  the  fees,  charges  and  disbursements of any counsel for the Administrative Agent, the Issuing Bank and the Lenders, in  connection with the enforcement or protection of its rights in connection with this Agreement  and the other Loan Documents including its rights under this Section 9.03, or in connection with                                       -100-                                           





 






   the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket fees and  expenses incurred during any workout, restructuring or negotiations in respect of such Loans or  Letters of Credit.  The obligations of the U.S. Borrower under this Section 9.03(a) shall survive  the payment and performance of the Obligations and the termination of this Agreement.        (b)  The  U.S. Borrower  shall  indemnify  each of the  Joint  Lead  Arrangers,  the  Administrative  Agent,  the  Issuing  Bank,  the  Swingline  Lender,  each  of  the  Lenders  and  each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and  related  expenses,  including  the  fees,  charges  and  disbursements  of  any  counsel  for  any  Indemnitee,  incurred  by  or  asserted  against  any  Indemnitee by  any  Person (including  any  Borrower) other than such Indemnitee and its Related Parties arising out of, in connection with,  or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby or thereby, the performance by the parties hereto  of their respective obligations hereunder or thereunder or the consummation of the Transactions,  (ii) any  Loan  or Letter  of  Credit  or  the  use  by  the  U.S. Borrower  or  its  Subsidiaries  of  the  proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment  under  a Letter  of  Credit  if  the  documents  presented  in  connection  with  such  demand  do  not  strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or  release of Hazardous Materials on or from any property owned or operated by the U.S. Borrower  or  any of its  Subsidiaries,  or  any  Environmental  Liability  related  in  any  way  to  the  U.S. Borrower or any of its Subsidiaries, (iv) any claims for brokerage fees or commissions in  connection with the Loan Documents or in connection with any Borrower’s failure to conclude  any other financing, and to reimburse each Indemnitee on demand for all reasonable legal and  other  expenses  incurred  in  connection  with investigating  or  defending any  of the foregoing,  (v) the use of any Platform (provided, however, that the U.S. Borrower shall have no obligation  to indemnify any Indemnitee for the costs of any upgrades or repairs to any Platform), or (vi) any  actual  or  prospective  claim,  litigation,  investigation  or proceeding  relating  to  any  of  the  foregoing, whether based on contract, tort or any other theory, whether brought by a third party  or  by  any  Borrower, and  regardless  of  whether  any  Indemnitee  is  a  party  thereto,  and  the  U.S. Borrower shall reimburse each Indemnitee for all reasonable legal fees and other expenses  in connection with such Indemnitee’s investigation or defense of any of the foregoing; provided  that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,  claims,  damages,  liabilities  or  related  expenses (x) are  determined by a  court  of  competent  jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or  willful misconduct of such Indemnitee or its Related Parties or (y) result from a claim brought by  any  Borrower against  an  Indemnitee  for breach  in  bad  faith  of  such Indemnitee’s  obligations  hereunder  or  under  any  other  Loan  Document, if  such  Borrower has  obtained  a  final  and  nonappealable  judgment  in  its  favor  on such claim  as determined  by  a  court  of  competent  jurisdiction.  Upon receiving knowledge of any suit, claim or demand asserted by a third party  that  either  Joint  Lead  Arranger,  the  Administrative  Agent, the  Issuing  Bank, the  Swingline  Lender  or  any  Lender believes  is  covered  by  this  indemnity,  such  Joint  Lead  Arranger,  the  Administrative  Agent,  the  Issuing  Bank,  the  Swingline  Lender  or  such  Lender  shall  give  the  U.S. Borrower notice of the matter and such Joint Lead Arranger, the Administrative Agent, the  Issuing Bank, the Swingline Lender or such Lender may select its own counsel or request that  the  U.S. Borrower  defend  such  suit,  claim  or  demand,  with  legal  counsel  satisfactory  to  such                                       -101-                                           





 






   Joint Lead Arranger, the Administrative Agent, the Issuing Bank, the Swingline Lender or such  Lender, as the case may be, at the U.S. Borrower’s sole cost and expense; provided, however,  that such Joint Lead Arranger, the Administrative Agent, the Issuing Bank, the Swingline Lender  or  such Lender  shall  not  be  required  to  so notify  the  U.S. Borrower  and  such  Joint  Lead  Arranger, the Administrative Agent, the Issuing Bank, the Swingline Lender or such Lender shall  have the right to defend, at the U.S. Borrower’s sole cost and expense, any such matter that is in  connection with a formal proceeding instituted by any Governmental Authority having authority  to regulate or oversee any aspect of such Joint Lead Arranger’s, the Administrative Agent’s, the  Issuing Bank’s, the Swingline Lender’s or such Lender’s business or that of its Affiliates.  Such  Joint Lead Arranger, the Administrative Agent, the Issuing Bank, the Swingline Lender or such  Lender may also require the U.S. Borrower to defend the matter.  Notwithstanding the foregoing  provisions,  the Indemnitees  will  be  entitled  to  employ counsel  separate  from  counsel  for  the  U.S. Borrower  and  for  any  other  party in  such  action  if  any  such  Indemnitee  reasonably  determines that a conflict of interest or other reasonable basis exists that makes representation by  counsel chosen by the U.S. Borrower not advisable, all at the U.S. Borrower’s expense.  In the  event an Indemnitee (or any of its officers, directors or employees) appears as a witness in any  action or proceeding brought against the U.S. Borrower in which an Indemnitee is not named as  a  defendant,  the  U.S. Borrower  agrees  to  reimburse  such  Indemnitee  for  all  out-of-pocket  expenses incurred by it (including fees and expenses of counsel) in connection with its appearing  as a witness.  Any failure or delay of either Joint Lead Arranger, the Administrative Agent, the  Issuing Bank, the Swingline Lender or any Lender to notify the U.S. Borrower of any such suit,  claim or demand shall not relieve the U.S. Borrower of its obligations under this Section 9.03(b).   No Indemnitee  referred  to  above  shall  be  liable  for  any  damages  arising  from  the  use  by  unintended  recipients of  any  information  or  other  materials  distributed  to  such  unintended  recipients  by  such  Indemnitee  through telecommunications,  electronic or other  information  transmission  systems in  connection  with  this  Agreement  or  the  other  Loan  Documents  or  the  transactions  contemplated  hereby  or  thereby  other  than  for  direct  or  actual  damages  resulting  from the gross negligence or willful misconduct of such Indemnitee as determined by a final and  non-appealable  judgment  of  a  court  of  competent  jurisdiction.   The  U.S. Borrower  shall  not,  without the prior written consent of each Indemnitee affected thereby (which consent will not be  unreasonably withheld), settle any threatened or pending claim or action that would give rise to  the  right  of  any  Indemnitee  to  claim  indemnification  hereunder  unless  such  settlement  (x) includes a full and unconditional release of all liabilities arising out of such claim or action  against such Indemnitee and (y) does not include any statement as to or an admission of fault,  culpability or failure to act by or on behalf of any Indemnitee.  The U.S. Borrower agrees that no  Indemnitee shall have any liability (whether direct or indirect, in contract or tort, or otherwise) to  the U.S. Borrower or its Affiliates or to their respective equity holders or creditors arising out of,  related to or in connection with any aspect of the transactions contemplated hereby, except to the  extent such liability is determined in a final, nonappealable judgment by a court of competent  jurisdiction to have resulted from such Indemnitee’s own gross negligence or willful misconduct.  This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent  losses,  claims,  damages,  etc.  arising  from  any  non-Tax  claim. The  obligations  of  the  U.S. Borrower  under  this Section 9.03(b) shall  survive  the  payment  and  performance  of  the  Obligations and the termination of this Agreement.                                        -102-                                           





 






        (c)  To the  extent  that  the  U.S. Borrower for  any  reason fails  to indefeasibly pay  any  amount required to be paid by it to any Agent, Issuing Bank or Swingline Lender or any Related  Party  of  any  of  the  foregoing under paragraph (a)  or  (b) of  this Section 9.03,  each  Lender  severally agrees to pay to such Agent, Issuing Bank, Swingline Lender or such Related Party, as  the  case  may  be,  such  Lender’s  Applicable  Percentage  (determined  as  of  the  time  that  the  applicable  unreimbursed  expense  or  indemnity payment is  sought)  of  such  unpaid  amount  (including any such unpaid amount in respect of a claim asserted by such Lender); provided that  the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the  case may be, was incurred by or asserted against an Agent, Issuing Bank or Swingline Lender in  its capacity as such or against any Related Party of any of the foregoing acting for any Agent,  Issuing Bank or Swingline Lender in connection with such capacity.         (d)  To the fullest extent permitted by applicable law, the Borrowers shall not assert, and  hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect,  consequential  or  punitive  damages  (as  opposed  to  direct  or  actual damages)  arising out  of,  in  connection with, or as a result of, this Agreement, any other Loan Document or any agreement or  instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the  proceeds  thereof.  No  Indemnitee  referred  to  in  paragraph (b)  above  shall  be liable  for  any  damages  arising from  the use  by  unintended  recipients  of  any  information  or  other  materials  distributed by  it  through  telecommunications,  electronic  or  other  information  transmissions  systems  in  connection  with  this agreement  or  the other  Loan  Documents  or  the  transactions  contemplated hereby or thereby; provided that nothing in this Section 9.03(d) shall:  (i) prevent  any Indemnitee form incurring liability for any such damages to the extent caused by or arising  out of  any Indemnitee’s  gross  negligence  or  willful  misconduct,  as  determined  by  a  final,  non-appealable judgment of a court of competent jurisdiction; or (ii) in any way modify, reduce  or eliminate the duties and liabilities of the parties under Section 9.12 of this Agreement.        (e)  All amounts due under this Section shall be payable promptly after written demand  therefor.        (f)  Each party’s obligations under this Section 9.03 shall survive the termination of the  Loan Documents and payment of the obligations hereunder.      Section 9.04. Successors  and  Assigns.   (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 Bank that issues any Letter of  Credit), except that (i) the Borrowers may not assign or otherwise transfer any of their rights or  obligations  hereunder  without  the  prior  written  consent  of  the  Administrative  Agent and each  Lender (and any attempted assignment or transfer by any Borrower without such consent shall be  null  and  void), provided that  any  merger  of  any  Subsidiary  Borrower  with  other  Subsidiaries  shall not be deemed an assignment provided that the resulting entity assumes all Obligations of  such  Subsidiary Borrower  in  a  manner  acceptable  to  the  Administrative  Agent,  and  (ii) no  Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance  with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer  upon any Person (other than the parties hereto, their respective successors and assigns permitted  hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit or Swingline                                       -103-                                           





 






   Lender that makes any Swingline Loan), Participants (to the extent provided in paragraph (c) of  this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the  Administrative Agent, the Joint Lead Arrangers, the Issuing Bank, the Swingline Lender and the  Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.        (b)  (i) Subject  to  the  conditions  set  forth  in  paragraph (b)(ii)  below,  any  Lender  may  assign to one or more Eligible Assignees all or a portion of its rights and obligations under this  Agreement (including all or a portion of its Commitment and the Loans at the time owing to it)  with the prior written consent (such consent not to be unreasonably withheld) of:               (A)   the U.S. Borrower, provided that no consent of the U.S. Borrower shall be        required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if        an  Event  of  Default  has  occurred  and  is continuing,  any  other Eligible  Assignee;        provided, further, that the U.S. Borrower shall be deemed to have consented to any such        assignment  unless  it  shall  object  thereto  by  written notice  to  the  Administrative  Agent        within five 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  to  a  Lender,  an  Affiliate  of  a  Lender,  an        Approved Fund; and               (C)   if  such  assignment  would  result  in  such  Eligible  Assignee  becoming a        Lender, each of the Issuing Bank and the Swingline Lender.        (ii) Assignments shall be subject to the following additional conditions:               (A)   except in the case of an assignment to a Lender or an Affiliate of a Lender        or an assignment of the entire remaining amount of the assigning Lender’s Commitment        or Loans of any Class, the amount of the Commitment 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 U.S. Borrower and the Administrative        Agent  otherwise  consent, provided that  no  such  consent  of  the  U.S. Borrower  shall  be        required if an Event of Default has occurred and is continuing;               (B)   each partial assignment shall be made as an assignment of a proportionate        part of all the assigning Lender’s rights and obligations under this Agreement, provided        that this clause shall not be construed to prohibit the assignment of a proportionate part of        all the assigning Lender’s rights and obligations in respect of one Class of Commitments        or Loans;               (C)   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 (which fee is for the sole benefit of the Administrative Agent);        provided that the Administrative Agent may, in its sole discretion, elect to waive such        processing and recordation fee in the case of any assignment;                                        -104-                                           





 






               (D)   the  Eligible  Assignee, if  it  is not  a  Lender, shall  deliver  to  the        Administrative Agent an Administrative Questionnaire; and               (E)   notwithstanding the  provisions of  Section 9.04(b)(i), unless  an  Event  of        Default shall have occurred and shall then be continuing, no Lender shall assign all or        any portion of its rights and obligations under this Agreement to any Affiliate of such        Lender  or  any  Approved Fund  which, in  either  case,  is  an  EEA  Financial  Institution,        without the prior written consent of the U.S. Borrower.         For the purposes of this Section 9.04(b), the term “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)  of  this  Section, from  and after the effective  date  specified  in each  Assignment  and  Assumption  the  Eligible 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 2.15,  2.16,  2.17  and  9.03 with  respect  to  facts  and  circumstances occurring prior to the effective date of such assignment; provided, however, that  except  to  the  extent  otherwise  expressly  agreed  by  the  affected  parties,  no  assignment  by  a  Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising  from that Lender’s having been a Defaulting Lender.  Any assignment or transfer by a Lender of  rights or obligations under this Agreement that does not comply with this Section 9.04 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.       (iv)  The  Administrative  Agent, acting solely for  this  purpose  as  an  agent  of  the  Borrowers, 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  (including Lenders becoming party to this Agreement pursuant to a joinder as contemplated by  Section 2.23), and the Commitment of, and principal amount (and stated interest) of the Loans  and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the  “Register”).  In addition, the Administrative Agent shall maintain on the Register information  regarding the designation and revocation of designation, of any Lender as a Defaulting Lender.   The  entries  in  the  Register  shall  be  conclusive absent manifest error,  and  the  Borrowers,  the  Administrative Agent, the Issuing Bank 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.   The  Register  shall  be  available  for  inspection by the Borrowers, the Issuing Bank and any Lender, at any reasonable time and from  time to time upon reasonable prior notice.                                       -105-                                           





 






        (v)  Upon its receipt of a duly completed Assignment and Assumption executed by an  assigning  Lender  and  an  Eligible  Assignee,  the  Eligible  Assignee’s  completed  Administrative  Questionnaire (unless the Eligible Assignee shall already be a Lender hereunder), the processing  and recordation fee referred to in paragraph (b) of this Section and any written consent to such  assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such  Assignment  and  Assumption  and record  the  information  contained  therein  in  the  Register;  provided that if either the assigning Lender or the Eligible Assignee shall have failed to make  any  payment  required  to  be  made  by it  pursuant  to Section 2.05(c),  2.06(d) or  (e),  2.07(b),  2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment  and Assumption and record the information therein in the Register unless and until such payment  shall have been made in full, together with all accrued interest thereon.  No assignment shall be  effective for purposes of this Agreement unless it has been recorded in the Register as provided  in this paragraph.        (c)  (i) Any  Lender  may, without the  consent  of, or (except  as  provided  in the  last  sentence of this subsection (c)(i)) notice to, any Borrower, the Administrative Agent, the Issuing  Bank or the Swingline Lender, sell participations to any Person (other than a natural Person, or a  holding company, investment vehicle or trust for, or owned and operated for the primary benefit  of, a natural Person, or any Borrower or any of a Borrower’s Affiliates or Subsidiaries) (each, a  “Participant”)  in  all  or  a  portion of  such  Lender’s  rights  and/or obligations  under  this  Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided  that  (A)  such  Lender’s  obligations  under  this Agreement  shall  remain  unchanged,  (B) such  Lender shall remain solely responsible to the other parties hereto for the performance of such  obligations  and  (C) the  Borrowers,  the Administrative  Agent,  the  Issuing  Bank  and  the  other  Lenders  shall continue  to deal  solely  and  directly  with  such  Lender  in  connection  with such  Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender  shall be responsible for the indemnity under Section 8.04 with respect to any payments made by  such Lender to its Participant(s). Any agreement or instrument pursuant to which a Lender sells  such  a  participation shall  provide that such  Lender  shall  retain  the sole right to  enforce  this  Agreement  and  to  approve  any  amendment,  modification  or  waiver of  any  provision  of  this  Agreement; provided that such agreement or instrument may provide that such Lender will not,  without the  consent  of  the Participant,  agree  to any amendment,  modification  or  waiver  described  in  the  first  proviso  to  Section 9.02(b) that  affects  such  Participant.   Subject  to  paragraph (c)(ii) of this Section, the Borrowers agree that each Participant shall be entitled to the  benefits  of  Sections 2.15, 2.16  and  2.17 (subject  to  the  requirements  and  limitations  therein,  including  the  requirements  under  Section  2.17(f)  (it  being  understood  that  the documentation  required under Section 2.17(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.   To  the  extent  permitted  by  law, each  Participant  also  shall  be  entitled  to  the  benefits of  Section 9.08  as though  it  were  a  Lender, provided such  Participant  agrees  to  be  subject to Section 2.18(c) as though it were a Lender.  Any Lender that sells a participation shall  provide prompt written notice thereof to the U.S. Borrower, identifying the participant and the  amount of the interest sold.        (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15  or  2.17  than  the  applicable  Lender  would  have  been  entitled  to  receive  with  respect  to  the                                       -106-                                           





 






   participation sold to such Participant, unless the sale of the participation to such Participant is  made  with  the  U.S. Borrower’s  prior  written  consent.   A  Participant  that  would  be  a  Foreign  Lender  if  it  were  a  Lender  shall  not  be  entitled  to  the  benefits  of  Section 2.17  unless  the  U.S. Borrower  is  notified  of  the  participation sold to  such  Participant  and  such  Participant  agrees,  for  the  benefit  of the  Borrowers,  to  comply  with  Section 2.17(e)  as  though  it  were  a  Lender.       (iii) Each  Lender  that sells  a participation  shall,  acting  solely  for  this  purpose  as  a  non-fiduciary agent of  the  Borrowers,  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  (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)  to  any  Person  except  to  the extent  that  such  disclosure  is  necessary  to  establish  that  such  commitment,  loan,  letter  of  credit  or  other  obligation  is  in registered form  under  Section  5f.103-1(c)  of the  United  States  Treasury  Regulations.  The  entries  in  the  Participant Register shall be conclusive absent manifest error, and such Lender shall treat each  Person whose name is recorded in the Participant Register as the owner of such participation for  all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of  doubt,  the  Administrative  Agent  (in  its  capacity  as Administrative  Agent)  shall  have no  responsibility  for maintaining  a  Participant  Register.  Nothing  in this  subsection (c)(iii)  shall  eliminate or modify the Lenders’ obligation to provide notice to the U.S. Borrower of any sale of  participation interest, as provided in Section 9.04(c)(i).        (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  without  limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this  Section 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.        (e)  In  connection with any  assignment  of  rights  and  obligations  of  any  Defaulting  Lender hereunder, no such assignment shall be effective unless and until, in addition to the other  conditions  thereto  set  forth  herein,  the  parties  to  the  assignment  shall make  such  additional  payments  to  the  Administrative  Agent  in  an  aggregate  amount  sufficient,  upon distribution  thereof  as  appropriate  (which  may  be  outright  payment,  purchases  by  the  assignee  of  participations  or  subparticipations,  or  other  compensating  actions,  including  funding, with the  consent  of  the  U.S. Borrower  and  the  Administrative  Agent,  the applicable  pro  rata  share  of  Loans  previously  requested  but  not  funded  by the  Defaulting  Lender,  to  each  of  which  the  applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all  payment liabilities then owed by such Defaulting Lender to the Administrative Agent, Issuing  Bank, Swingline Lender or any Lender hereunder (and interest accrued thereon), and (y) acquire  (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit  and  Swingline  Loans  in  accordance  with  its Applicable  Percentage.   Notwithstanding  the  foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender                                       -107-                                           





 






   hereunder  shall  become  effective  under  Requirements  of  Law  without  compliance  with the  provisions  of  this  paragraph,  then  the  assignee  of  such  interest  shall  be  deemed  to  be  a  Defaulting Lender for all purposes of this Agreement until such compliance occurs.      Section 9.05. Survival.  All covenants, agreements, representations and warranties made  by the Borrowers herein and in the certificates or other instruments delivered in connection with  or pursuant to this Agreement shall be considered to have been relied upon by the other parties  hereto and shall  survive  the  execution  and  delivery  of  this  Agreement  and  the  making  of  any  Loans and issuance of any Letters of Credit, regardless of any investigation made by any such  other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank  or any Lender may have had notice or knowledge of any Default or incorrect representation or  warranty at the time any credit is extended hereunder, and shall continue in full force and effect  as long as the principal of or any accrued interest on any Loan or any fee or any other amount  payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding  and  so  long as  the  Commitments  have not  expired  or  terminated.   The  provisions  of  Sections  2.15,  2.16,  2.17  and 9.03  and  Article VIII  shall  survive  and  remain  in  full  force  and  effect  regardless of the consummation of the transactions contemplated hereby, the repayment of the  Loans,  the expiration  or  termination  of  the  Letters  of  Credit  and  the  Commitments  or  the  termination of this Agreement or any provision hereof.      Section 9.06. Counterparts;  Integration;  Effectiveness;  Electronic Execution.  (a) This  Agreement  may  be executed  in  counterparts  (and  by  different  parties  hereto  on  different  counterparts), each of which shall constitute an original, but all of which when taken together  shall  constitute  a  single  contract.   This  Agreement and  the  other  Loan  Documents and  any  separate letter agreements with respect to fees payable to the Administrative Agent constitute the  entire contract among the parties relating to the subject matter hereof and supersede any and all  previous agreements and understandings, oral or written, relating to the subject matter hereof.   Except as provided in Section 4.01, this Agreement shall become effective when it shall have  been  executed  by  the  Administrative  Agent  and when the  Administrative  Agent  shall  have  received counterparts hereof which, when taken together, bear the signatures of each of the other  parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto  and their respective successors and assigns.  Delivery of an executed counterpart of a signature  page of this Agreement by telecopy or in electronic (i.e., “pdf” or “tif”) format shall be effective  as delivery of a manually executed counterpart of this Agreement.        (b)  The words “execution,”  “signed,”  “signature,”  and  words  of  like  import  in  any  Assignment and Assumption shall be deemed to include electronic signatures or the keeping of  records in  electronic  form,  each of  which  shall  be of  the  same  legal effect,  validity  or  enforceability  as  a  manually  executed  signature  or  the  use  of  a  paper-based  recordkeeping  system, as the case may be, to the extent and as provided for in any applicable law, including the  Federal  Electronic Signatures  in Global  and  National  Commerce  Act, the  New  York  State  Electronic  Signatures  and  Records  Act,  or  any  other  similar state  laws  based  on  the  Uniform  Electronic Transactions Act.      Section 9.07. Severability.  Any provision of this Agreement held to be invalid, illegal or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such                                       -108-                                           





 






   invalidity, illegality or unenforceability without affecting the validity, legality and enforceability  of  the  remaining  provisions hereof;  and  the  invalidity  of  a  particular  provision  in  a  particular  jurisdiction shall not invalidate such provision in any other jurisdiction.      Section 9.08. Right  of  Setoff.   If  an Event  of  Default  shall have  occurred  and  be  continuing,  each  Lender,  each  Issuing  Bank and  each  of their  respective Affiliates  is  hereby  authorized at any time and from time to time, to the fullest extent permitted by applicable law, to  set off and apply any and all deposits (general or special, time or demand, provisional or final, in  whatever  currency) at  any  time  held  and  other  obligations (in  whatever  currency) at  any  time  owing by such Lender, such Issuing Bank or any such Affiliate, to or for the credit or the account  of any Borrower  against  any  and  all of the  obligations  of  such  Borrower  now  or  hereafter  existing under this Agreement or any other Loan Document to such Lender or such Issuing Bank  or  their  respective Affiliates,  irrespective  of  whether or  not  such  Lender, Issuing  Bank  or  Affiliate shall have made any demand under this Agreement or any other Loan Document and  although such obligations of any Borrower may be contingent or unmatured or are owed to a  branch, office or Affiliate of such Lender or such Issuing Bank different from the branch, office  or Affiliate holding such deposit or obligated on such indebtedness; provided, however, that in  the event that 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 Section 2.24 and, pending such payment, shall be segregated  by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the  Administrative Agent, the Issuing Banks, and the Lenders, and (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 setoff.  The  rights of each Lender, each Issuing Bank and their respective Affiliates under this Section are in  addition  to  other  rights  and  remedies  (including other  rights  of setoff) that such  Lender,  such  Issuing Bank or their respective Affiliates may have.  Each Lender and Issuing Bank agrees to  notify  the  U.S. Borrower  and  the  Administrative  Agent  promptly  after  any  such  setoff  and  application; provided that  the  failure  to give such  notice  shall  not  affect  the  validity  of  such  setoff and application.      Section 9.09. Governing  Law;  Jurisdiction;  Consent  to  Service of Process.   (a) This  Agreement and the  other Loan Documents  and  any  claims,  controversy, dispute  or  cause  of  action (whether in contract or in tort or otherwise) based upon, arising out of or relating to this  Agreement or any other Loan Document (except, as to any other Loan Document, as expressly  set  forth  therein) and  the  transactions contemplated  hereby  and  thereby shall  be  construed  in  accordance with and governed by the law of the State of New York.        (b)  Each  Borrower  hereby  irrevocably  and  unconditionally  submits,  for  itself and  its  property, to the nonexclusive jurisdiction of any court of the State of Illinois and any court of the  United States District Courts sitting in Illinois, and any appellate court from any thereof, in any  action  or  proceeding  arising  out  of  or  relating to  this Agreement,  or for  recognition  or  enforcement  of any  judgment,  and  each  of  the  parties  hereto  hereby  irrevocably  and  unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of  any such action, litigation or proceeding may be heard and determined in such Illinois State court  or, to the fullest extent permitted by applicable law, in such federal court.  Each of the parties                                       -109-                                           





 






   hereto  agrees  that  a  final  judgment  in  any  such  action,  litigation or  proceeding  shall  be  conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other  manner provided by law.  Nothing in this Agreement or any other Loan Document shall affect  any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to  bring any action or proceeding relating to this Agreement or any other Loan Document against  any Borrower or its properties in the courts of any jurisdiction.        (c)  Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent  permitted by applicable law, any objection which it may now or hereafter have to the laying of  venue of any suit, action or proceeding arising out of or relating to this Agreement or any other  Loan  Document in  any  court  referred  to  in  paragraph (b) of  this  Section.   Each  of  the  parties  hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of  an inconvenient forum to the maintenance of such action or proceeding in any such court.        (d)  Each  party  to  this  Agreement  irrevocably  consents  to service  of  process in the  manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the right of  any party to this Agreement to serve process in any other manner permitted by applicable law.      Section 9.10. Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY  JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS  AGREEMENT  OR  THE  TRANSACTIONS  CONTEMPLATED  HEREBY (WHETHER  BASED  ON  CONTRACT,  TORT  OR  ANY OTHER  THEORY).  EACH  PARTY  HERETO (A) CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT  SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING  WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED  TO  ENTER  INTO  THIS AGREEMENT  BY, AMONG  OTHER THINGS, THE  MUTUAL  WAIVERS  AND  CERTIFICATIONS IN THIS SECTION.      Section 9.11.   Headings.  Article and  Section headings  and  the  Table  of  Contents  used  herein are for convenience of reference only, are not part of this Agreement and shall not affect  the construction of, or be taken into consideration in interpreting, this Agreement.      Section 9.12.   Confidentiality.   Each  of  the  Administrative  Agent,  the  Issuing Bank  and  the Lenders agrees to maintain the confidentiality of the Information (as defined below), except  that  Information  may  be  disclosed  (a) to  its  and  its Affiliates  and  Related  Parties (it  being  understood  that  the  Persons  to whom  such  disclosure  is made  will  be  informed  of  the  confidential  nature  of  such Information  and  instructed  to  keep  such  Information  confidential),  (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction  over  such  Person  or  its  Related Parties (including any self-regulatory  authority,  such  as the  National Association of Insurance Commissioners), (c) to the extent required by applicable laws  or regulations  or  by  any  subpoena  or  similar  legal  process,  (d) to  any  other  party  to  this  Agreement,  (e) in  connection  with  the  exercise  of  any  remedies hereunder  or under  any  other  Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan  Document  or the  enforcement  of  rights  hereunder or thereunder,  (f) subject to  an  agreement  containing provisions substantially the same as those of this Section, to (i) any assignee of or                                       -110-                                           





 






   Participant in, or any prospective assignee of or Participant in, any of its rights or obligations  under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any  swap or derivative transaction relating to any Borrower and its obligations, (g) with the consent  of the U.S. Borrower or (h) to the extent such Information (i) becomes publicly available other  than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent,  the Issuing Bank or any Lender or any of their respective Affiliates on a nonconfidential basis  from a source other than a Borrower.  In addition, the Administrative Agent and the Lenders may  disclose the existence of this Agreement and information about this Agreement to market data  collectors, similar service providers to the lending industry and service providers to the Agents  and  the  Lenders  in  connection  with the  administration of  this Agreement,  the  other  Loan  Documents  and  the  Commitments. For  the  purposes  of  this  Section,  “Information”  means all  information received from any Borrower relating to the U.S. Borrower or any of its Subsidiaries  or their business, other than any such information that is available to the Administrative Agent,  the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by a Borrower.   Any  Person  required  to  maintain  the  confidentiality  of  Information  as  provided  in this  Section shall be  considered  to  have  complied with  its obligation  to  do  so  if  such  Person  has  exercised  the  same  degree  of  care  to  maintain  the confidentiality  of  such  Information  as  such  Person would accord to its own confidential information.      Section 9.13.   Interest Rate Limitation.  Notwithstanding anything herein to the contrary,  if at any time the interest rate applicable to any Loan, together with all fees, charges and other  amounts  which  are treated  as interest  on  such  Loan  under  applicable  law  (collectively  the  “Charges”),  shall  exceed  the  maximum  lawful  rate  (the “Maximum  Rate”)  which  may be  contracted  for,  charged,  taken,  received  or  reserved  by  the  Lender  holding  such  Loan  in  accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,  together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and,  to the extent lawful, the interest and Charges that would have been payable in respect of such  Loan but were not payable as a result of the operation of this Section shall be cumulated and the  interest  and  Charges  payable  to  such Lender  in  respect  of  other  Loans  or  periods  shall  be  increased  (but  not above  the  Maximum  Rate therefor)  until  such  cumulated  amount, together  with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have  been received by such Lender.      Section 9.14.   USA PATRIOT Act; Anti-Money  Laundering  Laws.  Each Lender that  is  subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law  October 26,  2001))  (the “Patriot  Act”) or  any  other  Anti-Money  Laundering  Laws hereby  notifies each Borrower that pursuant to the requirements of the Patriot Act or such other Anti- Money Laundering Laws, it is required to obtain, verify and record information that identifies  each Borrower, which information includes the name and address of each Borrower and other  information that will allow such Lender to identify each Borrower in accordance with the Patriot  Act or such other Anti-Money Laundering Laws.      Section 9.15.   Conversion of Currencies.  (a) If, for the purpose of obtaining judgment in  any  court,  it  is  necessary  to  convert a  sum  owing  hereunder  in  one currency into  another  currency, each party hereto (including any Subsidiary Borrower) agrees, to the fullest extent that  it may effectively do so, that the rate of exchange used shall be that at which in accordance with                                       -111-                                           





 






   normal banking procedures in the relevant jurisdiction the first currency could be purchased with  such other currency on the Business Day immediately preceding the day on which final judgment  is given.         (b)  The obligations of each Borrower in respect of any sum due to any party hereto or  any holder of  the obligations  owing  hereunder  (the “Applicable  Creditor”)  shall,  notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency  in  which  such  sum  is  stated  to  be  due  hereunder  (the “Agreement  Currency”),  be  discharged  only to the extent that, on the Business Day following receipt by the Applicable Creditor of any  sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance  with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency  with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than  the  sum  originally  due  to  the Applicable  Creditor in  the  Agreement  Currency,  such  Borrower  agrees, as  a  separate  obligation  and notwithstanding any  such  judgment,  to  indemnify the  Applicable  Creditor  against  such  loss.   The  obligations  of  the  Borrowers  contained  in  this  Section 9.15  shall  survive  the  termination  of  this  Agreement  and  the  payment  of  all other  amounts owing hereunder.      Section 9.16.   Waivers and Agreements.  (a) The covenants, agreements and obligations of  each Borrower  set  forth  herein are  joint  and  several  and  shall  be  primary  obligations  of  such  Borrower, and, to the extent not prohibited by applicable law, such obligations shall be absolute  and  unconditional,  shall  not  be  subject  to  any  counterclaim,  set-off, deduction,  diminution,  abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict  compliance  by  each Borrower with  its  obligations  hereunder)  based  upon  any  claim  such  Borrower, any other Borrower or any other Person may have against the Administrative Agent,  the Lenders or any other Person, and shall remain in full force and effect without regard to, and  shall  not  be  released,  discharged  or  in  any way  affected  by,  any  circumstance  or  condition  whatsoever,  foreseeable  or unforeseeable  and  without regard  to  whether  such  Borrower,  any  other Borrower,  the  Administrative Agent  or any  Lender  shall  have  any  knowledge  or notice  thereof, including, without limitation:                (i)  any  termination,  amendment,  modification,  addition,  deletion  or        supplement to or other change to any of the terms of any Loan Document in accordance        with its terms or any other instrument or agreement applicable to any of the parties hereto        or thereto, or any assignment or transfer of any thereof, or any furnishing or acceptance        or release of additional security for any Obligation or for the obligations of any Person        under any Loan Document, or the failure of any security or the failure of any Person to        perfect  any  interest  in  any  collateral;  any  waiver  of,  or  extension  of  time  for the        performance  of,  the  payment,  performance  or  observance  of  any  of  the  obligations,        conditions,  covenants  or  agreements  contained  in  any  Loan  Document,  or  any  other        waiver,  forbearance,  consent,  extension,  renewal,  indulgence,  compromise,  release,        settlement, refunding  or  other  action  or  inaction  under or  in  respect  of  any  Loan        Document or any other instrument or agreement, or under or in respect of any obligation        or liability of each Borrower, or the Administrative Agent or any exercise or non-exercise        of any right, remedy, power or privilege under or in respect of any such instrument of        agreement or any such obligation or liability;                                       -112-                                           





 






               (ii)  any failure, omission or delay on the part of the Administrative Agent to        enforce,  assert  or  exercise  any  right,  power or  remedy  conferred  on  it  in  any Loan        Document to give notice to any Borrower of the occurrence of an Event of Default;               (iii) any  voluntary  or  involuntary  bankruptcy,  insolvency,  reorganization,        moratorium, assignment for the benefit of creditors, receivership, liquidation, marshaling        of assets and liabilities or similar proceedings with respect to any Borrower or any other        Person  or  any  of  their  respective  properties  or  creditors,  or  any  action  taken  by  any        trustee or receiver or by any court in any such proceeding;               (iv)  any  limitation  on  the  liability  or  obligations  of  any  Borrower under any        Loan Document or any other instrument or agreement, which may now or hereafter be        imposed  by  law,  or  any  discharge,  termination,  cancellation, frustration,  irregularity,        invalidity or unenforceability, in whole or in part, of any thereof; or                (v)   any other  occurrence,  circumstance,  happening  or  event  whatsoever,        whether similar or dissimilar to the foregoing, whether foreseen or unforeseen, and any        other  circumstance  (other  than  full  and  irrevocable  performance and  payment  of  the        Obligations) which  might  otherwise  constitute  a  legal  or  equitable  defense,  release  or        discharge or which might otherwise limit recourse against each Borrower, whether or not        such Borrower shall have notice or knowledge of the foregoing.        (b)  Each Borrower hereby waives, to the fullest extent permitted by law, (i) all rights, if  any, of marshalling of any collateral or security for the Obligations and (ii) any right (except as  shall be required by applicable statute and cannot be waived) to require the Administrative Agent  or  any  Lender to  (A) proceed  against  the other  Borrower  or  any  other  Person,  (B) proceed  against or exhaust any other collateral or security for any of the Obligations or (C) pursue any  remedy  in  the  Administrative  Agent’s  or  any  Lender’s  power  whatsoever.   Each  Borrower  hereby waives any defense based on or arising out of any defense of the other Borrower or any  other  Person  other  than  payment  in  full  of the  Obligations,  including,  without  limitation,  any  defense based on or arising out of the disability of the other Borrower or any other Person, or the  enforceability of the Obligations or any part thereof from any cause, or the cessation from any  cause of the liability of the other Borrower other than payment in full of the Obligations.  Subject  to the terms of this Agreement, the Administrative Agent may, at its election, foreclose on any  security held by the Administrative Agent by one or more judicial or non-judicial sales, whether  or  not  every  aspect  of  any  such  sale is  commercially  reasonable  (to the extent  such  sale  is  permitted  by applicable  law),  or exercise  any  other  right  or  remedy  the  Administrative  Agent  may have against the other Borrower or any other Person, or any security, without affecting or  impairing in any way the liability of any Borrower hereunder except to the extent the Obligations  have been paid in full.        (c)  Each  Borrower waives  any  defense,  right  of  set-off,  claim  or counterclaim  whatsoever and any and all other rights, benefits, protections and other defenses available to it  now or at any time hereafter.                                        -113-                                           





 






        (d)  Each Borrower  represents  and  warrants  that  it  is  fully  aware  of the  financial  condition of the other Borrowers, and each Borrower delivers this Agreement based solely upon  its own independent investigation of the other Borrowers’ financial condition and in no part upon  any representation or statement of the Administrative Agent or any Lender with respect thereto.   Each Borrower further represents and warrants that it is in a position to and hereby does assume  full  responsibility  for obtaining such  additional  information  concerning  the  other  Borrowers’  financial condition as each Borrower may deem material to its obligations hereunder, and each  Borrower is not relying upon, nor expecting the Administrative Agent or any Lender to furnish it  any information in the Administrative Agent’s or any Lender’s possession concerning the other  Borrowers’  financial  condition  or  concerning  any circumstances  bearing  on the  existence  or  creation,  or  the  risk  of nonpayment  or  nonperformance  of the  Obligations.  Each  Borrower  hereby waives any duty on the part of the Administrative Agent and the Lenders to disclose to  each Borrower any facts the Administrative Agent or any Lender may now or hereafter know  about the other Borrowers, regardless of whether the Administrative Agent or such Lender has  reason  to  believe  that  any  such  facts  materially  increase  the  risk  beyond  that  which  each  Borrower  intended  to  assume  or  has reason  to  believe  that  such  facts  are  unknown  to  such  Borrower.        (e)  In  addition to  any other  waivers,  agreements  and  covenants  of  the Borrowers  set  forth  herein,  each  Borrower  hereby  further  waives  and  releases  all  claims,  causes  of  action,  defenses and offsets for any act or omission of the Lenders or the Administrative Agent and each  of their respective directors, officers, employees, representatives and agents in connection with  administration  of  the  Loans,  except  for  any  Lender’s  or  the  Administrative Agent’s  willful  misconduct or gross negligence as determined by a final, non-appealable judgment of a court of  competent jurisdiction.      Section 9.17.   Clarification.  Notwithstanding anything to the contrary, the parties hereto  understand and agree that Wells Fargo is acting in various capacities under this Agreement and  the  other  Loan  Documents  and  therefore  shall  be  permitted to  fulfill  its  roles  and  manage  its  various duties hereunder in such manner as Wells Fargo sees fit and, for the avoidance of doubt,  in  lieu  of  sending  notices  to  itself  when  acting  in  different capacities,  Wells  Fargo  may  keep  internal  records  regarding all  such  communications,  notices  and  actions  related  to  this  Agreement and the other Loan Documents in accordance with its past practice.      Section 9.18. Acknowledgement and Consent  to  Bail-In  of  EEA  Financial  Institutions.   Notwithstanding anything  to  the  contrary  in  any  Loan  Document  or  in  any  other  agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any EEA Financial Institution arising under any Loan Document, to the extent such  liability  is  unsecured,  may  be  subject  to  the  write-down  and  conversion  powers  of an  EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:               (a)   the  application  of  any  Write-Down  and Conversion  Powers by an  EEA        Resolution Authority to any such liabilities arising hereunder which may be payable to it        by any party hereto that is an EEA Financial Institution; and                                        -114-                                           





 






               (b)   the  effects  of any Bail-In  Action  on  any  such  liability, including,  if        applicable:                       (i)  a reduction in full or in part or cancellation of any such liability;                      (ii)  a  conversion of  all,  or  a  portion  of,  such  liability  into  shares  or              other  instruments  of  ownership  in  such  EEA  Financial  Institution,  its  parent              undertaking, or a bridge institution that may be issued to it or otherwise conferred              on it, and that such shares or other instruments of ownership will be accepted by it              in lieu of any rights with respect to any such liability under this Agreement or any              other Loan Document; or                     (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.      Section 9.19. Amendment and Restatement.  It is intended by the parties hereto that (a) all  Obligations  of  the  parties  under  the  Existing  Agreement  shall  continue  to  exist  under  and  be  evidenced by this Agreement and the other Loan Documents; and (b) except as expressly stated  herein or amended hereby, the Existing Agreement and the other Loan Documents are ratified  and  confirmed  as remaining unmodified  and  in  full  force and  effect  with  respect  to  all  Obligations; it being understood that it is the intent of the parties hereto that this Agreement does  not constitute a novation of rights, obligations and liabilities of the respective parties (including  the  Obligations)  existing  under  the  Existing  Agreement  and  such  rights,  obligations  and  liabilities shall continue and remain outstanding, and that this Agreement amends, restates and  replaces in its entirety the Existing Agreement.  From and after the Restatement Effective Date,  all Obligations of the Borrowers under the Existing Agreement shall become Obligations of such  Persons hereunder, and all Obligations, if any, of the Subsidiary Borrowers shall become fully  and  continuously  guaranteed  by  the  U.S. Borrower  pursuant  to the  U.S. Borrower Guaranty.   Upon the effectiveness of this Agreement in accordance with Section 4.01, each Loan Document  other  than  the  Existing Agreement  that  was  in  effect  immediately prior  to  the  Restatement  Effective Date shall continue  to  be  effective  and,  unless  the context  otherwise  requires,  any  reference to the Existing Agreement contained therein shall be deemed to refer to this Agreement  and  any  reference  to  the  Loans  or  Obligations  shall  be  deemed  to  refer to the  Loans  and  Obligations under this Agreement.  This Agreement, and each of the amendments to the Existing  Agreement effected hereby on the Restatement Effective Date, is binding on each Lender party  to  the  Existing  Agreement  as  of the  Restatement  Effective  Date,  other  than  each  Departing  Lender.       Section 9.20. Departing  Lenders;  Equalization  of Outstanding  Obligations.   (a) Departing  Lenders.  Upon  the  satisfaction of  the conditions  precedent  set  forth  in  Section 4.02 hereof,  the  Lenders hereby  agree  to  purchase  in  the  aggregate  100%  of  each  Departing  Lender’s  outstanding  Obligations  under  the  Existing Agreement  (including,  without  limitation,  all  of  the  Loans  held  by  the Departing Lender)  for  a  purchase  price  equal  to the  outstanding principal balance of the Loans and accrued but unpaid interest and related fees owed  to each Departing Lender under the Existing Agreement as of the Restatement Effective Date,                                       -115-                                           





 






   which purchase price shall be paid in Dollars in immediately available funds on the Restatement  Effective Date.  Such purchases shall be arranged through the Administrative Agent.               (b)  Equalization  of  Outstanding  Obligations. Upon the  satisfaction  of  the  conditions precedent set forth in Section 4.02 hereof, all Loans outstanding under, and as defined  in, the Existing Agreement, including all Eurocurrency Loans, shall remain outstanding as part of  the initial Borrowing of Loans under this Agreement.  On the Restatement Effective Date, the  Lenders  each agree to  make  such  purchases  and  sales  of  interests  in  the outstanding  Loans  between themselves so that each Lender is then holding its Applicable Adjusted Percentage of  outstanding  Loans.   Such  purchases  and  sales shall  be arranged  through  the  Administrative  Agent, and each Lender hereby agrees to execute such further instruments and documents, if any,  as the Administrative Agent may reasonably request in connection therewith.      Section 9.21. 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, the Joint Lead Arrangers and  their  respective  Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that at least  one of the following is and will be true:                (i)  such  Lender  is  not  using “plan  assets” (within  the  meaning  of  Section        3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s        entrance  into,  participation  in,  administration  of  and  performance  of 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,                                       -116-                                           





 






         participation in, administration of and performance of the Loans, the Letters of Credit, the        Commitments and this Agreement; or               (iv)  such  other  representation,  warranty  and  covenant  as  may  be  agreed  in        writing between the Administrative Agent, in its sole discretion, and such Lender.         (b)   In addition, unless either (1) sub-clause (i) in the immediately preceding clause  (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty  and covenant in accordance with 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,  the Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or  for the benefit of any Borrower, that none of the Administrative Agent, the Joint Lead Arrangers  and their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in  such Lender’s entrance into, participation in, administration of and performance of the Loans, the  Letters  of  Credit,  the  Commitments  and  this  Agreement  (including  in  connection  with  the  reservation  or  exercise  of  any  rights by  the  Administrative  Agent  under this Agreement,  any  Loan Document or any documents related hereto or thereto).      Section 9.22. Acknowledgment Regarding any Supported QFCs .  To the extent that the  Loan  Documents provide support,  through  a  guarantee  or  otherwise,  for Swap 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 FDIC 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):               (a)   In the event a Covered Entity that is party to a Supported QFC (each, a        “Covered  Party”)  becomes  subject  to  a  proceeding  under  a  U.S.  Special  Resolution        Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support        (and any interest and obligation in or under such Supported QFC and such QFC Credit        Support, and any rights in property securing such Supported QFC or such QFC Credit        Support)  from  such  Covered  Party  will  be  effective  to  the  same  extent as  the  transfer        would be effective under the U.S. Special Resolution Regime if the Supported QFC and        such QFC Credit Support (and any such interest, obligation and rights in property) were        governed by the laws of the United States or a state of the United States. In the event a        Covered  Party  or  a  BHC  Act  Affiliate  of  a  Covered  Party  becomes subject  to  a        proceeding  under  a  U.S.  Special  Resolution  Regime,  Default  Rights  under  the  Loan        Documents  that  might  otherwise  apply  to such  Supported  QFC  or  any  QFC  Credit        Support that may be exercised against such Covered Party are permitted to be exercised        to no greater extent than such Default Rights could be exercised under the U.S. Special        Resolution Regime if the Supported QFC and the Loan Documents were governed by the                                       -117-                                           





 






         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.                 (b)   As  used in this Section 9.22,  the  following  terms  have  the  following        meanings:                     “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.                   “Covered Entity” means any of the following:                       (i) a “covered  entity” as  that  term  is  defined  in,  and  interpreted  in                accordance with, 12 C.F.R. § 252.82(b);                       (ii) a “covered  bank” as  that  term  is  defined  in,  and  interpreted in                accordance with, 12 C.F.R. § 47.3(b); or                       (iii) a “covered  FSI” as  that  term is defined  in,  and  interpreted  in                accordance with, 12 C.F.R. § 382.2(b).                   “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.                   “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).                                     ARTICLE X                                                                 COLLECTION ALLOCATION MECHANISM     Section 10.01.   Implementation of CAM.   (a) On  the CAM  Exchange  Date,  (i) the  Commitments  and  the  Ancillary  Commitments  shall  automatically  and without  further  act  be  terminated as provided in Article VII, (ii) the principal amount of each Loan denominated in a  Foreign Currency shall, automatically and with no further action required, be converted into the  Dollar Equivalent,  determined  using  the Exchange  Rates  calculated as  of  the  CAM  Exchange  Date, of such amount and on and after such date all amounts accruing and owed to any Lender in  respect  of  such  Obligations  shall  accrue  and  be  payable  in  Dollars  at  the  rates otherwise  applicable  hereunder  and (iii) each  Lender  shall automatically  and without  further  act  (and  without  regard to the  provisions  of  Section 9.04)  immediately  be  deemed  to  have  acquired  participations in the Swingline Loans, Revolving Loans, Ancillary Loans and Letters of Credit  (including each  Reserve  Account  established  pursuant  to  Section 10.02  below)  in  an amount  equal to such Lender’s CAM Percentage.  Each Lender shall make payments to the Applicable  Agent  for  such  participations,  and  the  Applicable  Agent  shall  distribute  such  payments to  the                                      -118-                                           





 






   appropriate Lender, in  such  manner  and  pursuant  to  such  procedures determined  by  the  Administrative Agent.  Each Lender and each Borrower hereby consents and agrees to the CAM  Exchange, and each Lender agrees that the CAM Exchange shall be binding upon its successors  and assigns and any person that acquires a participation in its interests in any Advance.  Each  Borrower agrees from time to time to execute and deliver to the Administrative Agent all such  promissory  notes  and  other  instruments and  documents  as  the  Administrative  Agent  shall  reasonably request to evidence and confirm the respective interests of the Lenders after giving  effect  to  the  CAM  Exchange,  and  each  Lender  agrees  to  surrender  any  promissory notes  originally  received  by  it  in connection  with  its  Loans  hereunder  to  the Administrative  Agent  against  delivery of any  promissory  notes  evidencing  its  interests  in  the  Loans  and  Ancillary  Loans so executed and delivered; provided, however, that the failure of any Borrower to execute  or deliver or of any Lender to accept any such promissory note, instrument or document shall not  affect the validity or effectiveness of the CAM Exchange.        (b)  As a result of the CAM Exchange, upon and after the CAM Exchange Date, each  payment  received  by the  Applicable  Agent  pursuant  to  any  Loan  Document  in  respect  of  the  Revolving Credit Exposures  and  the  Ancillary  Facility  Exposures  shall  be  distributed  to  the  Lenders  pro  rata  in  accordance  with  their  respective  CAM  Percentages.   Any direct  payment  received  by a  Lender  upon  or  after  the CAM  Exchange  Date,  including  by  way  of  set-off, in  respect of any Revolving Credit Exposure or Ancillary Facility Exposure shall be paid over to  the Applicable Agent for distribution to the Lenders in accordance herewith.     Section 10.02.   Letters of  Credit.   (a) In  the  event  that  on  the  CAM  Exchange  Date  any  Letter of Credit shall be outstanding and undrawn in whole or in part, or any LC Disbursement  shall not have been reimbursed either by the U.S. Borrower or with the proceeds of a Borrowing,  each Lender  shall  promptly  pay  over  to  the  Administrative  Agent,  in  immediately  available  funds,  an  amount  equal  to  the  Dollar  Equivalent  of  such Lender’s  CAM Percentage  of  such  undrawn face amount or (to the extent it has not already done so) such unreimbursed drawing, as  applicable, together with interest thereon from the CAM Exchange Date to the date on which  such amount shall be paid to the Administrative Agent at the rate that would be applicable at the  time to an ABR Revolving Loan in a principal amount equal to such undrawn face amount or  unreimbursed  drawing,  as  applicable.   The  Administrative  Agent  shall  establish  a  separate  account (each, a “Reserve Account”) or accounts for each Lender for the amounts received with  respect  to  each  such  Letter  of  Credit  pursuant  to  the  preceding  sentence.   The  Administrative  Agent shall deposit in each Lender’s Reserve Account such Lender’s CAM Percentage of the  amounts received  from  the  Lenders as  provided  above.  The  Administrative  Agent  shall  have  sole dominion  and  control over  each  Reserve  Account,  and  the  amounts  deposited  in  each  Reserve  Account  shall  be  held  in  such  Reserve  Account  until  withdrawn  as provided  in  paragraph (b), (c), (d) or (e) below.  The Administrative Agent shall maintain records enabling it  to determine the amounts paid over to it and deposited in the Reserve Accounts in respect of  each Letter of Credit and the amounts on deposit in respect of each Letter of Credit attributable  to each Lender’s CAM Percentage.  The amounts held in each Lender’s Reserve Account shall  be held as a reserve against the LC Exposures, shall be the property of such Lender, shall not  constitute Loans to or give rise to any claim of or against any Borrower and shall not give rise to  any obligation on the part of the U.S. Borrower to pay interest to such Lender, it being agreed                                       -119-                                           





 






   that the reimbursement obligations in respect of Letters of Credit shall arise only at such times as  drawings are made thereunder, as provided in Section 2.06.        (b)  In  the  event  that  after  the  CAM Exchange Date  any  drawing  shall  be  made  in  respect  of  a  Letter  of  Credit,  the  Administrative  Agent  shall,  at  the  request  of  the  applicable  Issuing Bank withdraw from the Reserve Account of each Lender any amounts, up to the amount  of such Lender’s CAM Percentage of such drawing deposited in respect of such Letter of Credit  and remaining on deposit and deliver such amounts to such Issuing Bank in satisfaction of the  reimbursement obligations of the Lenders under Section 2.06(d) (but not of the U.S. Borrower  under Section 2.06(e)).  In the event that any Lender shall default on its obligation to pay over  any amount to the Administrative Agent as provided in this Section 10.02, the applicable Issuing  Bank shall have a claim against such Lender to the same extent as if such Lender had defaulted  on  its  obligations  under  Section 2.06(d),  but  shall have  no  claim  against  any  other  Lender  in  respect  of  such defaulted  amount,  notwithstanding the  exchange  of  interests in  the applicable  Borrower’s reimbursement obligations pursuant to Section 10.01.  Each other Lender shall have  a  claim  against  such  defaulting  Lender  for  any  damages  sustained  by  it  as  a  result  of  such  default,  including,  in  the event that  such  Letter  of Credit shall  expire  undrawn,  its  CAM  Percentage of the defaulted amount.        (c)  In  the  event  that  after  the  CAM  Exchange  Date  any  Letter  of Credit  shall  expire  undrawn, the Administrative Agent shall withdraw from the Reserve Account of each Lender the  amount  remaining  on  deposit  therein  in  respect of  such  Letter  of  Credit  and  distribute  such  amount to such Lender.        (d)  With the prior written approval of the Administrative Agent (not to be unreasonably  withheld), any Lender may withdraw the amount held in its Reserve Account in respect of the  undrawn  amount  of any  Letter  of  Credit.   Any  Lender  making  such  a  withdrawal  shall  be  unconditionally obligated, in the event there shall subsequently be a drawing under such Letter  of  Credit,  to pay over  to  the  Administrative  Agent,  for the  account  of  the  Issuing  Bank,  on  demand, its CAM Percentage of such drawing.        (e)  Pending the withdrawal by any Lender of any amounts from its Reserve Account as  contemplated by the above paragraphs, the Administrative Agent will, at the direction of such  Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of  inconvenience,  invest such  amounts  in  Permitted  Investments.   Each  Lender  that  has  not  withdrawn its amounts in its Reserve Account as provided in paragraph (d) above shall have the  right, at intervals reasonably specified by the Administrative Agent, to withdraw the earnings on  investments so made by the Administrative Agent with amounts in its Reserve Account and to  retain such earnings for its own account.                               [SIGNATURE PAGE FOLLOWS]                                        -120-                                           





 






       IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed  by their respective authorized officers as of the day and year first above written.                                        HERMAN MILLER, INC.                                       By;                                          Name: Kevin^f. Veltman                                          Title: Vice President - Investor Relations                                                  and Treasurer       [SIGNATURE PAGE TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (HERMAN MILLER)]  





 






 





 






 





 






 





 






 





 






 





 






 





 






                                       PNC BANK, NATIONAL ASSOCIATION, as a Lender                                                                                                                  By:                                                            Name: Zoila Baker                                         Title: Vice President                                                                                                  [SIGNATURE PAGE TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (HERMAN MILLER)]  





 






                                SCHEDULE 2.01                                                                           COMMITMENTS                       LENDER                                COMMITMENT  Wells Fargo Bank, National Association               $150,000,000  JPMorgan Chase Bank, N.A.                            $105,000,000  Bank of America, N.A.                                 $70,000,000  KeyBank National Association                          $60,000,000  The Huntington National Bank                          $45,000,000  HSBC Bank USA, N.A.                                   $35,000,000  PNC Bank National Association                         $35,000,000  Total                                                $500,000,000                                           





 






                              SCHEDULE 2.06                                                                  EXISTING LETTERS OF CREDIT                     (AS OF RESTATEMENT EFFECTIVE DATE)                  Beneficiary               Expiry               Amount  Travelers Indemnity Company              11/17/19       $                     110,000   Travelers Indemnity Company                4/7/20       $                  1,930,000  Old Republic Insurance Company             7/7/20       $                  3,750,891  ASB MRP 900 G Street                      4/24/20       $                        60,205  Lightning Propco III, LLC                 9/30/19       $                     250,000   State of Connecticut                      10/5/19       $                     367,500   Dugan Financing LLC C/O DUK               9/15/19       $                        61,028  Dacra Design 4141 LLC                     7/18/20       $                     120,000   Diamond Jim Realty                       10/28/19       $                     100,000   Big Greene LLC                            2/28/20       $                     326,193   M&B Building Owners LLC                   9/26/19       $                  1,600,000 Duke Realty-Ohio Warehouse                6/29/20       $                  1,153,150                                                          $                  9,828,968   





 






               SCHEDULE 3.06                                  DISCLOSED MATTERS  (AS OF THE RESTATEMENT EFFECTIVE DATE)                                               None.                     





 






                                SCHEDULE 3.16                                      INSURANCE                      (AS OF THE RESTATEMENT EFFECTIVE DATE)                                                 The deductible amount under certain insurance policies are maintained with Milsure Insurance,  Ltd., an Affiliate of the U.S. Borrower.                                                                                                                                





 






                                SCHEDULE 6.01                          EXISTING SUBSIDIARIES INDEBTEDNESS                      (AS OF THE RESTATEMENT EFFECTIVE DATE)                                           No indebtedness of subsidiaries for purposes of this schedule 6.01.                                           See the liens consisting of precautionary UCC filings relating to operating leases of subsidiaries  listed on schedule 6.02.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                





 






                                SCHEDULE 6.02                                   EXISTING LIENS                      (AS OF THE RESTATEMENT EFFECTIVE DATE)   Liens evidenced by the following UCC filings (each filing made with the office of the Michigan  Secretary of State):   Secured Party           Original File No. Original Collateral                                          Date  of                                          Filing   Raymond Leasing Corporation 2012100527-4 7/12/12 Specific leased equipment   Hurco Companies, Inc.   2015010104-5    1/23/15 Specific equipment  Precision Jig & Fixture, Inc. 2015056498-2 4/24/15 Specific fixtures  Classic Die, Inc.       2015070251-8    5/19/15 Filing  under  Michigan  Special Tools                                                  Lien Act  Precision Jig & Fixture, Inc. 2015102030-9 7/17/15 Specific fixtures   Commercial Tool & Die, Inc. 2015137753-2 10/2/15 Filing  under  Michigan  Special  Tools                                                  Lien Act  Specialty  Tooling  Systems, 2015140158-5 10/8/15 Specific equipment  Inc.  Commercial Tool & Die, Inc. 2015143774-4 10/15/15 Filing  under  Michigan  Special Tools                                                  Lien Act  Specialty  Tooling  Systems, 2015153507-1 11/5/15 Specific equipment  Inc.  Specialty  Tooling  Systems, 2015153508-3 11/5/15 Specific equipment  Inc.   Commercial Tool & Die, Inc. 2016089807-0 6/27/16 Filing  under  Michigan  Special  Tools                                                  Lien Act   C.G.  Automation  &  Fixture, 20161026000756- 10/26/16 Filing  under  Michigan  Special  Tools  Inc.                    2                       Lien Act  C.G.  Automation  &  Fixture, 20170111001171- 1/11/17 Filing  under  Michigan  Special  Tools  Inc.                    3                       Lien Act  Commercial Tool & Die, Inc. 20170203000172- 2/3/17 Filing  under  Michigan  Special  Tools                          5                       Lien Act  C.G.  Automation  &  Fixture, 20170420000445- 4/20/17 Filing  under  Michigan Special  Tools  Inc.                    3                       Lien Act  





 






Secured Party           Original File No. Original Collateral                                          Date  of                                          Filing  Commercial Tool & Die, Inc. 20170504000976- 5/4/17 Filing  under  Michigan  Special  Tools                          9                       Lien Act  M & K Truck Leasing, LLC 20170711000519- 7/11/17 Leased vehicles                          6  Commercial Tool & Die, Inc. 20171017000616- 10/17/17 Filing under  Michigan  Special  Tools                          6                       Lien Act   Paramount Tool & Die, Inc. 20171026000263- 10/26/17 Filing  under  Michigan  Special  Tools                          6                       Lien Act  Paramount Tool & Die, Inc. 20171026000296- 10/26/17 Filing  under  Michigan  Special  Tools                          4                       Lien Act  Stiles Machinery, Inc.  20171220000764- 12/20/17 Specific equipment                          4  Commercial Tool & Die, Inc. 20180509000601- 5/9/18 Filing  under  Michigan  Special Tools                          2                       Lien Act  Paramount Tool & Die, Inc. 20180518000139- 5/18/18 Filing  under  Michigan  Special  Tools                          8                       Lien Act  Paramount Tool & Die, Inc. 20180518000202- 5/18/18 Filing  under  Michigan  Special  Tools                          3                       Lien Act   Paramount Tool & Die, Inc. 20180601000491- 6/1/18 Filing  under  Michigan  Special  Tools                          4                       Lien Act  Paramount Tool & Die, Inc. 20180622000396- 6/22/18 Filing  under  Michigan  Special  Tools                          3                       Lien Act      C.G.  Automation  &  Fixture, 20180817000303- 8/17/18 Filing  under  Michigan  Special  Tools  Inc.                    9                       Lien Act   C.G.  Automation  &  Fixture, 20181113000743- 11/13/18 Filing  under  Michigan  Special  Tools  Inc.                    1                       Lien Act   Commercial Tool & Die, Inc. 20181212000272- 12/12/18 Filing  under  Michigan  Special  Tools                          8                       Lien Act  Commercial Tool & Die, Inc. 20190509000608- 5/9/19 Filing  under  Michigan  Special  Tools                          4                       Lien Act  C.G.  Automation  &  Fixture, 20190611000572- 6/11/19 Filing  under  Michigan  Special  Tools  Inc.                    4                       Lien Act  





 






                                SCHEDULE 6.08                               EXISTING RESTRICTIONS                      (AS OF THE RESTATEMENT EFFECTIVE DATE)                                           Existing restrictive agreements with limitations on liens include:          -$50,000,000 Series A Senior Notes due March 1, 2021, issued by the U.S. Borrower        (governed by Private Shelf Agreement dated as of December 14, 2010, as amended,        between the U.S. Borrower and the noteholders)                -ISDA Master Agreement dated August 5, 2016 between Wells Fargo Bank, N.A. and the        U.S. Borrower, including the Schedule thereto, as amended by First Amendment dated        August 29, 2016                 -ISDA Master Agreement dated November 30, 2016 between PNC Bank, N.A. and the        U.S. Borrower, including the Schedule to the Master Agreement                                                





 






                                                                                                                   EXHIBIT A                            ASSIGNMENT AND ASSUMPTION         This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Assignment Effective Date set forth below and is entered into by and between [INSERT NAME OF  ASSIGNOR] (the “Assignor”)  and [INSERT  NAME OF ASSIGNEE] (the “Assignee”).   Capitalized  terms used but not defined herein shall have the meanings given to them in the Credit Agreement  identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby  acknowledged  by  the  Assignee.   The  Standard  Terms  and  Conditions  set  forth  in  Annex  1  attached hereto are hereby agreed to and incorporated herein by reference and made a part of this  Assignment and Assumption as if set forth herein in full.         For  an  agreed  consideration,  the  Assignor  hereby  irrevocably  sells  and  assigns  to  the  Assignee,  and  the  Assignee  hereby  irrevocably  purchases  and  assumes  from  the  Assignor,  subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,  as of the Assignment Effective Date inserted by the Administrative Agent as contemplated below  (i)  all  of  the  Assignor’s  rights  and  obligations  in  its  capacity  as  a  Lender  under  the  Credit  Agreement  and  any  other  documents  or  instruments  delivered  pursuant thereto  to  the  extent  related to the amount and percentage interest identified below of all of such outstanding rights  and  obligations  of  the  Assignor  under  the  respective  facilities  identified  below  (including  any  letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent  permitted to be assigned under applicable law, all claims, suits, causes of action and any other  right  of  the Assignor  (in  its  capacity  as  a  Lender)  against  any  Person,  whether  known  or  unknown,  arising  under  or  in  connection  with  the  Credit  Agreement,  any  other  documents  or  instruments delivered pursuant thereto or the loan transactions governed thereby or in any way  based on or related to any of the foregoing, including contract claims, tort claims, malpractice  claims, statutory  claims  and  all  other  claims  at  law  or  in  equity  related  to  the  rights  and  obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and  assigned  pursuant  to  clauses  (i) and  (ii)  above  being  referred  to  herein  collectively  as  the  “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except  as expressly provided in this Assignment and Assumption, without representation or warranty by  the Assignor.   1.    Assignor:            ______________________________   2.    Assignee:            ______________________________                              [and is an Affiliate/Approved Fund of _____________]   3.    U.S. Borrower:       Herman Miller, Inc., a Michigan corporation   4.    Administrative Agent: Wells Fargo Bank, National Association, as the administrative                             agent under the Credit Agreement   5.    Credit Agreement:    The Fifth Amended and Restated Credit Agreement dated as of                             August 28, 2019,  among  Herman  Miller,  Inc.,  the  Subsidiary   Exhibits to 5th A&R CA 4837-2366-3008 v3.doc  4148425  





 






                           Borrowers  parties  thereto,  the  Lenders  parties  thereto,  Wells                             Fargo  Bank,  National  Association,  as  Administrative  Agent,                             JPMorgan Chase Bank, N.A., as Syndication Agent, and Wells                             Fargo  Securities,  LLC  and JPMorgan  Chase  Bank,  N.A.,  as                             Joint Lead Arrangers and Joint Bookrunners.   6.    Assigned Interest:       Facility Assigned  Aggregate Amount of Amount of            Percentage Assigned                     Commitment/Loans    Commitment/Loans     of Commitment/Loan                     for all Lenders     Assigned                     $                   $                    %                     $                   $                    %                     $                   $                    %           Assignment  Effective  Date:   _____________  ___,  20___ [to  be  inserted  by  administrative agent and which shall be the assignment effective date of recordation of transfer  in the register therefor.]         The terms set forth in this Assignment and Assumption are hereby agreed to:                                           ASSIGNOR                                                                                  [NAME OF ASSIGNOR]                                          By: ____________________________________                                         Name: _________________________________                                         Title: __________________________________                                           ASSIGNEE                                                                                  [NAME OF ASSIGNEE]                                          By: ____________________________________                                         Name: _________________________________                                         Title: __________________________________                                                                                  - 2 -  





 






Consented to and Accepted:    WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent   By:_________________________________     Name: ___________________________     Title: ____________________________    Consented to:    [NAME OF RELEVANT PARTY]   By:__________________________________     Name: ____________________________     Title: _____________________________                                         - 3 -  





 






                                      ANNEX 1                        STANDARD TERMS AND CONDITIONS FOR                           ASSIGNMENT AND ASSUMPTION   SECTION 1.    REPRESENTATIONS AND WARRANTIES.       Section 1.1. Assignor.  The Assignor (a) represents and warrants that (i) it is the legal  and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any  lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all  action necessary, to execute and deliver this Assignment and Assumption and to consummate the  transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no  responsibility  with  respect  to  (i)  any  statements, warranties  or  representations  made  in  or  in  connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,  validity,  enforceability,  genuineness,  sufficiency  or  value  of  the  Loan  Documents  or  any  collateral thereunder, (iii) the financial condition of the U.S. Borrower, any of its Subsidiaries or  Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance  or observance by the U.S. Borrower, any of its Subsidiaries or Affiliates or any other Person of  any of their respective obligations under any Loan Document.        Section 1.2 Assignee.  The Assignee (a) represents and warrants that (i) it has full power  and  authority,  and  has  taken  all  action  necessary,  to  execute  and  deliver  this  Assignment and  Assumption and to consummate the transactions contemplated hereby and to become a Lender  under  the  Credit  Agreement,  (ii)  it  satisfies  the  requirements,  if  any,  specified  in  the  Credit  Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and  become a Lender, (iii) from and after the Assignment Effective Date, it shall be bound by the  provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned  Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to  decisions to acquire assets of the type represented by the Assigned Interest and either it, or the  Person  exercising  discretion  in  making  its  decision  to  acquire  the  Assigned  Interest,  is  experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,  together with copies of the most recent financial statements delivered pursuant to Section 5.01  thereof, as applicable, and such other documents and information as it has deemed appropriate to  make its own credit analysis and decision to enter into this Assignment and Assumption and to  purchase  the  Assigned  Interest  on  the  basis  of  which  it  has  made  such  analysis  and  decision  independently and without reliance on the Administrative Agent or any other Lender, and (vi) if  it  is  a  Foreign  Lender,  attached  to  the  Assignment  and  Assumption  is  any  documentation  required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and  executed by the Assignee; (b) agrees that (i) it will, independently and without reliance on the  Administrative Agent,  the  Assignor  or  any  other  Lender,  and  based  on  such  documents  and  information as it shall deem appropriate at the time, continue to make its own credit decisions in  taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with  their terms all of the obligations which by the terms of the Loan Documents are required to be  performed by it as a Lender; and (c) appoints and authorizes the Administrative Agent to take  such  action  as  the  Administrative  Agent  on  its  behalf  and  to  exercise  such  powers  under  the     





 






   Credit Agreement and the other Loan Documents as the Administrative Agent is authorized to  exercise by the terms thereof, together with such powers as are reasonably incidental thereto, all  in accordance with Article VIII of the Credit Agreement.   SECTION 2.    PAYMENTS.           From and after the Assignment Effective Date, the Administrative Agent shall make all  payments in respect of the Assigned Interest (including payments of principal, interest, fees and  other amounts) to the Assignor for amounts which have accrued to but excluding the Assignment  Effective  Date  and  to  the  Assignee  for  amounts  which  have  accrued  from  and  after  the  Assignment Effective Date.     SECTION 3.    GENERAL PROVISIONS.           This Assignment and Assumption shall be binding upon, and inure to the benefit of, the  parties  hereto  and  their  respective  successors  and  assigns.   This  Assignment  and  Assumption  may be executed in any number of counterparts, which together shall constitute one instrument.   Delivery of an executed counterpart of a signature page of this Assignment and Assumption by  telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and  Assumption.  This  Assignment  and  Assumption  shall  be  governed  by,  and  construed  in  accordance with, the law of the State of New York.                                         - 2 -  





 






                                     EXHIBIT B                          SUBSIDIARY BORROWER AGREEMENT         This SUBSIDIARY  BORROWER   AGREEMENT   (this “Agreement”),  dated  as  of  _____________, 20__, is entered into by _________________, a ________________ (the “New  Subsidiary  Borrower”),  Herman  Miller,  Inc.  (the “U.S.  Borrower”)  and  Wells  Fargo  Bank,  National  Association,  as  Administrative  Agent,  pursuant  to  the Fifth Amended  and  Restated  Credit Agreement (as amended or modified from time to time, the “Credit Agreement”), dated as  of August 28, 2019,  among  the  U.S.  Borrower,  the  Subsidiary  Borrowers  party  thereto,  the  Lenders  party  thereto,  Wells Fargo  Bank,  National  Association,  as  Administrative  Agent,  JPMorgan Chase  Bank,  N.A.,  as  Syndication  Agent,  and  Wells  Fargo  Securities,  LLC  and  JPMorgan Chase Bank, N.A., as Joint Lead Arrangers and Joint Bookrunners.                                    WITNESSETH:         WHEREAS, the parties to this Agreement wish to designate the New Subsidiary Borrower  as a Subsidiary Borrower under the Credit Agreement in the manner hereinafter set forth; and         WHEREAS, this Agreement is entered into pursuant to the Credit Agreement;         NOW, THEREFORE, in  consideration  of  the  premises,  the  parties  hereto  hereby  agree  as  follows:         1.  The  New  Subsidiary  Borrower  hereby  acknowledges  that  it  has  received  and  reviewed a copy of the Credit Agreement and the other Loan Documents and unconditionally  agrees  to:  (a)  join  the  Credit  Agreement  and  the  other  Loan  Documents  as  a  Subsidiary  Borrower;  (b)  be  bound  by,  and  hereby  ratifies  and  confirms,  all  covenants,  agreements,  consents, submissions,  appointments,  acknowledgments  and  other  terms  and  provisions  attributable to a Subsidiary Borrower in the Credit Agreement and the other Loan Documents;  and (c) perform all obligations required of it as a Subsidiary Borrower by the Credit Agreement  and the other Loan Documents.         2.  The New Subsidiary Borrower hereby represents and warrants to the Agents and the  Lenders that:               (a)   The New Subsidiary Borrower is a Wholly-Owned Subsidiary of the U.S.        Borrower and satisfies all conditions to becoming a Subsidiary Borrower under the Credit        Agreement.               (b)   The representations and warranties with respect to it contained in, or made        or deemed made by it in, the Credit Agreement and any other Loan Document are true        and correct on the date hereof.      





 






               (c)   The execution, delivery and performance by the New Subsidiary Borrower        of this Agreement are within its [corporate] powers and have been duly authorized by all        necessary [corporate,  stockholder] and  other  action.   This  Agreement  has  been  duly        executed and delivered by the New Subsidiary Borrower and constitutes a legal, valid and        binding obligation of the New Subsidiary Borrower, enforceable in accordance with its        terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other        laws  affecting  creditors’  rights  generally  and  subject  to  general  principles  of  equity,        regardless of whether considered in a proceeding in equity or at law.               (d)   The execution, delivery and performance by the New Subsidiary Borrower        of  this  Agreement  (i)  do  not  require  any  consent  or  approval  of,  registration  or  filing        with,  or  any  other  action  by,  any  Governmental  Authority,  except  such  as  have  been        obtained or made and are in full force and effect, (ii) will not violate any applicable law        or  regulation  or  the  charter,  by-laws  or  other  organizational  documents  of  the  New        Subsidiary  Borrower  or  any  of  its  Subsidiaries  or  any  order  of  any  Governmental        Authority, (iii) will not violate or result in a default under any indenture, agreement or        other instrument binding upon the New Subsidiary Borrower or any of its Subsidiaries or        its assets, or give rise to a right thereunder to require any payment to be made by the New        Subsidiary Borrower or any of its Subsidiaries, and (iv) will not result in the creation or        imposition  of  any  Lien  on  any  asset  of  the  New  Subsidiary  Borrower  or  any  of  its        Subsidiaries.               (e)   The  address  and  jurisdiction  of  incorporation  of  the  New  Subsidiary        Borrower is set forth in Schedule A to this Agreement.         3.  The  U.S.  Borrower  represents  and  warrants  to  the  Agents  and  the  Lenders  that  (a) no Default has occurred and is continuing under the Credit Agreement as of the date hereof;  and (b) the representations and warranties made by the Borrowers and contained in Article III of  the Credit Agreement are true and correct on and as of the date hereof with the same effect as if  made on and as of such date (other than those representations and warranties that by their terms  speak as of a particular date, which representations and warranties were true and correct as of  such date).         4.  The  U.S.  Borrower  agrees  that the  U.S.  Borrower Guaranty  shall  remain in  full  force and effect after giving effect to this Agreement, including without limitation after including  the  New  Subsidiary  Borrower  as  a  Subsidiary  Borrower  under  the  Credit  Agreement  and  the  execution and delivery of any Ancillary Facility Document.         5.  The  New  Subsidiary  Borrower  shall  be  entitled [to  obtain Revolving  Loans]  [request the creation of Ancillary Facilities under Section 2.22 of the Credit Agreement].   [Attached hereto as Schedule B is the final Ancillary Facility Document.]         6.  The New Subsidiary Borrower shall not become a Subsidiary Borrower under the  Credit  Agreement  until  (a)  this  Agreement  is  signed  by  all  parties  hereto  and  by  the  Administrative Agent and where indicated below and (b) the Administrative Agent shall have  received such documents (including a legal opinion substantially in the form of Exhibit G to the                                        - 2 -  





 






   Credit Agreement if the New Subsidiary Borrower is a Domestic Subsidiary, or a legal opinion  in form and substance acceptable to the Administrative Agent if the New Subsidiary Borrower is  a Foreign Subsidiary) and certificates as the Administrative Agent or its counsel may reasonably  request relating to the formation, existence and good standing of the New Subsidiary Borrower,  the authorization of Borrowings as they relate to the New Subsidiary Borrower and any other  legal  matters relating  to  the  New  Subsidiary  Borrower  and  this  Agreement,  all  in  form  and  substance reasonably satisfactory to the Administrative Agent and its counsel.         7.  The  New  Subsidiary  Borrower  acknowledges  and  agrees  to  the  joint  and  several  obligations and the waivers set forth in Section 9.16 of the Credit Agreement.         8.  Capitalized  terms  used  but  not  defined  herein  shall  have  the  meanings  ascribed  thereto in the Credit Agreement.  This Agreement shall be binding upon, and inure to the benefit  of, the parties hereto and their respective successors and assigns.  Except as expressly amended  hereby,  each  Borrower  agrees  that  the  Credit  Agreement  and  the  other  Loan  Documents  are  ratified  and  confirmed  and  shall  remain  in  full  force  and  effect,  and  that  it  has  no  set-off,  counterclaim, or defense with respect to any of the foregoing.  This Agreement may be executed  in any number of counterparts, which together shall constitute one instrument.  Delivery of an  executed  counterpart  of  a  signature  page  of  this  Agreement  by  telecopy  shall  be  effective  as  delivery  of  a  manually  executed  counterpart  of  this  Agreement.   This  Agreement  shall  be  governed by, and construed in accordance with, the law of the State of New York.                             [SIGNATURE PAGES TO FOLLOW]                                         - 3 -  





 






          IN WITNESS WHEREOF,  each of  the  undersigned  has  caused  this  Agreement  to  be  duly  executed and delivered as of the day and year set forth above.                                                                                  [NAME OF SUBSIDIARY BORROWER],                                          as a Subsidiary Borrower                                                                                                                           By: ____________________________________                                           Name: _______________________________                                           Title: ________________________________                                                                                                                           HERMAN MILLER, INC.                                                                                                                           By: ____________________________________                                           Name: _______________________________                                           Title: ________________________________                                                                                                                             [EXISTING SUBSIDIARY BORROWERS]                                                                                                                           By: ____________________________________                                           Name: _______________________________                                           Title: ________________________________                                                                                                                           Acknowledged and Consented to:                                                                                  WELLS FARGO BANK, NATIONAL ASSOCIATION,                                          as Administrative Agent                                                                                                                           By: ____________________________________                                           Name: _______________________________                                           Title: ________________________________                                         - 4 -  





 






                                    SCHEDULE A                            ADMINISTRATIVE INFORMATION    Jurisdiction of Organization:    Address:                                         - 5 -  





 






                                           SCHEDULE B                    FINAL ANCILLARY FACILITY DOCUMENT – IF APPLICABLE                                - 6 -  





 






                                     EXHIBIT C                         SUBSIDIARY BORROWER TERMINATION         This SUBSIDIARY BORROWER    TERMINATION  (this “Agreement”),  dated  as  of  _____________,  20__,  is  entered  into  by  _________________,  a  ________________  (the  “Former Subsidiary Borrower”), Herman Miller, Inc. (the “U.S. Borrower”) and Wells Fargo  Bank,  National  Association,  as  Administrative  Agent,  pursuant  to  the Fifth Amended  and  Restated  Credit  Agreement  (as  amended  or  modified  from  time  to  time,  the “Credit  Agreement”), dated as of August 28, 2019, among the U.S. Borrower, the Subsidiary Borrowers  party  thereto,  the  Lenders  party  thereto,  Wells  Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan Chase  Bank,  N.A.,  as  Syndication  Agent,  and  Wells  Fargo  Securities,  LLC  and JPMorgan  Chase  Bank,  N.A.,  as  Joint  Lead  Arrangers  and  Joint  Bookrunners.                                    WITNESSETH:         WHEREAS, the parties to this Agreement wish to remove the Former Subsidiary Borrower  as a Subsidiary Borrower under the Credit Agreement in the manner hereinafter set forth; and         WHEREAS, this Agreement is entered into pursuant to the Credit Agreement;         NOW, THEREFORE,  in  consideration  of  the  premises,  the  parties  hereto  hereby  agree  as  follows:         1.  The  Former  Subsidiary  Borrower’s  ability  to  request  or  obtain  Loans  under  the  Credit Agreement is hereby irrevocably terminated.  The Former Subsidiary Borrower shall no  longer be considered a Subsidiary Borrower for purposes of requesting or obtaining Loans and,  upon  payment  in  full  of  all  Obligations  under  the  Credit  Agreement  and  the  other  Loan  Documents owing by the Former Subsidiary Borrower, the Former Subsidiary Borrower shall no  longer be a party to the Credit Agreement.         2.  The  Former  Subsidiary  Borrower  and  the  U.S.  Borrower  agree,  jointly  and  severally, that all Obligations under the Credit Agreement and the other Loan Documents owing  by the Former Subsidiary Borrower shall be paid in full on the date hereof.         3.  Capitalized  terms  used  but  not  defined  herein  shall  have  the  meanings  ascribed  thereto in the Credit Agreement.  This Agreement shall be binding upon, and inure to the benefit  of,  the  parties  hereto  and  their  respective  successors  and  assigns.   This  Agreement  may  be  executed  in  any  number  of  counterparts,  which  together  shall  constitute  one  instrument.   Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be  effective  as  delivery  of  a  manually  executed  counterpart of  this  Agreement.   This  Agreement  shall be governed by, and construed in accordance with, the law of the State of New York.      





 






         IN WITNESS WHEREOF,  each  of  the  undersigned  has  caused  this  Agreement  to  be  duly  executed and delivered as of the day and year set forth above.                                                                                  [NAME OF FORMER SUBSIDIARY BORROWER],                                          as a Subsidiary Borrower                                                                                                                           By: ____________________________________                                           Name: _______________________________                                           Title: ________________________________                                                                                                                           HERMAN MILLER, INC.                                                                                                                           By: ____________________________________                                            Name: ______________________________                                            Title: _______________________________                                                                                                                           Acknowledged and Consented to:                                                                                  WELLS FARGO BANK, NATIONAL ASSOCIATION,                                          as Administrative Agent                                                                                                                           By: ____________________________________                                         Name: _________________________________                                          Title: ________________________________                                         - 2 -  





 






                                    EXHIBIT D-1                                                                   U.S. TAX COMPLIANCE CERTIFICATE        (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)         Reference is made to the Fifth Amended and Restated Credit Agreement dated as of August 28,  2019 (as  extended,  renewed,  amended  or  restated  from  time  to  time,  the “Credit  Agreement”)  among  Herman Miller, Inc., the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Wells Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication  Agent, and Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers and  Joint  Bookrunners.   Capitalized  terms  used  herein  and  not  defined  herein  shall  have  the  meanings  assigned thereto in the Credit Agreement.         Pursuant  to  the provisions  of  Section 2.17  of  the  Credit  Agreement,  the  undersigned  hereby  certifies  that (a) it  is  the  sole  record  and  beneficial  owner  of  the  Loan(s)  (as  well  as  any  Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent (10%) shareholder of the U.S.  Borrower within the meaning of Section 881(c)(3)(B) of the Code and (d) it is not a controlled foreign  corporation related to the U.S. Borrower as described in Section 881(c)(3)(C) of the Code.         The undersigned has furnished the Administrative Agent and the U.S. Borrower with a certificate  of  its  non-U.S.  Person  status  on  IRS  Form  W-8BEN.   By  executing  this  certificate,  the  undersigned  agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so  inform the U.S. Borrower and the Administrative Agent and (b) the undersigned shall have at all times  furnished  the U.S. Borrower  and  the  Administrative  Agent  with  a  properly  completed  and  currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two (2) calendar years preceding such payments.                                          [NAME OF LENDER]                                           By: _______________________________________                                            Name: _________________________________                                            Title: __________________________________                                                                                  Date: ___________________________________, 20[_]               





 






                                    EXHIBIT D-2                                                                   U.S. TAX COMPLIANCE CERTIFICATE          (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)         Reference  is  made  to  the Fifth Amended  and  Restated  Credit  Agreement  dated  as  of August  28, 2019 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among  Herman Miller, Inc., the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Wells Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication  Agent, and Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers and  Joint  Bookrunners.   Capitalized  terms  used  herein  and  not  defined  herein  shall  have  the  meanings  assigned thereto in the Credit Agreement.         Pursuant  to  the  provisions  of  Section 2.17  of  the  Credit  Agreement, the  undersigned  hereby  certifies  that  (a) it  is  the  sole  record  owner  of  the  Loan(s)  (as  well  as any  Note(s)  evidencing  such  Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are  the  sole  beneficial  owners  of  such  Loan(s)  (as  well  as  any  Note(s)  evidencing  such  Loan(s)),  (c) with  respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither  the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of Section  881(c)(3)(A)  of  the  Code,  (d) none  of  its  direct  or  indirect  partners/members  is  a  ten  percent  (10%)  shareholder of the U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code and (e) none of  its direct or indirect partners/members is a controlled foreign corporation related to the U.S. Borrower as  described in Section 881(c)(3)(C) of the Code.         The undersigned has furnished the Administrative Agent and the U.S. Borrower with IRS Form  W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming  the portfolio interest exemption:  (a) an IRS Form W-8BEN or (b) an IRS Form W-8IMY accompanied  by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the  portfolio  interest  exemption.   By  executing  this  certificate,  the  undersigned  agrees  that  (i) if  the  information  provided  on this  certificate  changes,  the  undersigned  shall  promptly  so  inform  the U.S.  Borrower and the Administrative Agent and (ii) the undersigned shall have at all times furnished the U.S.  Borrower and the Administrative Agent with a properly completed and currently effective certificate in  either the calendar year in which each payment is to be made to the undersigned, or in either of the two  (2) calendar years preceding such payments.                                         [NAME OF LENDER]                                           By: _______________________________________                                            Name: _________________________________                                            Title: __________________________________                                                                                  Date: ___________________________________, 20[_]     





 






                                    EXHIBIT D-3                                                                   U.S. TAX COMPLIANCE CERTIFICATE       (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)         Reference is made to the Fifth Amended and Restated Credit Agreement dated as of August 28,  2019 (as  extended,  renewed,  amended  or  restated  from  time  to  time,  the “Credit  Agreement”)  among  Herman Miller, Inc., the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Wells Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication  Agent, and Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers and  Joint  Bookrunners.   Capitalized  terms  used  herein  and  not  defined  herein  shall  have  the  meanings  assigned thereto in the Credit Agreement.         Pursuant  to  the  provisions  of Section 2.17  of  the  Credit  Agreement, the  undersigned  hereby  certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is  providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (c) it  is  not  a  ten  percent  (10%)  shareholder  of  the U.S. Borrower  within  the  meaning  of  Section  881(c)(3)(B) of the Code and (d) it is not a controlled foreign corporation related to the U.S. Borrower as  described in Section 881(c)(3)(C) of the Code.         The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person  status  on  IRS  Form  W-8BEN.   By  executing  this  certificate,  the  undersigned  agrees  that  (a) if  the  information provided on this certificate changes, the undersigned shall promptly so inform such Lender in  writing and (b) the undersigned shall have at all times furnished such Lender with a properly completed  and currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two (2) calendar years preceding such payments.                                          [NAME OF PARTICIPANT]                                           By: _______________________________________                                            Name: _________________________________                                            Title: __________________________________                                                                                  Date: ___________________________________, 20[_]     





 






                                    EXHIBIT D-4                                                                   U.S. TAX COMPLIANCE CERTIFICATE        (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)         Reference is made to the Fifth Amended and Restated Credit Agreement dated as of August 28,  2019 (as  extended,  renewed,  amended  or  restated  from  time  to  time,  the “Credit  Agreement”)  among  Herman Miller, Inc., the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Wells Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication  Agent, and Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers and  Joint  Bookrunners.   Capitalized  terms  used  herein  and  not  defined  herein  shall  have  the  meanings  assigned thereto in the Credit Agreement.         Pursuant  to  the  provisions  of  Section 2.17  of  the  Credit Agreement, the  undersigned  hereby  certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is  providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (c) it is  not  a  ten  percent  (10%)  shareholder  of  the U.S. Borrower  within  the  meaning  of  Section  881(c)(3)(B) of the Code and (d) it is not a controlled foreign corporation related to the U.S. Borrower as  described in Section 881(c)(3)(C) of the Code.         The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person  status  on  IRS  Form  W-8BEN.   By  executing  this  certificate,  the  undersigned  agrees  that  (a) if  the  information provided on this certificate changes, the undersigned shall promptly so inform such Lender in  writing and (b) the undersigned shall have at all times furnished such Lender with a properly completed  and currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two (2) calendar years preceding such payments.                                          [NAME OF PARTICIPANT]                                           By: _______________________________________                                            Name: _________________________________                                            Title: __________________________________                                                                                  Date: ___________________________________, 20[_]      





 






                                     EXHIBIT E                             U.S. BORROWER GUARANTY                                      PARTIES         This GUARANTY, dated as of [________], 20__ (this “Guaranty”), is made by Herman  Miller, Inc., a Michigan corporation (together with its successors and assigns, the “Guarantor”),  in favor of each of the Agents and the Lenders as defined below.                                     RECITALS        A.   The Guarantor (as a Borrower), the Subsidiary Borrowers party thereto from time to  time (all present and future Subsidiary Borrowers party to the Credit Agreement from time to  time defined as the “Subsidiary Borrowers”), the lenders from time to time parties thereto, Wells  Fargo  Bank,  National  Association,  as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication Agent, and Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., as Joint  Lead  Arrangers  and  Joint  Bookrunners,  have  executed  a Fifth Amended  and  Restated  Credit  Agreement dated as of August 28, 2019 (as amended or modified from time to time, and together  with  any  agreement  executed  in  replacement  therefor  or  otherwise  refinancing  such  credit  agreement, the “Credit Agreement”).        B.   The Guarantor  is  the  parent  corporation  of  the  Subsidiary  Borrowers,  and  the  Subsidiary Borrowers and the Guarantor are engaged in related businesses, and the Guarantor  has  derived  or  will  derive  substantial  direct  and  indirect  benefit from  the  making  of  the  extensions of credit by the Agents and the Lenders.        C.   The  obligation of  the  Lenders  to  make  or  continue  to  make  certain  extensions  of  credit under the Credit Agreement are conditioned upon, among other things, the execution and  delivery  by  the  Guarantor  of  this  Guaranty,  and  the  extensions  of  credit  to  the  Subsidiary  Borrowers under the Credit Agreement are and will be made in reliance upon the issuance of this  Guaranty.                                    AGREEMENT         In consideration of the premises and to induce the Lenders to make loans, extend credit or  make  other  financial  accommodations  and  the  Lenders  and the  Agents  to  execute  the  Credit  Agreement, and to continue to keep such credit and other financial accommodations available to  the Subsidiary Borrowers, the Guarantor hereby agrees with and for the benefit of the Agents and  the Lenders as follows:   SECTION 1.    DEFINED TERMS.           As used in this Guaranty, terms defined in the first paragraph of this Guaranty and in the  recital  paragraphs  are  used  herein  as  defined  therein,  and  the  following  terms  shall  have  the  following meanings:     





 






         “Agents” means all Agents as defined in the Credit Agreement and any Affiliate of any  Agent performing any of the duties or obligations of an Agent under the Credit Agreement.         “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).         “Excluded Swap Obligation” means, with respect to any Borrower, any Swap Obligation  if, and to the extent that, all or a portion of the liability of such Borrower for or the guarantee of  such  Borrower  of,  or  the  grant  by  such  Borrower  of  a  security  interest  to  secure,  such  Swap  Obligation  (or  any  liability  or  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 Borrower’s failure  for  any  reason  to  constitute  an  “eligible contract  participant”  as  defined  in  the  Commodity  Exchange Act and the regulations thereunder at the time the liability for or the guarantee of such  Borrower  or  the  grant  of  such  security  interest  becomes  effective  with  respect  to  such  Swap  Obligation  (such  determination  being  made  after  giving  effect  to  any  applicable  keepwell,  support  or  other  agreement  for  the  benefit  of  the  applicable  Credit  Party,  including  under  Section 21 of this Guaranty).  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 for the  reasons identified in the immediately preceding sentence of this definition.          “Guaranteed Obligations” means all indebtedness, obligations and liabilities of any kind  of  any  and  all  Subsidiary  Borrowers  to  any  of  the  Lenders  or  Agents  in  connection  with  or  pursuant to the Transaction Documents, or to any Lender or Affiliate thereof in connection with  or pursuant to any Swap Agreement with any Lender or Affiliate thereof (other than an Excluded  Swap Obligation), including without limitation, all principal, interest (further including without  limitation  any  interest  or  other  amount  incurred  or  accrued  during  the  pendency  of  any  bankruptcy,  insolvency,  receivership  or  other  similar  proceeding,  whether  or  not  allowed  or  allowable in such proceeding), reimbursement obligations, indemnity obligations, charges, fees  and costs and expenses, including without limitation reasonable fees and expenses of counsel, in  each case whether now existing or hereafter arising, direct or indirect, absolute or contingent,  joint and/or several, secured or unsecured, arising by operation of law or otherwise.         “Lenders” means (a) all Lenders as defined in the Credit Agreement, (b) any Lender in  its capacity as the Swingline Lender or an Issuing Bank under the Credit Agreement, and (c) any  Lender and any Affiliate thereof in connection with any Swap Agreement with any Subsidiary  Borrower.         “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Borrower  that  has  total  assets  exceeding  $10,000,000  at  the  time  the relevant  guarantee  or  grant  of  the  relevant security interest becomes effective with respect to such Swap Obligation or such other  Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or  any regulations promulgated thereunder and can cause another Person to qualify as an “eligible  contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of  the Commodity Exchange Act.                                         - 2 -  





 






         “Swap  Obligation” means,  with  respect  to  the  Guarantor,  any  obligation  to  pay  or  perform  under  any  agreement,  contract  or  transaction that  constitutes  a  “swap”  within  the  meaning of section 1a(47) of the Commodity Exchange Act.         “Transaction Documents” means the Credit Agreement, all other Loan Documents and  any Swap Agreement among any Lender and any Affiliate thereof and any Subsidiary Borrower,  and all other agreements and instruments among the Guarantor, the Subsidiary Borrowers, the  Agents  and  the  Lenders,  or  any  of  them,  executed  in  connection  therewith,  whether  now  or  hereafter  executed,  and  any  supplements  or  modifications  thereof and  any  agreements  or  instruments issued in exchange or replacement therefor.         All other capitalized terms used but not defined herein shall have the meanings ascribed  thereto in the Credit Agreement.   SECTION 2.    GUARANTEE.        (a)  The  Guarantor  hereby  guarantees  to  the  Lenders  and  the  Agents,  irrevocably,  absolutely  and  unconditionally,  as  primary  obligor  and  not  as  surety  only,  the  prompt  and  complete payment of the Guaranteed Obligations on the date due (whether at stated maturity, by  acceleration or otherwise).  Upon failure by any Subsidiary Borrower to pay punctually any such  amount, the Guarantor agrees that it shall forthwith on demand pay to the Administrative Agent  for the benefit of the Agents and the Lenders, the amount not so paid at the place and in the  manner specified in the relevant Transaction Document, as the case may be.  This Guaranty is a  guaranty of payment and not of collection.  The Guarantor waives any right to require any Agent  or Lender to sue any Subsidiary Borrowers, any other guarantor, or any other person obligated  for all or any part of the Guaranteed Obligations, or otherwise to enforce its payment against any  collateral securing all or any part of the Guaranteed Obligations.        (b)  The  Guarantor  agrees  to  make  prompt  payment,  on  demand,  of  any  and  all  reasonable costs and expenses incurred by any Agent or Lender in connection with enforcing the  obligations  of  the  Guarantor  hereunder,  including  without  limitation  the  reasonable  fees  and  disbursements of counsel.        (c)  All payments received by the Administrative Agent hereunder shall be applied by  the Administrative Agent to payment of the Guaranteed Obligations in the following order unless  a court of competent jurisdiction shall otherwise direct:                (i)  FIRST, to payment of all costs and expenses of the Administrative Agent        incurred in connection with the collection and enforcement of the Guaranteed Obligations        or  of  any  security  interest  granted  to  the  Administrative  Agent  in  connection with  any        collateral securing the Guaranteed Obligations;               (ii)  SECOND,  to  payment  of  that  portion  of  the  Guaranteed  Obligations        constituting  accrued  and  unpaid  interest  and  fees,  pro  rata  among  the  Agents  and  the        Lenders  in  accordance  with  the  amount  of  such  accrued  and  unpaid  interest  and  fees        owing to each of them;                                        - 3 -  





 






               (iii) THIRD, to payment of the principal of the Guaranteed Obligations and the        net  early  termination  payments  and  any  other  obligations  under  any  Swap  Agreement        then due and unpaid from any of the Subsidiary Borrowers to any of the Lenders, pro rata        among the Lenders in accordance with the amount of such principal and such net early        termination payments and other such obligations then due and unpaid owing to each of        them; and               (iv)  FOURTH,  to  payment  of  any  Guaranteed  Obligations  (other  than  those        listed above) pro rata among those parties to whom such Guaranteed Obligations are due        in accordance with the amounts owing to each of them.   SECTION 3.    CONSENTS TO RENEWALS, MODIFICATIONS AND OTHER ACTIONS AND EVENTS.           This Guaranty and all of the obligations of the Guarantor hereunder shall remain in full  force and effect without regard to and shall not be released, affected or impaired by:  (a) any  amendment, assignment, transfer, modification of or addition or supplement to the Guaranteed  Obligations  or  any  Transaction  Document;  (b)  any  extension,  indulgence,  increase  in  the  Guaranteed  Obligations  or  other  action  or  inaction  in  respect  of  any  of  the  Transaction  Documents  or  otherwise  with  respect  to  the  Guaranteed  Obligations,  or  any  acceptance  of  security  for,  or other  guaranties  of,  any  of  the  Guaranteed  Obligations  or  Transaction  Documents, or any surrender, release, exchange, impairment or alteration of any such security or  guaranties  including  without  limitation  the  failing  to  perfect  a  security interest  in  any such  security or abstaining from taking advantage of or realizing upon any other guaranties or upon  any security interest in any such security; (c) any default by any Subsidiary Borrower under, or  any lack of due execution, invalidity or unenforceability of, or any irregularity or other defect in,  any of the Transaction Documents; (d) any waiver by any Lender or Agent or any other person  of  any  required  performance  or  otherwise  of  any  condition  precedent  or  waiver  of  any  requirement imposed by any of the Transaction Documents, any other guaranties or otherwise  with  respect  to  the  Guaranteed  Obligations;  (e)  any  exercise  or  non-exercise  of  any  right,  remedy,  power  or  privilege  in  respect  of  this  Guaranty,  any  other  guaranty  or  any  of  the  Transaction  Documents;  (f)  any  sale,  lease,  transfer  or  other  disposition  of  the  assets  of  any  Subsidiary Borrower or any consolidation or merger of any Subsidiary Borrower with or into any  other person, corporation, or entity, or any transfer or other disposition of any shares of capital  stock  of  any  Subsidiary  Borrower;  (g)  any  bankruptcy,  insolvency,  reorganization  or similar  proceedings  involving  or  affecting  any  Subsidiary  Borrower  or  any  other  guarantor  of the  Guaranteed Obligations; (h) the release or discharge of any Subsidiary Borrower or any other  guarantor  from  the  performance  or  observance  of  any  agreement,  covenant,  term  or  condition  under any of the Guaranteed Obligations or contained in any of the Transaction Documents, by  operation of law or otherwise; (i) any law or regulation of any jurisdiction or any other event  affecting  any  term  of  the  Guaranteed  Obligations;  (j)  any  other  circumstance  that  might  constitute a defense of any Subsidiary Borrower or the Guarantor; or (k) any other cause whether  similar  or  dissimilar  to  the  foregoing  which,  in  the  absence  of  this  provision,  would  release,  affect or impair the obligations, covenants, agreements and duties of the Guarantor hereunder,  including without limitation any act or omission by any Lender or Agent or any other person  which increases the scope of the Guarantor’s risk, except with respect to any Lender’s or Agent’s  gross negligence or willful misconduct as provided in Section 9.03(b) of the Credit Agreement;                                        - 4 -  





 






   and in each case described in this paragraph whether or not the Guarantor shall have notice or  knowledge of any of the foregoing, each of which is specifically waived by the Guarantor.  The  Guarantor warrants to the Lenders and the Agents that it has adequate means to obtain from each  Subsidiary Borrower on a continuing basis information concerning the financial condition and  other matters with respect to each Subsidiary Borrower and that it is not relying on any Lender or  Agent to provide such information either now or in the future.   SECTION 4.    WAIVERS, ETC.           The  Guarantor  unconditionally  waives:  (a)  notice  of  any  of  the  matters  referred  to  in  Section 3 above; (b) all notices which may be required by statute, rule of law or otherwise to  preserve any rights of any Lender or Agent, including, without limitation, notice to the Guarantor  of  default,  presentment  to  and  demand  of  payment  or  performance from  any  Subsidiary  Borrower and protest for non-payment or dishonor; (c) any right to the exercise by any Lender or  Agent  of  any  right,  remedy,  power  or  privilege  in  connection  with  any  of  the  Transaction  Documents; (d) any requirement of diligence or marshaling on the part of any Lender or Agent;  (e)  any  requirement  that  any  Lender  or  Agent,  in the  event  of  any  default  by  any  Subsidiary  Borrower, first make demand upon or seek to enforce remedies against, any Subsidiary Borrower  or any other guarantor before demanding payment under or seeking to enforce this Guaranty; (f)  any right to notice of the disposition of any security which any Lender or Agent may hold from  any Subsidiary Borrower or otherwise and any right to object to the commercial reasonableness  of the disposition of any such security; and (g) all errors and omissions in connection with any  Lender’s or Agent’s administration of any of the Guaranteed Obligations, any of the Transaction  Documents or any other guarantor, or any other act or omission of any Lender or Agent which  changes the scope of the Guarantor’s risk.  The obligations of the Guarantor hereunder shall be  complete  and  binding forthwith upon  the  execution  of  this  Guaranty  by  it  and  subject  to  no  condition  whatsoever,  precedent  or  otherwise,  and  notice  of  acceptance  hereof  or  action  in  reliance  hereon  shall  not  be  required.  If  acceleration  of  the  time  for  payment  of  any  of  the  Guaranteed Obligations  is  stayed  upon  the  insolvency,  bankruptcy  or  reorganization  of  any  Subsidiary Borrower, all such amounts otherwise subject to acceleration under the terms of any  Transaction  Document  shall  nonetheless  be  payable  by  the  Guarantor  hereunder  forthwith  on  demand by the Administrative Agent made at the request of the Required Lenders.   SECTION 5.    NATURE OF GUARANTY; PAYMENTS.           This  Guaranty  is  an  absolute,  unconditional,  irrevocable  and continuing  guaranty  of  payment and not a guaranty of collection, and is wholly independent of and in addition to other  rights  and  remedies  of  any  Lender  or  Agent with  respect  to  any  Subsidiary  Borrower,  any  collateral,  any  other  guarantor  or  otherwise,  and  it  is  not  contingent  upon  the  pursuit  by  any  Lender  or Agent  of any  such  rights  and  remedies,  such  pursuit  being  hereby  waived  by  the  Guarantor.  The obligations of the Guarantor hereunder shall be continuing and shall continue  (regardless  of  any  statute of  limitations  otherwise  applicable)  and  cover  and  include  all  the  Guaranteed Obligations of each Subsidiary Borrower accruing or in the process of accruing to  the Lenders or the Agents before the Administrative Agent delivers to the Guarantor a release of  this Guaranty, which is in writing, refers specifically to this Guaranty, and is signed by a senior  vice president of the Administrative Agent.  Nothing shall discharge or satisfy the liability of the                                        - 5 -  





 






   Guarantor  hereunder  except  the  full  and  irrevocable  payment  and  performance  of  all  of  the  Guaranteed Obligations and the expiration or termination of all the Transaction Documents.  All  payments to be made by the Guarantor hereunder shall be made without set-offs or counterclaim,  and  the  Guarantor  hereby  waives  the  assertion  of  any  such  set-offs  or  counterclaims in  any  proceeding  to  enforce  its  obligations  hereunder.   All  payments  to  be  made  by  the  Guarantor  hereunder shall also be made without deduction or withholding for, or on account of, any present  or future taxes or other similar charges of whatsoever nature, provided that if the Guarantor is  nevertheless required by law to make any deduction or withholding, the Guarantor shall pay to  the  Lenders  and  the  Agents  such  additional  amounts  as  may  be  necessary to  ensure  that  the  Lenders and the Agents shall receive a net sum equal to the sum which it would have received  had no such deduction or withholding been made.  The Guarantor agrees that, if at any time all or  any part of any payment previously applied by any Lender or Agent to any of the Guaranteed  Obligations must be returned by such Lender or Agent for any reason, whether by court order,  administrative  order,  or  settlement  and  whether  as  a  “voidable  preference”,  “fraudulent  conveyance” or  otherwise, the Guarantor remains liable for the full amount returned as if such  amount had never been received by such Lender or Agent, notwithstanding any termination of  this Guaranty  or  any  cancellation  of  any  of  the  Transaction  Documents,  and  the  Guaranteed  Obligations and all obligations of the Guarantor hereunder shall be reinstated in such case.   SECTION 6.    EVIDENCE OF GUARANTEED OBLIGATIONS.           Each Lender’s and Agent’s books and records showing the Guaranteed Obligations shall  be admissible in any action or proceeding, shall be binding upon the Guarantor for the purpose of  establishing the Guaranteed Obligations due from any Subsidiary Borrower and shall constitute  prima  facie  proof,  absent  manifest  error,  of  the  Guaranteed  Obligations  of  each  Subsidiary  Borrower to such Lender or Agent, as well as the obligations of the Guarantor to such Lender or  Agent.   SECTION 7.    SUBORDINATION, SUBROGATION, CONTRIBUTION, ETC.           The Guarantor agrees that all present and future indebtedness, obligations and liabilities  of each Subsidiary Borrower to the Guarantor shall be fully subordinate and junior in right and  priority  of  payment  to  any  indebtedness  of  each  Subsidiary  Borrower  to  the  Lenders  and  the  Agents  and the Guarantor  shall not have  any  right  of  subrogation,  contribution  (including  but  without  limitation  the  contribution  and  subrogation  rights  granted  below),  reimbursement  or  indemnity whatsoever nor any right of recourse to security for the debts and obligations of any  Subsidiary  Borrower  unless  and  until  all  Guaranteed  Obligations  shall  have  been  paid  in  full,  such  payment  is not  subject  to any  possibility  of  revocation  or  rescission  and  all  Transaction  Documents have expired or been terminated.  Subject to the preceding sentence, if the Guarantor  makes a payment in respect of the Guaranteed Obligations it shall be subrogated to the rights of  the payee against each Subsidiary Borrower with respect to such payment.                                         - 6 -  





 






   SECTION 8.    SUCCESSORS AND ASSIGNS.           This  Guaranty  is  for  the  benefit  of  the  Agents  and  the  Lenders  and  their  respective  successors  and  permitted  assigns  and  in  the  event  of an  assignment  of  any  amounts  payable  under  any  Transaction  Document,  the  rights  hereunder,  to  the  extent applicable  to  the  Guaranteed Obligations so assigned, shall be transferred with such Guaranteed Obligations.  This  Guaranty shall be binding upon the Guarantor and its successors and permitted assigns.   SECTION 9.    JOINT AND SEVERAL OBLIGATIONS.           The  obligations  of  the  Guarantor  hereunder  shall  be  joint  and  several  with  any  other  future guarantor of the Guaranteed Obligations.   SECTION 10.   REPRESENTATIONS AND WARRANTIES.           The Guarantor hereby represents and warrants to the Lenders and the Agents that:               (a)   The  execution,  delivery  and  performance  by  the  Guarantor  of  this        Guaranty are within its corporate powers and have been duly authorized by all necessary        corporate,  stockholder  and  other  action.   This  Guaranty  has  been  duly  executed  and        delivered  by  the  Guarantor  and  constitutes  a  legal,  valid  and  binding  obligation  of  the        Guarantor,  enforceable  in  accordance  with  its  terms,  subject  to  applicable  bankruptcy,        insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally        and  subject to  general  principles  of  equity,  regardless  of  whether  considered  in  a        proceeding in equity or at law.               (b)   The  execution,  delivery  and  performance  by  the  Guarantor  of  this        Guaranty (i) do not require any consent or approval of, registration or filing with, or any        other action by, any Governmental Authority, except such as have been obtained or made        and are in full force and effect, (ii) will not violate any applicable law or regulation or the        charter,  by-laws  or  other  organizational  documents  of  the  Guarantor  or  any  of  its        Subsidiaries or any order of any Governmental Authority, (iii) will not violate or result in        a default under any indenture, agreement or other instrument binding upon the Guarantor        or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any        payment to be made by the Guarantor or any of its Subsidiaries, and (iv) will not result in        the  creation  or imposition  of  any  Lien  on  any  asset  of  the  Guarantor  or  any  of  its        Subsidiaries.               (c)   As  of  the  date  hereof,  each  of  the  following  is  true  and  correct  for  the        Guarantor: (i) the fair saleable value and the fair valuation of the Guarantor’s property is        greater than the total amount of its liabilities (including contingent liabilities) and greater        than  the  amount  that would  be  required  to  pay  its  probable  aggregate  liability  on  its        existing debts as they become absolute and matured, (ii) the Guarantor’s capital is not        unreasonably  small  in  relation  to  its  current  and/or  contemplated  business  or  other        undertaken transactions, and (iii) the Guarantor does not intend to incur, or believe that it        will incur, debt beyond its ability to pay such debts as they become due.                                        - 7 -  





 






               (d)   The Subsidiary Borrowers and the Guarantor are engaged as an integrated        group  in  related  businesses; that  the  integrated  operation  requires  financing  on  such  a        basis  that  credit  supplied  to  the  Subsidiary  Borrowers  and  the  Guarantor  can  be  made        available from time to time to various Subsidiaries of the Guarantor, as required for the        continued successful operation of the integrated group as a whole; and that the Guarantor        has  requested  the  Lenders to  continue  to  lend  and  to  make  credit  available  to each        Subsidiary  Borrower  for  the  purpose  of  financing  the  integrated  operations  of  the        Guarantor and its Subsidiaries, with the Guarantor expecting to derive benefit, directly or        indirectly, from the loans and other credit extended by the Lenders to each Subsidiary        Borrower, both in the Guarantor’s separate capacity and as a member of the integrated        group, as the successful operation and condition of the Guarantor is dependent upon the        continued  successful performance  of  the  functions  of  the  integrated  group  as a  whole.         The  Guarantor  hereby  determines  and  agrees  that  the  execution,  delivery  and        performance of this Guaranty are necessary and convenient to the conduct, promotion or        attainment of the business of the Guarantor and in furtherance of the corporate purposes        of the Guarantor.   SECTION 11.   INDEMNITY.           As  a  separate,  additional  and  continuing  obligation,  the Guarantor  unconditionally  and  irrevocably  undertakes  and  agrees  with  each  Lender  and  Agent  that,  should  the  Guaranteed  Obligations  not  be  recoverable from  the Guarantor  as  guarantor  under  this  Guaranty  for  any  reason  whatsoever  (including,  without  limitation,  by  reason  of  any  provision  of  any  of  the  Guaranteed Obligations or the Transaction Documents being or becoming void, unenforceable,  or otherwise invalid under any applicable law) then, notwithstanding any knowledge thereof by  any  Lender  or  Agent  at  any  time,  the  Guarantor  as  original  and  independent  obligor,  upon  demand by the Administrative Agent, will make payment to the Lenders and the Agents of the  Guaranteed Obligations by way of a full indemnity.   SECTION 12.   CUMULATIVE RIGHTS AND REMEDIES, ETC.           The  obligations  of  the  Guarantor  under  this  Guaranty  are  continuing  obligations  and  a  new cause of action shall arise in respect of each default hereunder.  No course of dealing on the  part  of  any  Lender  or  Agent,  nor  any  delay  or  failure  on  the  part  of  any  Lender  or  Agent  in  exercising any right, power or privilege hereunder, shall operate as a waiver of such right, power,  or privilege or otherwise prejudice the Lenders’ or the Agents’ rights and remedies hereunder;  nor  shall  any  single  or  partial  exercise  thereof  preclude  any  further  exercise  thereof  or  the  exercise of any other right, power or privilege.  No right or remedy conferred upon or reserved to  any  Lender  or  Agent  under  this  Guaranty  is  intended  to  be  exclusive  of  any  other  right  or  remedy, and every right and remedy shall be cumulative and in addition to every other right or  remedy given hereunder or now or hereafter existing under any applicable law.  Every right and  remedy  given  by  this  Guaranty  or  by  applicable  law  to  the  Lenders  and  the  Agents  may  be  exercised from time to time and as often as may be deemed expedient by any Lender or Agent.                                         - 8 -  





 






   SECTION 13.   SEVERABILITY.           If any one or more provisions of this Guaranty should be invalid, illegal or unenforceable  in  any  respect,  the  validity,  legality  and  enforceability  of  the  remaining  provisions  contained  herein  shall  not  in  any  way  be  affected,  impaired,  prejudiced  or  disturbed  thereby, and  any  provision hereunder found partially unenforceable shall be interpreted to be enforceable to the  fullest extent possible.  If at any time all or any portion of the obligation of the Guarantor under  this Guaranty would otherwise be determined by a court of competent jurisdiction to be invalid,  unenforceable  or  avoidable  under  Section  548  of  the  federal  Bankruptcy  Code  or  under  any  fraudulent  conveyance  or  transfer  laws  or  similar  applicable  law  of  any jurisdiction,  then  notwithstanding any other provisions of this Guaranty to the contrary such obligation or portion  thereof of the Guarantor under this Guaranty shall be limited to the greatest of (i) the value of  any quantified economic benefits accruing to the Guarantor as a result of this Guaranty, (ii) an  amount  equal  to  95%  of  the  excess  on  the  date  the  relevant  Guaranteed  Obligations  were  incurred of the present fair saleable value of the assets of the Guarantor over the amount of all  liabilities of the Guarantor, contingent or otherwise, and (iii) the maximum amount of which this  Guaranty is determined to be enforceable.   SECTION 14.   MERGER; AMENDMENTS; HEADINGS.           This Guaranty is intended as a final expression of the subject matter hereof and is also  intended as a complete and exclusive statement of the terms hereof.  The Guarantor’s liability  hereunder is independent of and in addition to its liability under any other guaranty previously or  subsequently  executed.   No  course  of  dealing,  course  of  performance  or  trade  usage,  and  no  parole evidence of any nature, shall be used to supplement or modify any terms hereof, nor are  there any conditions to the full effectiveness of this Guaranty.  None of the terms and provisions  of  this  Guaranty  may  be  waived,  altered,  modified  or  amended  in  any  way  except  by an  instrument in writing executed by duly authorized officers of the Administrative Agent and the  Guarantor.  The headings of the various paragraphs hereof are for the convenience of reference  only and shall in no way modify any of the terms hereof.   SECTION 15.   CHOICE OF LAW.           THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND  NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.   SECTION 16.   WAIVER OF JURY TRIAL.           THE GUARANTOR,  EACH AGENT  AND  EACH LENDER  IN  ACCEPTING  THIS GUARANTY,  HEREBY  WAIVES TRIAL  BY  JURY  IN  ANY JUDICIAL  PROCEEDING INVOLVING, DIRECTLY  OR  INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY  ARISING  OUT  OF, RELATED  TO, OR  CONNECTED  WITH  THIS GUARANTY  OR  THE  RELATIONSHIP  ESTABLISHED HEREUNDER.                                         - 9 -  





 






   SECTION 17.   SUBMISSION TO JURISDICTION; WAIVERS.          (a)  The Guarantor hereby irrevocably and unconditionally:                (i)  (x) submits, for itself and its property, to the nonexclusive jurisdiction of        any court of the State of Illinois and any court of the United States District Court sitting        in Illinois, and any appellate court from any thereof, in any action or proceeding arising        out of or relating to this Guaranty, or for recognition or enforcement of any judgment,        and  each  of  the  parties  hereto  hereby irrevocably  and  unconditionally  agrees  that  all        claims in respect of any such action or proceeding may be heard and determined in such        Illinois State court or, to the extent permitted by law, in such Federal court, (y) agrees        that a final judgment in any such action or proceeding shall be conclusive and may be        enforced in other jurisdictions by suit on the judgment or in any other manner provided        by law and (z) nothing in this Guaranty shall affect any right that any Agent or Lender        may otherwise have to bring any action or proceeding relating to this Guaranty against        the Guarantor or its properties in the courts of any jurisdiction;               (ii)  waives,  to  the  fullest  extent  it  may  legally  and  effectively  do  so,  any        objection which it may now or hereafter have to the laying of venue of any suit, action or        proceeding arising out of or relating to this Guaranty in any court referred to in paragraph        (i) of this Section and waives, to the fullest extent permitted by law, the defense of an        inconvenient forum to the maintenance of such action or proceeding in any such court;               (iii) 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,  to  the Guarantor  at  the  address  specified  in        Section 18, or at such other address of which the Administrative Agent shall have been        notified pursuant thereto;               (iv)  agrees that nothing herein shall affect the right to effect service of process        in any  other  manner permitted  by  law  or  shall  limit  the  right  to  sue  in  any  other        jurisdiction; and               (v)   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 subsection        any special, exemplary, punitive or consequential damages.   SECTION 18.   NOTICES.           All notices, requests and other communications to any party hereunder shall be given or  made  by  telecopier  or  other  writing  and  telecopied,  or  mailed  or  delivered  to  the intended  recipient at its address or telecopier number set forth on the signature pages hereof or such other  address or telecopy number as such party may hereafter specify for such purpose by notice to the  Administrative Agent in accordance with the provisions of Section 9.01 of the Credit Agreement.   Except as otherwise provided in this Guaranty, all such communications shall be deemed to have  been  duly  given  when  transmitted  by  telecopier,  or  personally  delivered  or,  in  the  case  of  a                                       - 10 -  





 






   mailed notice sent by certified mail return-receipt requested, on the date set forth on the receipt  (provided, that any refusal to accept any such notice shall be deemed to be notice thereof as of  the time of any such refusal), in each case given or addressed as aforesaid.   SECTION 19.   FOREIGN CURRENCY.           This Guaranty arises in the context of an international transaction, and the specification  of payment in foreign currency pursuant to the Transaction Documents is of the essence.  The  currency designed in the Transaction Documents shall be the currency of account and payment  under the Transaction Documents and hereunder.  The obligation of the Guarantor shall not be  discharged by an amount paid in any other currency or at another place, whether pursuant to a  judgment  or  otherwise,  to the  extent  that  the  amount  so  paid,  on  prompt  conversion  into  the  applicable currency and transfer to the Agents or the Lenders, as the case may be, under normal  banking  procedure,  does  not  yield  the amount  of  the  applicable  currency  due  under  this  Guaranty.  In the event that any payment, whether pursuant to a judgment or otherwise, upon  conversion and transfer, does not result in payment of the amount of the applicable currency due  under this Guaranty, the Agents or the Lenders, as the case may be, shall have an independent  cause of action against the Guarantor for the applicable currency deficiency.   SECTION 20.   NO INVESTIGATION.          The  Guarantor  hereby  waives  unconditionally  any  obligation  which,  in  the  absence  of  such provisions, the Agents or the Lenders might otherwise have to investigate or to assure that  there  has  been  compliance  with  the  law  of  any  jurisdiction  of  any  Subsidiary  Borrower  with  respect  to  the  Guaranteed  Obligations  recognizing  that,  to  save  both  time  and  expense,  the  Guarantor has requested that the Agents and the Lenders not undertake such investigation.  The  Guarantor  hereby  expressly  confirms  that  the  obligations  of  the  Guarantor  hereunder  shall  remain in full force and effect without regard to compliance or noncompliance with any such law  and irrespective of any investigation or knowledge of any Agent or Lender of any such law.   SECTION 21.   KEEPWELL.          To the extent the Guarantor qualifies as a Qualified ECP Guarantor, the Guarantor hereby  absolutely, unconditionally and irrevocably undertakes to provide such funds and other support  as may be needed from time to time by each other Borrower to honor all of its obligations under  the Loan Documents in respect of Swap Obligations (provided, however, that the Guarantor, as a  Qualified ECP Guarantor, shall only be liable under this Section for the maximum amount of  such liability that can be hereby incurred without rendering its obligations under this Section, or  otherwise  under  this  Guaranty  or  any  other  Loan  Document,  voidable  under  any debtor  relief  laws and not for any greater amount).  Subject to Section 5 of this Guaranty, the obligations of  the Qualified ECP Guarantor under this Section shall remain in full force and effect until all of  the Guaranteed Obligations and all the obligations of the Borrowers shall have been paid in full  and  the  Commitments  terminated.   The  Qualified  ECP  Guarantor intends  that  this  Section  constitute,  and  this  Section  shall  be  deemed  to  constitute,  a  “keepwell,  support  or  other                                        - 11 -  





 






   agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II)  of the Commodity Exchange Act.         This Guaranty is executed and effective as of the day and year first above written.                                                                                  HERMAN MILLER, INC.                                                                                                                           By: ____________________________________                                            Name: ______________________________                                            Title: _______________________________                                                                                    - 12 -  





 






                                  EXHIBIT F                            MANDATORY COST RATE   SECTION 1.    DEFINITIONS.         In this Exhibit F:         “Act” means the Bank of England Act of 1998.         The  terms “Eligible  Liabilities” and “Special  Deposits” have  the  meanings  ascribed to the them under or pursuant to the Act or by the Bank of England (as may be  appropriate), on the day of the application of the formula set forth in this Exhibit F.         “Fee  Base” has  the  meaning  ascribed  to  it  for  the  purposes  of,  and  shall  be  calculated in accordance with, the Fees Regulations.         “Fees  Regulations” means,  as  appropriate, either:   (i)  the  Banking  Supervision  (Fees) Regulations 1998, or (ii) such regulations as from time to time may be in force,  relating to the payment of fees for banking supervision in the United Kingdom.         “FSA” means the Financial Services Authority.         All other capitalized terms used but not defined herein shall have the meanings  ascribed to such terms in the Credit Agreement.   SECTION 2.    CALCULATION OF THE MANDATORY COST RATE.         The Mandatory Cost Rate is an incremental per annum addition to the interest rate  charged with respect to each Eurocurrency Loan to compensate the Lenders for the cost  attributable to such Eurocurrency Loan resulting from the imposition from time to time  under  or  pursuant  to  the  Act  and/or  by  the  Bank  of  England  and/or  the  FSA  (or  other  United  Kingdom governmental  authorities  or  agencies)  of  a  requirement  to  place  non- interest bearing or Special Deposits (whether interest bearing or not) with the Bank of  England and/or pay fees to the FSA calculated by reference to the liabilities used to fund  the relevant Eurocurrency Loan.         The “Mandatory Cost Rate” is the rate determined by the Administrative Agent  to be equal to the rate (rounded upward, if necessary, to the next higher 1/100 of 1%)  resulting from the application of the following formula:      





 






   For Sterling:                   AB+C(B–D) + Ex 0.01                      100–(A+C)   For other Agreed Currencies:                         E x 0.01                         300   where on the day of application of the formula,         A     is the percentage of Eligible Liabilities (in excess of any stated minimum)              which the Administrative Agent is from time to time required to maintain              as an interest free cash ratio deposit with the Bank of England.         B     is  the  Eurocurrency  Base  Rate  applicable  to  the  related  Eurocurrency              Loan.         C     is the level of interest-bearing Special Deposits, expressed as a percentage              of Eligible Liabilities,  which  the  Administrative  Agent  is  required  from              time  to  time  to maintain  by  the  Bank  of  England  (or  other  United              Kingdom governmental authority or agency).         D     is the percentage rate per annum payable by the Bank of England to the              Administrative Agent on Special Deposits.         E     is the rate payable by the Administrative Agent to the FSA pursuant to the              Fees  Regulations  and  expressed  in  pounds  per  1,000,000  Sterling  of  the              Fee Base of the Administrative Agent.   (A, B, C and D are to be expressed in the formula as numbers and not as percentages.  A  negative result obtained from subtracting D from B shall be counted as zero.)   The  Mandatory  Cost  Rate  attributable  to  a  Eurocurrency  Loan  for  any  period  shall  be  calculated at or about 11:00 a.m. (London time) on the first day of such period for the  duration of such period.   The determination of the Mandatory Cost Rate by the Administrative Agent in relation to  any period shall, in the absence of manifest error, be conclusive and binding on all parties  to the Loan Documents.                                      - 2 -  





 






                                     EXHIBIT G                     OPINION OF SUBSIDIARY BORROWER’S COUNSEL                            FOR DOMESTIC SUBSIDIARIES                                   [Effective Date]   Wells Fargo Bank, National Association, as   Administrative Agent, and the Lenders  party to the Credit Agreement referred to below    Ladies and Gentlemen:         I  have  acted  as  counsel  for [___________],  a [___________]  (the “Borrowing  Subsidiary”), in connection with the Fifth Amended and Restated Credit Agreement dated as of  August 28, 2019 (the “Credit  Agreement”),  among Herman  Miller,  Inc.,  the  Subsidiary  Borrowers party thereto, the Lenders party thereto, Wells Fargo Bank, National Association, as  Administrative  Agent, JPMorgan  Chase  Bank,  N.A.,  as  Syndication  Agent,  and  Wells  Fargo  Securities,  LLC  and JPMorgan  Chase  Bank,  N.A.,  as  Joint Lead  Arrangers  and  Joint  Bookrunners.  Terms defined in the Credit Agreement are used herein with the same meanings.         I have examined originals or copies, certified or otherwise identified to my satisfaction,  of such documents, corporate records, certificates of public officials and other instruments and  have  conducted  such  other  investigations  of  fact  and  law as  I  have  deemed  necessary  or  advisable for purposes of this opinion.         Upon the basis of the foregoing, I am of the opinion that:                1.   The Borrowing Subsidiary is duly organized, validly existing and in good        standing  under  the  laws  of  _______________ [specify  the  state  of  incorporation  or        organization] (the “Jurisdiction”).                2.   The  Borrowing  Subsidiary  has  the  power  and  authority,  and  the  legal        right, to make, deliver and perform its obligations under the Credit Agreement and the        other  Loan  Documents  to  which  it  is  a  party  (collectively,  the “Subsidiary  Loan        Documents”) and to borrow under the Credit Agreement.  The Borrowing Subsidiary has        taken  all  necessary  corporate  and  other  action  to  authorize  the  performance  of  its        obligations  under  the  Subsidiary  Loan Documents  and  to  authorize  the  execution,        delivery and performance of the Subsidiary Loan Documents.                3.   Except  for  consents,  authorizations,  approvals,  notices and  filings        described on the attached Schedule 1, all of which have been obtained, made or waived        and are in full force and effect, no consent or authorization of, approval by, notice to,        filing with or other act by or in respect of, any Governmental Authority is required in     





 






                connection with the borrowings by the Borrowing Subsidiary under the Subsidiary Loan  Documents or with the execution, delivery, performance, validity or enforceability of any  of the Subsidiary Loan Documents.          4.   The Subsidiary Loan Documents have been duly executed and delivered  on behalf of the Borrowing Subsidiary.          5.   The  execution  and  delivery  of  the  Subsidiary  Loan  Documents  by  the  Borrowing Subsidiary, the performance of its obligations thereunder, the consummation  of the  transactions  contemplated  thereby,  the  compliance  by  the  Subsidiary  Borrower  with any of the provisions thereof, the borrowings under the Credit Agreement and the  use of proceeds thereof, all as provided therein, will not violate any requirement of law or  regulation applicable to the Borrowing Subsidiary.          6.   There are no taxes imposed by the Jurisdiction (a) on or by virtue of the  execution, delivery, enforcement or performance of the Subsidiary Loan Documents or  (b) on any payment to be made by the Borrowing Subsidiary pursuant to the Subsidiary  Loan Documents.          7.   To ensure the legality, validity, enforceability or admissibility in evidence  of  the  Subsidiary  Loan  Documents,  it  is  not  necessary  that  the  Subsidiary  Loan  Documents or any other document be filed, registered or recorded with, or executed or  notarized before, any court of other authority of the Jurisdiction or that any registration  charge  or  stamp  or  similar  tax  be  paid  on  or  in  respect  of  the  Subsidiary  Loan  Documents.          8.   The Subsidiary Loan Documents are in proper legal form under the laws  of the Jurisdiction for the enforcement thereof against the Borrowing Subsidiary under  the laws of the Jurisdiction.          9.   In  any  action  or  proceeding  arising  out  of  or  relating  to  the  Subsidiary  Loan Documents in any court in the Jurisdiction, such court would recognize and give  effect  to  the  choice  of  law  provisions  in  the  Subsidiary  Loan  Documents  wherein  the  parties  thereto  agree  that  the  Subsidiary  Loan  Documents  shall  be  governed  by,  and  construed and interpreted in accordance with, the laws of the State of New York.         10.   It is not necessary under the laws of the Jurisdiction (a) in order to enable  the  Agents  and  the  Lenders  or  any  of  them  to  enforce  their  respective  rights  of  the  Subsidiary  Loan  Documents  or  (b) by  reason  of  the  execution  of  the  Subsidiary  Loan  Documents  to  which  the  Borrowing  Subsidiary is  a  party  or  the  performance  of  the  Subsidiary Loan Documents that any of them should be licensed, qualified or entitled to  carry on business in the Jurisdiction.         11.   Neither any Agent nor any of the Lenders will be deemed to be resident,  domiciled, carrying on business or subject to taxation in the Jurisdiction merely by reason  of the execution of the Subsidiary Loan Documents or the performance or enforcement of                                  - 2 -  





 






         any  thereof.   The  performance  by  the  Agents and  the  Lenders  or  any  of  them  of  any        action required or permitted under the Subsidiary Loan Documents will not violate any        law or regulation, or be contrary to the public policy, of the Jurisdiction.               12.   If  any  judgment  of  a  competent  court  outside  the  Jurisdiction  were        rendered against the Borrowing Subsidiary in connection with any action arising out of or        relating  to  the  Subsidiary  Loan  Documents,  such  judgment  would  be  recognized  and        could  be sued upon  in the  courts  of  the  Jurisdiction,  and  such  courts  could  grant  a        judgment  which  would  be  enforceable  against  the  Borrowing  Subsidiary  in  the        Jurisdiction without any retrial unless it is shown that (a) the foreign court did not have        jurisdiction in  accordance with  its  jurisdictional  rules,  (b)  the  party  against  whom  the        judgment of such foreign court was obtained had no notice of the proceedings or (c) the        judgment  of  such  foreign  court  was  obtained  through  collusion  or  fraud  or  was  based        upon clear mistake of fact or law.         The  law  covered  by  the  opinions  expressed  herein  is  limited  to  the  federal  law  of the  United States and the law of the State of Michigan.  As you know, I am not licensed to practice  law  in  the  State  of  New  York  or  the  Jurisdiction and,  for  purposes  of  my  opinion  herein  regarding  the  enforceability  of  the  Subsidiary  Loan  Documents,  I  have  assumed  that  the  substantive laws of the State of New York and the Jurisdiction are the same as the substantive  laws of the State of Michigan.  This opinion is rendered solely to you in connection with the  above matter.  This opinion may not be relied upon by you for any other purpose or relied upon  by any other Person (other than your successors and assigns as Lenders and Persons that acquire  participations in your Loans) without my prior written consent.                                                                                  Very truly yours,                                                                                  - 3 -  





 






                SCHEDULE 1                                                     - 4 -