thirdarcreditagreement






  LEGAL02/40527467v10  Loan Number:  6023ZMC      EXECUTION VERSION       THIRD AMENDED AND RESTATED CREDIT AGREEMENT    Dated as of April 19, 2021    by and among    MHC OPERATING LIMITED PARTNERSHIP,  as Borrower,    EQUITY LIFESTYLE PROPERTIES, INC.,  as Parent,    THE FINANCIAL INSTITUTIONS PARTY HERETO  AND THEIR ASSIGNEES UNDER SECTION 12.5.,  as Lenders,    and    WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent,    ______________________________________________________    WELLS FARGO SECURITIES, LLC  and  BOFA SECURITIES, INC.,  as Joint Lead Arrangers  and  Joint Bookrunners,    BANK OF AMERICA, N.A.,  as Syndication Agent,    and    REGIONS BANK,  TRUIST SECURITIES, INC.,  and  U.S. BANK NATIONAL ASSOCIATION,  as Joint Lead Arrangers and Documentation Agents      





 






  - i -  LEGAL02/40527467v10  TABLE OF CONTENTS  Article I. Definitions ............................................................................................................. 1  Section 1.1.  Definitions........................................................................................... 1  Section 1.2.  General; References to Central time. .................................................. 37  Section 1.3.  Financial Attributes of Non-Wholly Owned Subsidiaries. ................. 38  Section 1.4.  Rates. ................................................................................................... 38  Section 1.5.  Divisions. ............................................................................................ 39  Article II. Credit Facility ....................................................................................................... 39  Section 2.1.  Revolving Loans. ................................................................................ 39  Section 2.2.  Term Loans. ........................................................................................ 40  Section 2.3.  Letters of Credit. ................................................................................. 40  Section 2.4.  [Reserved]. .......................................................................................... 45  Section 2.5.  Rates and Payment of Interest on Loans. ............................................ 45  Section 2.6.  Number of Interest Periods. ................................................................ 46  Section 2.7.  Repayment of Loans. .......................................................................... 46  Section 2.8.  Prepayments. ....................................................................................... 47  Section 2.9.  Continuation. ....................................................................................... 47  Section 2.10.  Conversion. ....................................................................................... 48  Section 2.11.  Notes. ................................................................................................ 48  Section 2.12.  Voluntary Reductions of the Revolving Commitment. ..................... 49  Section 2.13.  Extension of Revolving Termination Date. ...................................... 49  Section 2.14.  Expiration Date of Letters of Credit Past Commitment  Termination. ................................................................................................ 49  Section 2.15.  Amount Limitations. ......................................................................... 50  Section 2.16.  Increase in Revolving Commitments and Additional Term Loans. .. 50  Section 2.17.  Funds Transfer Disbursements. ......................................................... 51  Section 2.18.  Reallocations on Effective Date. ....................................................... 51  Article III. Payments, Fees and Other General Provisions ................................................... 52  Section 3.1.  Payments. ............................................................................................ 52  Section 3.2.  Pro Rata Treatment. ............................................................................ 53  Section 3.3.  Sharing of Payments, Etc. ................................................................... 53  Section 3.4.  Several Obligations. ............................................................................ 54  Section 3.5.  Fees. .................................................................................................... 54  Section 3.6.  Computations. ..................................................................................... 55  Section 3.7.  Usury. .................................................................................................. 55  Section 3.8.  Statements of Account. ....................................................................... 55  Section 3.9.  Defaulting Lenders. ............................................................................. 56  Section 3.10.  Taxes. ................................................................................................ 59  Article IV. Yield Protection, Etc. .......................................................................................... 63  Section 4.1.  Additional Costs; Capital Adequacy. .................................................. 63  Section 4.2.  Suspension of LIBOR Loans. ............................................................. 64  Section 4.3.  Illegality. ............................................................................................. 67  Section 4.4.  Compensation. .................................................................................... 67  Section 4.5.  Treatment of Affected Loans. ............................................................. 67  Section 4.6.  Affected Lenders. ................................................................................ 68  Section 4.7.  Change of Lending Office................................................................... 69  





 






  - ii -  LEGAL02/40527467v10  Section 4.8.  Assumptions Concerning Funding of LIBOR Loans. ......................... 69  Article V. Conditions Precedent ........................................................................................... 69  Section 5.1.  Initial Conditions Precedent. ............................................................... 69  Section 5.2.  Conditions Precedent to All Loans and Letters of Credit. .................. 71  Article VI. Representations and Warranties ......................................................................... 72  Section 6.1.  Representations and Warranties. ......................................................... 72  Section 6.2.  Survival of Representations and Warranties, Etc. ............................... 78  Article VII. Affirmative Covenants ...................................................................................... 78  Section 7.1.  Preservation of Existence and Similar Matters. .................................. 78  Section 7.2.  Compliance with Applicable Law. ...................................................... 79  Section 7.3.  Maintenance of Property. .................................................................... 79  Section 7.4.  Conduct of Business. .......................................................................... 79  Section 7.5.  Insurance. ............................................................................................ 79  Section 7.6.  Payment of Taxes. ............................................................................... 80  Section 7.7.  Books and Records; Inspections. ........................................................ 80  Section 7.8.  Use of Proceeds. .................................................................................. 80  Section 7.9.  Environmental Matters. ....................................................................... 81  Section 7.10.  Further Assurances. ........................................................................... 81  Section 7.11.  REIT Status. ...................................................................................... 81  Section 7.12.  Exchange Listing. ............................................................................. 81  Article VIII. Information ...................................................................................................... 81  Section 8.1.  Quarterly Financial Statements. .......................................................... 82  Section 8.2.  Year-End Statements. ......................................................................... 82  Section 8.3.  Compliance Certificate. ...................................................................... 82  Section 8.4.  Other Information. .............................................................................. 82  Section 8.5.  Electronic Delivery of Certain Information. ....................................... 84  Section 8.6.  Public/Private Information. ................................................................. 85  Section 8.7.  PATRIOT Act Notice; Compliance. ................................................... 85  Section 8.8.  Qualifying Unencumbered Properties. ................................................ 85  Article IX. Negative Covenants ............................................................................................ 85  Section 9.1.  Financial Covenants. ........................................................................... 86  Section 9.2.  Indebtedness. ....................................................................................... 87  Section 9.3.  Liens. ................................................................................................... 87  Section 9.4.  Negative Pledge. ................................................................................. 88  Section 9.5.  Restrictions on Intercompany Transfers. ............................................ 89  Section 9.6.  Merger, Consolidation, Sales of Assets and Other Arrangements. ..... 89  Section 9.7.  Plan Assets. ......................................................................................... 90  Section 9.8.  Fiscal Year. ......................................................................................... 90  Section 9.9.  Modifications of Organizational Documents. ..................................... 90  Section 9.10.  Transactions with Affiliates. ............................................................. 90  Section 9.11.  Environmental Matters. ..................................................................... 91  Section 9.12.  Derivatives Contracts. ....................................................................... 91  Article X. Default .................................................................................................................. 91  Section 10.1.  Events of Default. ............................................................................. 91  Section 10.2.  Remedies Upon Event of Default. .................................................... 94  





 






  - iii -  LEGAL02/40527467v10  Section 10.3.  Remedies Upon Default. ................................................................... 95  Section 10.4.  Marshaling; Payments Set Aside. ..................................................... 96  Section 10.5.  Allocation of Proceeds. ..................................................................... 96  Section 10.6.  Letter of Credit Collateral Account. ................................................. 97  Section 10.7.  Rescission of Acceleration by Requisite Lenders. ............................ 98  Section 10.8.  Performance by Administrative Agent.............................................. 98  Section 10.9.  Rights Cumulative. ........................................................................... 99  Article XI. The Administrative Agent .................................................................................. 99  Section 11.1.  Appointment and Authorization. ....................................................... 99  Section 11.2.  Wells Fargo as Lender. ..................................................................... 100  Section 11.3.  Approvals of Lenders. ....................................................................... 101  Section 11.4.  Notice of Events of Default. ............................................................. 101  Section 11.5.  Administrative Agent’s Reliance. ..................................................... 101  Section 11.6.  Indemnification of Administrative Agent. ........................................ 102  Section 11.7.  Lender Credit Decision, Etc. ............................................................. 103  Section 11.8.  Successor Administrative Agent. ...................................................... 103  Section 11.9.  Titled Agents. .................................................................................... 104  Article XII. Miscellaneous .................................................................................................... 105  Section 12.1.  Notices. ............................................................................................. 105  Section 12.2.  Expenses. .......................................................................................... 107  Section 12.3.  Setoff. ................................................................................................ 107  Section 12.4.  Litigation; Jurisdiction; Other Matters; Waivers. ............................. 108  Section 12.5.  Successors and Assigns. .................................................................... 109  Section 12.6.  Amendments and Waivers. ............................................................... 114  Section 12.7.  Nonliability of Administrative Agent and Lenders. .......................... 117  Section 12.8.  Confidentiality. ................................................................................. 117  Section 12.9.  Indemnification. ................................................................................ 118  Section 12.10.  Termination; Survival. .................................................................... 120  Section 12.11.  Severability of Provisions. .............................................................. 120  Section 12.12.  GOVERNING LAW. ...................................................................... 121  Section 12.13.  Counterparts. ................................................................................... 121  Section 12.14.  Obligations with Respect to Loan Parties. ...................................... 121  Section 12.15.  Independence of Covenants. ........................................................... 121  Section 12.16.  Limitation of Liability. .................................................................... 121  Section 12.17.  Entire Agreement. ........................................................................... 121  Section 12.18.  Construction. ................................................................................... 122  Section 12.19.  Headings. ........................................................................................ 122  Section 12.20.  Acknowledgement and Consent to Bail-in of Affected Financial  Institutions. ................................................................................................. 122  Section 12.21.  Acknowledgement Regarding any Supported QFCs. ..................... 122  Section 12.22.  No Novation. ................................................................................... 123      SCHEDULE I Revolving Commitments and Term Loans  SCHEDULE 1.1. Qualifying Unencumbered Properties  SCHEDULE 6.1.(b) Ownership Structure  SCHEDULE 6.1.(h) Litigation  SCHEDULE 9.10. Transactions with Affiliates    





 






  - iv -  LEGAL02/40527467v10    EXHIBIT A Form of Assignment and Assumption Agreement  EXHIBIT B Form of Guaranty  EXHIBIT C Form of Notice of Revolving Borrowing  EXHIBIT D Form of Notice of Continuation  EXHIBIT E Form of Notice of Conversion  EXHIBIT F [Reserved]  EXHIBIT G Form of Revolving Note  EXHIBIT H [Reserved]  EXHIBIT I Form of Disbursement Instruction Agreement   EXHIBIT J Form of Opinion of Counsel  EXHIBIT K  Form of Compliance Certificate  EXHIBIT L  Form of Term Note  EXHIBIT M  Form of Notice of Term Borrowing  EXHIBIT N  Forms of U.S. Tax Compliance Certificates  EXHIBIT O  Form of Sustainability Grid Notice       





 






  LEGAL02/40527467v10   THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated  as of April 19, 2021 by and among MHC OPERATING LIMITED PARTNERSHIP, a limited partnership  formed under the laws of the State of Illinois (the “Borrower”), EQUITY LIFESTYLE PROPERTIES,  INC., a corporation formed under the laws of the State of Maryland (the “Parent”), each of the financial  institutions initially a signatory hereto together with their successors and assignees under Section 12.5. (the  “Lenders”) and  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the  “Administrative Agent”), with WELLS FARGO SECURITIES, LLC and BOFA SECURITIES, INC., as  Joint Lead Arrangers and Joint Bookrunners (each a “Lead Arranger”), BANK OF AMERICA, N.A., as  Syndication Agent (the “Syndication Agent”) and REGIONS BANK, TRUIST SECURITIES, INC., and  U.S. BANK NATIONAL ASSOCIATION, as Documentation Agents (each a  “Documentation Agent”)  and Joint Lead Arrangers.     WHEREAS, certain of the Lenders and other financial institutions have made available to the  Borrower credit facilities on the terms and conditions contained in that certain Second Amended, Restated  and Consolidated Credit Agreement dated as of October 27, 2017 (as amended and in effect immediately  prior to the date hereof, the “Existing Credit Agreement”) by and among the Borrower, the Parent, such  Lenders, certain other financial institutions and the Administrative Agent; and     WHEREAS, the Administrative Agent and the Lenders desire to amend and restate the terms of,  the Existing Credit Agreement, all on the terms and conditions contained herein.     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged by the parties hereto, the parties hereto agree that the Existing Credit Agreement  is hereby amended and restated as follows:    ARTICLE I. DEFINITIONS  Section 1.1.  Definitions.   In addition to terms defined elsewhere herein, the following terms shall have the following  meanings for the purposes of this Agreement:     “2020 Baseline” means the Sustainability Metric at the end of the January 1 through December 31,  2020 fiscal year.      “Accommodation Obligations” as applied to any Person, means any obligation, contingent or  otherwise, of that Person in respect of which that Person is liable for any Indebtedness or other obligation  or liability of another Person, including without limitation and without duplication (a) any such  Indebtedness, obligation or liability directly or indirectly guaranteed, endorsed (otherwise than for  collection or deposit in the ordinary course of business), co-made or discounted or sold with recourse by  that Person, or in respect of which that Person is otherwise directly or indirectly liable, including  Contractual Obligations (contingent or otherwise) arising through any agreement to purchase, repurchase  or otherwise acquire such Indebtedness, obligation or liability or any security therefor, or to provide funds  for the payment or discharge thereof (whether in the form of loans, advances, stock purchases, capital  contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition,  or to make payment other than for value received and (b) all Indebtedness of other Persons which is recourse  to such Person (except for Non-Recourse Exceptions).    “Additional Costs” has the meaning given that term in Section 4.1.(b).    “Additional Term Loans” has the meaning given that term in Section 2.16.   





 






  - 2 -  LEGAL02/40527467v10     “Adjusted EBITDA” means, for any given period, (a) the EBITDA for such period, minus  (b) Capital Reserves.     “Administrative Agent” means Wells Fargo Bank, National Association as contractual  representative of the Lenders under this Agreement, or any successor Administrative Agent appointed  pursuant to Section 11.8.     “Administrative Questionnaire” means the Administrative Questionnaire completed by each  Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the  Lenders from time to time.    “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.    “Affected Lender” has the meaning given that term in Section 4.6.     “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.  In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate  of the Borrower.     “Agreement Date” means the date as of which this Agreement is dated.     “Announcements” has the meaning given that term in Section 1.4.    “Anti-Corruption Laws” means all Applicable 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 Applicable 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 Facility Fee” means the percentage set forth in the table below corresponding to the  Level at which the Applicable Margins are determined in accordance with the definition thereof:    Level Facility Fee  1 0.20%  2 0.20%  3 0.20%  4 0.25%  5 0.30%  6 0.35%    Any change in the applicable Level at which the Applicable Margins are determined shall result in a  





 






  - 3 -  LEGAL02/40527467v10  corresponding and simultaneous change in the Applicable Facility Fee. The provisions of this definition  shall be subject to Section 2.5.(c).     “Applicable Law” means all international, foreign, federal, state and local statutes, treaties, rules,  guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or  authorities, including the interpretation or administration thereof by any Governmental Authority charged  with the enforcement, interpretation or administration thereof, and all applicable administrative orders,  directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental  Authority, in each case whether or not having the force of law.     “Applicable Margin” means, with respect to a particular Class and Type of Loan, the percentage  rate set forth below corresponding to the ratio of Total Indebtedness to Total Asset Value as determined in  accordance with Section 9.1.(a):      Level  Ratio of Total  Indebtedness to  Total Asset Value  Applicable  Margin for  Revolving Loans  that are LIBOR  Loans  Applicable  Margin for  Revolving Loans  that are Base  Rate Loans   Applicable  Margin for Term  Loans that are  LIBOR Loans   Applicable  Margin for Term  Loans that are  Base Rate Loans     1  Less than or equal  to 0.35 to 1.00  1.25% 0.25% 1.40% 0.40%    2  Greater than 0.35  to 1.00 but less  than or equal to  0.40 to 1.00  1.35% 0.35% 1.50% 0.50%    3  Greater than 0.40  to 1.00 but less  than or equal to  0.45 to 1.00  1.40% 0.40% 1.55% 0.55%    4  Greater than 0.45  to 1.00 but less  than or equal to  0.50 to 1.00  1.45% 0.45% 1.65% 0.65%    5  Greater than 0.50  to 1.00 but less  than or equal to  0.55 to 1.00  1.55% 0.55% 1.80% 0.80%  6 Greater than 0.55  to 1.00  1.65% 0.65% 1.95% 0.95%    The Applicable Margins shall be determined by the Administrative Agent from time to time in accordance  with the table above, based on the range which the ratio of Total Indebtedness to Total Asset Value as set  forth in the Compliance Certificate most recently delivered by the Borrower pursuant to Section 8.3. then  falls in the table set forth above (each such range a “Level”).  Any adjustment to the Applicable Margins  shall be effective as of the first day of the calendar month immediately following the month during which  the Borrower delivers to the Administrative Agent the applicable Compliance Certificate pursuant to  Section 8.3.  If the Borrower fails to deliver a Compliance Certificate pursuant to Section 8.3., the  Applicable Margins shall equal the percentages corresponding to Level 6 until the first day of the calendar  month immediately following the month that the required Compliance Certificate is delivered.   Notwithstanding the foregoing, for the period from the Effective Date through but excluding the date on  which the Administrative Agent first determines the Applicable Margins as set forth above, the Applicable  Margins shall be determined based on Level 1.  Thereafter, such Applicable Margin shall be adjusted from  time to time as set forth in this definition.    





 






  - 4 -  LEGAL02/40527467v10    Notwithstanding the foregoing, if at the end of any fiscal year the Borrower meets the Sustainability Metric  Threshold Percentage for such fiscal year, then from and after the fifth (5th) Business Day following the  date the Borrower provides to the Administrative Agent a notice in the form of Exhibit O attached hereto  (the “Sustainability Grid Notice”) that the Sustainability Metric Threshold Percentage for such fiscal year  was satisfied, the Applicable Margin for Revolving Loans shall decrease by 0.01% (but not to below zero  percent per annum) from the Applicable Margin that would otherwise be applicable; provided that (x) at no  time shall the reduction in the Applicable Margin for Revolving Loans resulting from the delivery of the  Sustainability Grid Notice exceed 0.01% and (y) on the one year anniversary of such change to the  Applicable Margin, the Applicable Margin shall automatically revert to the original grid set forth above  unless and until the Borrower delivers a Sustainability Grid Notice to the Administrative Agent indicating  that the Sustainability Metric Percentage for the new fiscal year has been satisfied.      The provisions of this definition shall be subject to Section 2.5.(c).       “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender.      “Assignee” has the meaning given that term in Section 12.5.(b).     “Assignment and Assumption” means an Assignment and Assumption entered into by a Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.5.), and  accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved  by the Administrative Agent.     “Attributable Indebtedness” means, on any date, without duplication, (a) in respect of any Capital  Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person  prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the  capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable  agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in  accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capital  Lease and (c) all Synthetic Debt of such Person.    “Available Tenor” means, as of any date of determination and with respect to the then-current  Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark  or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as  applicable, in each case, that is or may be used for determining the length of an Interest Period pursuant to  this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark  that is then-removed from the definition of “Interest Period” pursuant to Section 4.2.(b)(iv).    “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.    “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation rule or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,  Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  





 






  - 5 -  LEGAL02/40527467v10     “Bankruptcy Code” means the Bankruptcy Code of 1978, as amended.     “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus  0.50%, (c) the LIBOR Market Index Rate plus 1.0% and (d) 1.0%; each change in the Base Rate shall take  effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate  or the LIBOR Market Index Rate (provided that clause (c) shall not be applicable during any period in  which LIBOR is unavailable or unascertainable).       “Base Rate Loan” means a Revolving Loan or Term Loan (or any portion thereof) bearing interest  at a rate based on the Base Rate.    “Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a  Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related Benchmark  Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has replaced such prior benchmark rate pursuant to Section 4.2.(b)(i).    “Benchmark Replacement” means, for any Available Tenor,    (a) with respect to any Benchmark Transition Event or Early Opt-in Election, the first  alternative set forth in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date:      (1) the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment;  provided, that, if the Borrower has provided a notification to the Administrative Agent in writing on or prior  to such Benchmark Replacement Date that the Borrower has a Derivatives Contract in place with respect  to any of the Loans as of the date of such notice (which such notification the Administrative Agent shall be  entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of),  then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark  Replacement pursuant to this clause (a)(1) for such Benchmark Transition Event or Early Opt-in Election,  as applicable;    (2) the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement  Adjustment;     (3) the sum of: (A) the alternate benchmark rate that has been selected by the Administrative  Agent and the Borrower as the replacement for the then-current Benchmark for the applicable  Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement  benchmark 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 benchmark rate as a replacement for  the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the  related Benchmark Replacement Adjustment; or    (b) with respect to any Term SOFR Transition Event, the sum of (i) Term SOFR and (ii) the  related Benchmark Replacement Adjustment;    provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR is not  administratively feasible for the Administrative Agent, then Term SOFR will be deemed unable to be  determined for purposes of this definition and (ii) in the case of clause (a)(1) or clause (b) of this definition,  the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service  





 






  - 6 -  LEGAL02/40527467v10  that publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion. If the Benchmark Replacement as determined pursuant to clause (a)(1), (a)(2) or (a)(3) or clause  (b) of this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the  Floor for the purposes of this Agreement and the other Loan Documents.    “Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and  Available Tenor for any setting of such Unadjusted Benchmark Replacement:     (1) for purposes of clauses (a)(1) and (a)(2) of the definition of “Benchmark Replacement,”  the first alternative set forth in the order below that can be determined by the Administrative Agent:    (a) the spread adjustment, or method for calculating or determining such spread  adjustment, (which may be a positive or negative value or zero) as of the Reference Time such  Benchmark Replacement is first set for such Interest Period that has been selected or recommended  by the Relevant Governmental Body for the replacement of such Available Tenor of such  Benchmark with the applicable Unadjusted Benchmark Replacement;    (b)    the spread adjustment (which may be a positive or negative value or zero) as of the  Reference Time such Benchmark Replacement is first set for such Interest Period that would apply  to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective  upon an index cessation event with respect to such Available Tenor of such Benchmark;     (2) for purposes of clause (a)(3) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due  consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with  the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable  Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a  spread adjustment, or method for calculating or determining such spread adjustment, for the replacement  of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for  Dollar-denominated syndicated credit facilities; and    (3) for purposes of clause (b) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest  Period that has been selected or recommended by the Relevant Governmental Body for the replacement of  such Available Tenor of USD LIBOR with a SOFR-based rate;    provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as selected  by the Administrative Agent in its reasonable discretion and (y) if the then-current Benchmark is a term  rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date  and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance  with Section 4.2.(b)(i) will not be a term rate, the Available Tenor of such Benchmark for purposes of this  definition of “Benchmark Replacement Adjustment” shall be deemed to be, with respect to each Unadjusted  Benchmark Replacement having a payment period for interest calculated with reference thereto, the  Available Tenor that has approximately the same length (disregarding business day adjustments) as such  payment period.    





 






  - 7 -  LEGAL02/40527467v10  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of  determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion  or continuation notices, length of lookback periods, the applicability of breakage provisions, and other  technical, administrative or operational matters) that the Administrative Agent decides may be appropriate  to reflect the adoption and implementation of such Benchmark Replacement and to permit the  administration thereof by the Administrative Agent in a manner substantially consistent with market  practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not  administratively feasible or if the Administrative Agent determines that no market practice for the  administration of such Benchmark Replacement exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement and the other Loan Documents).     “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark:    (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later  of (a) the date of the public statement or publication of information referenced therein and (b) the date on  which the administrator of such Benchmark (or the published component used in the calculation thereof)  permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component  thereof);    (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the  public statement or publication of information referenced therein;    (3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the  Administrative Agent has provided the Term SOFR Notice to the Lenders and the Borrower pursuant to  Section 4.2.(b)(i)(B); or    (4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice  of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not  received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is  provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising  the Requisite Lenders.    For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the  same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark  Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and  (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2)  with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with  respect to all then-current Available Tenors of such Benchmark (or the published component used in the  calculation thereof).    “Benchmark Transition Event” means the occurrence of one or more of the following events  with respect to the then-current Benchmark:    (1) a public statement or publication of information by or on behalf of the administrator of  such Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof), permanently or indefinitely, provided that, at the time of such statement or publication,  





 






  - 8 -  LEGAL02/40527467v10  there is no successor administrator that will continue to provide any Available Tenor of such Benchmark  (or such component thereof);    (2) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof), the FRB,  the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for  such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for  such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority  over the administrator for such Benchmark (or such component), which states that the administrator of such  Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such  Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide any Available  Tenor of such Benchmark (or such component thereof); or    (3) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof) announcing  that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.    For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect  to any Benchmark if a public statement or publication of information set forth above has occurred with  respect to each then-current Available Tenor of such Benchmark (or the published component used in the  calculation thereof).    “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a  Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time,  no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under  any Loan Document in accordance with Section 4.2.(b) and (y) ending at the time that a Benchmark  Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan  Document in accordance with Section 4.2.(b).    “Beneficial Ownership Certification” means a certification regarding beneficial ownership as  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 CFR § 1010.230.     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section  3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise  contributed to by any member of the ERISA Group.     “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted  in accordance with, 12 U.S.C. 1841(k)) of such party.     “Borrower” has the meaning set forth in the introductory paragraph hereof and shall include the  Borrower’s successors and permitted assigns.     “Borrower Information” has the meaning given that term in Section 2.5.(c).     “Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day  (other than a Saturday, Sunday or legal holiday) on which banks in San Francisco, California and New  York, New York, are open for the conduct of their commercial banking business, and (b) with respect to all  notices and determinations in connection with, and payments of principal and interest on, any LIBOR Loan,  





 






  - 9 -  LEGAL02/40527467v10  or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a  Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar  deposits in the London interbank market.  Unless specifically referenced in this Agreement as a Business  Day, all references to “days” shall be to calendar days.     “Capital Lease,” as applied to any Person, means any lease of any property (whether real, personal  or mixed) by that Person as lessee which, in conformity with GAAP, is or should be accounted for as a  capital lease on the balance sheet of that Person.     “Capital Reserves” means, for any period and with respect to any manufactured home, marina or  recreational vehicle site which is then leased on an annual basis, an amount equal to (a) $50, times (b) the  number of days in such period, divided by (c) 365.  If the term Capital Reserves is used without reference  to any specific Property, then it shall be determined on an aggregate basis with respect to all manufactured  home, marina and recreational vehicle sites then leased on an annual basis and the applicable Ownership  Shares of all such manufactured home, marina and recreational vehicle of all Unconsolidated Affiliates.     “Capitalization Rate” means six percent (6.00%).       “Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent,  for the benefit of the Issuing Banks or the Revolving Lenders, as collateral for Letter of Credit Liabilities  or obligations of Revolving Lenders to fund participations in respect of Letter of Credit Liabilities, cash or  deposit account balances or, if the Administrative Agent and an Issuing Bank shall agree in their sole  discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory  to the Administrative Agent and such Issuing Bank.  “Cash Collateral” shall have a meaning correlative to  the foregoing and shall include the proceeds of such cash collateral and other credit support.     “Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed  by the federal government of the United States of America or issued by an agency thereof and backed by  the full faith and credit of the United States of America, in each case maturing within 1 year after the date  of acquisition thereof; (b) marketable direct obligations issued by any state of the United States of America  or any political subdivision of any such state or any public instrumentality thereof maturing within 90 days  after the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings  obtainable from any two nationally recognized rating services reasonably acceptable to the Administrative  Agent; (c) domestic corporate bonds, other than domestic corporate bonds issued by the Parent or any of  its Affiliates, maturing no more than 2 years after the date of acquisition thereof and, at the time of  acquisition, having a rating of at least A or the equivalent from two nationally recognized rating services  reasonably acceptable to the Administrative Agent; (d) variable-rate domestic corporate notes or medium  term corporate notes, other than notes issued by the Parent or any of its Affiliates, maturing or resetting no  more than 1 year after the date of acquisition thereof and having a rating of at least AA or the equivalent  from two nationally recognized rating services reasonably acceptable to the Administrative Agent;  (e) commercial paper (foreign and domestic) or master notes, other than commercial paper or master notes  issued by the Parent or any of its Affiliates, and, at the time of acquisition, having a long-term rating of at  least A or the equivalent from a nationally recognized rating service reasonably acceptable to the  Administrative Agent and having a short-term rating of at least A-1 and P-1 from S&P and Moody’s,  respectively (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then the highest  rating from such other nationally recognized rating services reasonably acceptable to the Administrative  Agent); (f) domestic and Eurodollar certificates of deposit or domestic time deposits or Eurotime deposits  or bankers’ acceptances (foreign or domestic) that are issued by a bank (i) which has, at the time of  acquisition, a long-term rating of at least A or the equivalent from a nationally recognized rating service  reasonably acceptable to the Administrative Agent and (ii) if a domestic bank, which is a member of the  Federal Deposit Insurance Corporation; and (g) overnight securities repurchase agreements, or reverse  





 






  - 10 -  LEGAL02/40527467v10  repurchase agreements secured by any of the foregoing types of securities or debt instruments, provided  that the collateral supporting such repurchase agreements shall have a value not less than 101% of the  principal amount of the repurchase agreement plus accrued interest.     “Class” (a)  when used with respect to a Loan, refers to whether such Loan is a Revolving Loan or  a Term Loan and (b) when used with respect to a Lender, refers to whether such Lender has a Loan or  Commitment with respect to a particular Class of Loans or Commitments.     “Commitment” means a Revolving Commitment.     “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).     “Competitor” means any Person (a) who is a bona fide direct competitor with the Parent, the  Borrower or any Subsidiary of the Parent or the Borrower whose primary business is (i) the business of  owning, operating, managing and developing Designated Use Properties and the provision of services  incidental thereto, (ii) the brokerage, purchase and sale of manufactured home units, and (iii) other business  activities reasonably incidental to the foregoing and (b) who either (x) has been designated by the Borrower  as a “Competitor” by written notice to the Administrative Agent (which such notice shall specify such  Person by exact legal name) and the Lenders (including by posting such notice to IntraLinks, SyndTrak or  other similar information transmission systems) not less than ten (10) Business Days prior to such date or  (y) is an Affiliate of such properly designated Competitor if and to the extent that such Affiliate is  reasonably identifiable as an Affiliate of such Competitor on the basis of its name; provided that any bona  fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing  in commercial loans and similar extensions of credit in the ordinary course of business which is managed,  sponsored or advised by any Person Controlling, Controlled by or under common Control with such  Competitor or its Controlling owner and for which no personnel involved with the competitive activities of  such Competitor or Controlling owner (i) makes any investment decisions for such debt fund or (ii) has  access to any confidential information (other than publicly available information) relating to the Parent, the  Borrower and its Subsidiaries shall be deemed not to be a Competitor of the Parent, the Borrower or any of  its Subsidiaries.     “Compliance Certificate” has the meaning given that term in Section 8.3.      “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.     “Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan  from one Interest Period to another Interest Period pursuant to Section 2.9.     “Contractual Obligation,” as applied to any Person, means any provision of any Securities issued  by that Person or any indenture, mortgage, deed of trust, lease, contract, undertaking, document or  instrument to which that Person is a party or by which it or any of its properties is bound, or to which it or  any of its properties is subject (including without limitation any restrictive covenant affecting such Person  or any of its properties).     “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.     “Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type  into a Loan of another Type pursuant to Section 2.10.  





 






  - 11 -  LEGAL02/40527467v10    “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor  (including overnight) or an interest payment period having approximately the same length (disregarding  business day adjustment) as such Available Tenor.     “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).     “Credit Event” means either of the following: (a) the making (or deemed making) of any Loan  and (b) the issuance of a Letter of Credit or the amendment of a Letter of Credit that extends the maturity,  or increases the Stated Amount, of such Letter of Credit.    “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will  include a lookback) being established by the Administrative Agent in accordance with the conventions for  this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such  convention is not administratively feasible for the Administrative Agent, then the Administrative Agent  may establish another convention in its reasonable discretion.     “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America  or other applicable jurisdictions from time to time in effect.     “Default” means any of the events specified in Section 10.1., whether or not there has been satisfied  any requirement for the giving of notice, the lapse of time, or both, in each case, as set forth in such Section.     “Defaulting Lender” means, subject to Section 3.9.(f), any Lender that (a) has failed to (i) fund all  or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded  hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such  failure is the result of such Lender’s determination that one or more conditions precedent to funding (each  of which conditions precedent, together with any applicable default, shall be specifically identified in such  writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, or any other  Lender any other amount required to be paid by it hereunder (including in the case of a Revolving Lender,  in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has  notified the Borrower, the Administrative Agent, any Issuing Bank 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) in the case of a Revolving Lender, has failed, within 3 Business Days  after written request by the Administrative Agent or the Borrower, to confirm in writing to the  Administrative Agent and the Borrower that it will comply with its prospective funding obligations  hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon  receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a  direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief  Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the  benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets,  including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting  





 






  - 12 -  LEGAL02/40527467v10  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 of America or from the enforcement of judgments or writs of attachment on its assets or  permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any  contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a  Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to  Section 3.9.(f)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank  and each Lender.    “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.     “Derivatives Contract” means a “swap agreement” as defined in Section 101 the Bankruptcy  Code.       “Derivatives Support Document” means (a) any Credit Support Annex comprising part of (and  as defined in) any Specified Derivatives Contract, and (b) any document or agreement pursuant to which  cash, deposit accounts, securities accounts or similar financial asset collateral are pledged to or made  available for set-off by, a Specified Derivatives Provider, including any banker’s lien or similar right,  securing or supporting Specified Derivatives Obligation.     “Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,  after taking into account the effect of any legally enforceable netting agreement or provision relating  thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out,  the termination amount or value determined in accordance therewith, and (b) for any date prior to the date  such Derivatives Contracts have been terminated or closed out, the then-current mark-to-market value for  such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates  provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent,  any Lender, any Specified Derivatives Provider or any Affiliate of any of them).     “Designated Use Property” means a property owned and operated primarily (a) for the purpose of  leasing sites to individuals on which such individuals place manufactured homes or recreational vehicles  for the purpose of occupying such manufactured homes or recreational vehicles, (b) as a daily stay  campground, membership interest campground or park model community, (c) for the purpose of renting  cabins, manufactured homes or recreational vehicles on such property to individuals or (d) for business  purposes customarily associated with a property that is or is a part of a marina.     “Designated Use Property Ownership Interests” means partnership, joint venture, membership  or other Equity Interests issued by any Person engaged primarily in the business of developing, owning,  and managing Designated Use Properties.     “Development Activity” means construction in process, that is being performed by or at the  direction of the Borrower, any Subsidiary or any Unconsolidated Affiliate, at any Designated Use Property  that will be owned and operated by the Borrower, any Subsidiary or any Unconsolidated Affiliate upon  completion of construction, including construction in process at Designated Use Properties not owned by  the Borrower, any Subsidiary or any Unconsolidated Affiliate but which the Borrower, any Subsidiary or  any Unconsolidated Affiliate has the contractual obligation to purchase. A Property shall cease to be  included as “Development Activity” on the earliest of (a) the date which is 180 days following the date of  





 






  - 13 -  LEGAL02/40527467v10  substantial completion of construction, (b) the date which is 18 months following the first date that such  Property first constituted “Development Activity” and (c) the date following commencement of  construction on which the Occupancy Rate first equals or exceeds 85%.  “Development Activity” shall not  include construction in process for the purpose of expanding, altering, maintaining or refurbishing  Designated Use Properties owned by the Borrower, any Subsidiary or any Unconsolidated Affiliate.     “Disbursement Instruction Agreement” means an agreement substantially in the form of  Exhibit I to be executed and delivered by the Borrower pursuant to Section 5.1.(a), as the same may be  amended, restated or modified from time to time with the prior written approval of the Administrative  Agent.     “Dollars” or “$” means the lawful currency of the United States of America.    “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:    (1) a notification by the Administrative Agent to (or the request by the Borrower to the  Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding  Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as  originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR)  as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly  available for review), and    (2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from  USD LIBOR and the provision by the Administrative Agent of written notice of such election to the  Lenders.     “EBITDA” means, for any period and without duplication (a) Net Income for such period, plus  (b) depreciation and amortization expense and other non-cash items deducted in the calculation of Net  Income for such period, plus (c) Interest Expense deducted in the calculation of Net Income for such period,  plus (d) Income Taxes deducted in the calculation of Net Income for such period, minus (e) the gains (and  plus the charges) from extraordinary or unusual items or asset sales or write-ups (or non-cash write-downs)  or forgiveness of indebtedness included in the calculation of Net Income, for such period, minus (f) earnings  of Subsidiaries for such period distributed to third parties, plus (g) the amount of deferred revenues less  deferred expenses relating to membership sales by the Parent and its Subsidiaries during such period  deducted in the calculation of Net Income for such period, minus (h) interest income for such period from  Mezzanine Debt Investments, plus (i) the Parent’s Ownership Share of EBITDA of its Unconsolidated  Affiliates for such period.    “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.  





 






  - 14 -  LEGAL02/40527467v10     “Effective Date” means the later of (a) the Agreement Date and (b) the date on which all of the  conditions precedent set forth in Section 5.1. shall have been fulfilled or waived by all of the Lenders.     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and  (d) any other Person (other than a natural person (or holding company, investment vehicle or trust for, or  owned and operated for the primary benefit of a natural person)) approved by the Administrative Agent  (such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing,  “Eligible Assignee” shall not include any Person specified in clause (v) or (vi) of Section 12.5.(b).       “Environmental Laws” means any Applicable Law relating to environmental protection or the  manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without  limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33  U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery  Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act,  42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the  Environmental Protection Agency, any applicable rule of common law and any judicial interpretation  thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable  state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the  environment.     “Equity Interest” means, with respect to any Person, any share of capital stock of (or other  ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other  acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such  Person whether or not certificated, any security convertible into or exchangeable for any share of capital  stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase  or other acquisition from such Person of such shares (or such other interests), and any other ownership or  profit interest in such Person (including, without limitation, partnership, member or trust interests therein),  whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is  authorized or otherwise existing on any date of determination.     “Equity Issuance” means any issuance or sale by a Person of any Equity Interest in such Person  and shall in any event include the issuance of any Equity Interest upon the conversion or exchange of any  security constituting Indebtedness that is convertible or exchangeable, or is being converted or exchanged,  for Equity Interests.     “ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to  time.     “ERISA Event” means, with respect to the ERISA Group, (a) any “reportable event” as defined in  Section 4043 of ERISA with respect to a Plan (other than an event for which the 30-day notice period is  waived); (b) the withdrawal of a member of the ERISA Group from a Plan subject to Section 4063 of  ERISA during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of  ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA;  (c) the incurrence by a member of the ERISA Group of any liability with respect to the withdrawal or partial  withdrawal from any Multiemployer Plan; (d) the incurrence by any member of the ERISA Group of any  liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the  institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC; (f) the failure by any  member of the ERISA Group to make when due required contributions to a Multiemployer Plan or Plan  unless such failure is cured within 30 days or the filing pursuant to Section 412(c) of the Internal Revenue  Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard; (g) any  





 






  - 15 -  LEGAL02/40527467v10  other event or condition that might reasonably be expected to constitute grounds under Section 4042 of  ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer  Plan or the imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the receipt by any member  of the ERISA Group of any notice or the  receipt by any Multiemployer Plan from any member of the  ERISA Group of any notice, concerning the imposition of Withdrawal Liability or a determination that a  Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245 of ERISA), in  reorganization (within the meaning of Section 4241 of ERISA), or in “critical” status (within the meaning  of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i)  the imposition of any liability  under Title IV of ERISA, other  than for PBGC premiums due but not delinquent under Section 4007 of  ERISA, upon any member of the ERISA Group or the imposition of any Lien in favor of the PBGC under  Title IV of ERISA; or (j) a determination that a Plan is, or is reasonably expected to be, in “at risk” status  (within the meaning of Section 430 of the Internal Revenue Code or Section 303 of ERISA).     “ERISA Group” means the Parent, the Borrower, any Subsidiary and all members of a controlled  group of corporations and all trades or businesses (whether or not incorporated) under common control,  which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of  the Internal Revenue Code.    “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.     “Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such  day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for  determining the maximum reserve requirement (including, without limitation, any basic, supplemental or  emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member  bank of the Federal Reserve System in New York City.    “Event of Default” means any of the events specified in Section 10.1., provided that any  requirement for notice or lapse of time (including the expiration of any applicable cure period) or any other  condition has been satisfied, in each case, as specified in such Section.     “Excluded Subsidiary” means any Subsidiary (a) holding title to assets that are or are to become  collateral for any Non-Recourse Indebtedness of such Subsidiary and (b) that is prohibited from  Guarantying the Indebtedness of any other Person pursuant to (i) any document, instrument, or agreement  evidencing such Non-Recourse Indebtedness or (ii) a provision of such Subsidiary’s organizational  documents which provision was included in such Subsidiary’s organizational documents as a condition to  the extension of such Non-Recourse Indebtedness.     “Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and  to the extent that, all or a portion of the liability of such Loan Party for or the Guarantee of such Loan Party  of, or the grant by such Loan Party of a Lien 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 Loan Party’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 Loan Party or the grant of such Lien 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 Loan Party, including under Section 31 of the 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 Lien is or  becomes illegal for the reasons identified in the immediately preceding sentence of this definition.  





 






  - 16 -  LEGAL02/40527467v10     “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or  required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by  net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as  a result of such Recipient being organized under the laws of, or having its principal office or, in the case of  any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political  subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal  withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an  applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which  (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by the Borrower under Section 4.6.) or (ii) such Lender changes its lending office, except in each  case to the extent that, pursuant to Section 3.10., amounts with respect to such Taxes were payable either  to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender  immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply  with Section 3.10.(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.     “Existing Credit Agreement” has the meaning given such term in the first “WHEREAS” clause  of this Agreement.     “Existing Term Loan” means the term loan made pursuant to that certain Term Loan Agreement  dated as of February 5, 2021 by and among the Parent, the Borrower, the financial institutions party thereto  and Wells Fargo Bank, National Association, as administrative agent.      “Extended Letter of Credit” has the meaning given that term in Section 2.3.(b).    “Fair Market Value” means, (a) with respect to a security listed on a national securities exchange  or the NASDAQ National Market, the price of such security as reported on such exchange or market by  any widely recognized reporting method customarily relied upon by financial institutions and (b) with  respect to any other property, the price which could be negotiated in an arm’s-length free market transaction,  for cash, between a willing seller and a willing buyer.     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.     “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with) and any current or future regulations or official interpretations thereof and any  agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or  regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or  convention among Governmental Authorities entered into in connection with the implementation of the  foregoing.     “FCA” has the meaning given that term in Section 1.4.    “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each  day during such period to the weighted average of the rates on overnight Federal funds transactions with  members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day,  for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is  not so published for any day which is a Business Day, the average of the quotations for such day on such  transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing  





 






  - 17 -  LEGAL02/40527467v10  selected by the Administrative Agent.  If the Federal Funds Rate determined as provided above would be  less than zero, the Federal Funds Rate shall be deemed to be zero.     “Fee Letter” means (i) that certain fee letter dated as of March 18, 2021, by and among the Parent,  the Borrower, Bank of America, N.A. and Wells Fargo Bank, National Association and (ii) each other fee  letter entered into in connection with this Agreement by and between the Parent, the Borrower and a  Documentation Agent in its capacity as a Joint Lead Arranger.     “Fees” means, without duplication, the fees and commissions provided for or referred to in  Section 3.5. and any other fees payable by the Borrower hereunder, under any other Loan Document or  under the Fee Letter.     “Fixed Charges” means, with respect to a Person and for a given period, the sum of (a) the Interest  Expense of such Person for such period, plus (b) the aggregate of all regularly scheduled principal payments  on Indebtedness made by such Person during such period (excluding balloon, bullet or similar payments of  principal that repays such Indebtedness in full), plus (c) the aggregate of all Preferred Dividends paid in  cash by such Person during such period.  The Parent’s Ownership Share of the Fixed Charges of its  Unconsolidated Affiliates will be included in the calculation of “Fixed Charges”.    “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the  execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with  respect to USD LIBOR.    “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.       “FRB” means the Board of Governors of the Federal Reserve System of the United States.       “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender,  with respect to the Issuing Banks, such Defaulting Lender’s Revolving Commitment Percentage of the  outstanding Letter of Credit Liabilities other than Letter of Credit Liabilities as to which such Defaulting  Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized  in accordance with the terms hereof.     “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.      “Funds from Operations” means “Funds from Operations” as defined in, and calculated consistent  with, the White Paper on Funds from Operations dated April 2002 issued by the National Association of  Real Estate Investment Trusts, Inc., but without giving effect to any supplements, amendments or other  modifications promulgated after the Agreement Date.     “GAAP” means generally accepted accounting principles in the United States of America set forth  in the opinions and pronouncements of the Accounting Principles Board of the American Institute of  Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards  Codification”) or in such other statements by such other entity as may be approved by a significant segment  of the accounting profession in the United States of America, which are applicable to the circumstances as  of the date of determination.  





 






  - 18 -  LEGAL02/40527467v10     “Governmental Approvals” means all authorizations, consents, approvals, licenses and  exemptions of, registrations and filings with, and reports to, all Governmental Authorities.     “Governmental Authority” means any national, state or local government (whether domestic or  foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial,  administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,  department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the  Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority)  or any arbitrator with authority to bind a party at law.     “Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future  payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other  than any Excluded Swap Obligation).     “Guarantor” means the Parent.     “Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any obligation  means and includes:  (a) a guaranty (other than by endorsement of negotiable instruments for collection in  the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation,  or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty,  the practical effect of which is to assure the payment or performance (or payment of damages in the event  of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or  obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services  primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or  performance (or payment of damages in the event of nonperformance) of or on account of any part or all of  such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in  any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn  down by beneficiaries of letters of credit (including Letters of Credit), or (v) the supplying of funds to or  investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any  obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such  obligation.  As the context requires, “Guaranty” shall also mean the guaranty executed and delivered  pursuant to Section 5.1. and substantially in the form of Exhibit B.     “Hazardous Materials” means all or any of the following: (a) substances that are defined or listed  in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”,  “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define,  list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,  carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum  derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and  other wastes associated with the exploration, development or production of crude oil, natural gas or  geothermal resources; (c) any flammable substances or explosive substances or any radioactive materials;  (d) asbestos in any form; and (e) electrical equipment which contains any oil or dielectric fluid containing  levels of polychlorinated biphenyls in excess of fifty parts per million.     “IBA” has the meaning given that term in Section 1.4.     “Income Taxes” means all federal, state, local and foreign income and gross receipts taxes.     “Indebtedness,” as applied to any Person (and without duplication), means all of the following,  whether or not considered indebtedness or liabilities under GAAP: (a) all indebtedness, obligations or other  





 






  - 19 -  LEGAL02/40527467v10  liabilities (whether secured, unsecured, recourse, non-recourse, direct, senior or subordinate) of such Person  for borrowed money; (b) all indebtedness, obligations or other liabilities of such Person evidenced by  Securities or other similar instruments; (c) all reimbursement obligations and other liabilities (contingent  or otherwise) of such Person with respect to letters of credit or banker’s acceptances issued for such  Person’s account or other similar instruments (including bank guaranties, surety bonds, comfort letters,  keep-well agreement and capital maintenance agreements) for which a contingent liability exists, in each  case whether or not the same have been presented for payment; (d) net obligations under any Derivatives  Contract (which shall be deemed to have an amount equal to the Derivatives Termination Value thereof at  such time but in no event shall be less than zero); (e) all obligations of such Person to pay the deferred  purchase price of property or services; (f) all obligations of such Person in respect of Capital Leases and all  Synthetic Lease Obligations and Synthetic Debt of such Person; (g) all Accommodation Obligations of such  Person; (h) all indebtedness, obligations or other liabilities of such Person or others secured by a Lien on  any asset of such Person, whether or not such indebtedness, obligations or liabilities are assumed by, or are  a personal liability of, such Person; and (i) ERISA obligations of such Person currently due and payable.   For purposes of this definition, (x) the amount of any Capital Lease or Synthetic Lease Obligation as of any  date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date and  (y) contingent obligations of a Person in respect of (I) Non-Recourse Exceptions or (II) in respect of  guarantees of completion or obligations to pay carry expense which, in each case with respect to this clause  (II), contain customary terms, shall not shall not give rise to Indebtedness unless and until such obligations  are no longer contingent and a claim for payment has been made.     “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 the Borrower or any other Loan Party under any  Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other  Taxes.     “Intellectual Property” has the meaning given that term in Section 6.1.(q).     “Interest Expense” means, for any period and without duplication, total interest expense, whether  paid, accrued or capitalized (including letter of credit fees, the interest component of Capital Leases and  amortization of deferred financing costs, but excluding interest expense covered by an interest reserve  established under a loan facility) of the Parent, on a consolidated basis and determined in accordance with  GAAP.     “Interest Period” means, with respect to each LIBOR Loan, each period commencing on the date  such LIBOR Loan is made, or in the case of the Continuation of a LIBOR Loan the last day of the preceding  Interest Period for such Loan, and ending on the numerically corresponding day in the first, third or sixth  calendar month thereafter, as the Borrower may select in a Notice of Revolving Borrowing, the Notice of  Term Borrowing, a Notice of Continuation or a Notice of Conversion, as the case may be, except that each  Interest Period that commences on the last Business Day of a calendar month (or on any day for which there  is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last  Business Day of the appropriate subsequent calendar month.  Notwithstanding the foregoing: (a) if any  Interest Period for a Class of Loans would otherwise end after the Termination Date for such Class of  Loans, such Interest Period shall end on the Termination Date for such Class of Loans and (b) each Interest  Period that would otherwise end on a day which is not a Business Day shall end on the immediately  following Business Day (or, if such immediately following Business Day falls in the next calendar month,  on the immediately preceding Business Day).       “Internal Revenue Code” means the Internal Revenue Code of 1986.    





 






  - 20 -  LEGAL02/40527467v10   “Investment” means, with respect to any Person, any acquisition or investment (whether or not of  a controlling interest) by such Person, by means of any of the following: (a) the purchase or other  acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital  contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of,  another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase  or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute  the business or a division or operating unit of another Person.  Any irrevocable commitment to make an  Investment in any other Person, as well as any option of another Person to require an Investment in such  Person, shall constitute an Investment.  Except as expressly provided otherwise, for purposes of determining  compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the  amount actually invested, without adjustment for subsequent increases or decreases in the value of such  Investment.    “ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or  any successor definitional booklet for interest rate derivatives published from time to time by the  International Swaps and Derivatives Association, Inc. or such successor thereto.    “ISP98” means the International Standby Practices (1998 Revision, effective January 1, 1999),  International Chamber of Commerce Publication No. 590.     “Issuing Banks” means each of Wells Fargo and Bank of America, N.A., each in its capacity as an  issuer of Letters of Credit pursuant to Section 2.3.     “L/C Commitment Amount” has the meaning given to that term in Section 2.3.(a).     “L/C Disbursement” has the meaning given to that term in Section 3.9.(b).     “Lender” means each financial institution from time to time party hereto as a “Lender;” together  with its respective successors and permitted assigns.  Except as otherwise expressly provided herein,  “Lender” shall exclude any Lender (or its Affiliates) in its capacity as a Specified Derivatives Provider.     “Lender Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Banks,  the Specified Derivatives Providers, each co-agent or sub-agent appointed by the Administrative Agent  from time to time pursuant to Section 11.5., any other holder from time to time of any of any Obligations  and, in each case, their respective successors and permitted assigns.     “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender  specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption,  or such other office of such Lender as such Lender may notify the Administrative Agent in writing from  time to time.     “Letter of Credit” has the meaning given that term in Section 2.3.(a).     “Letter of Credit Collateral Account” means a special deposit account maintained by the  Administrative Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Revolving  Lenders, and under the sole dominion and control of the Administrative Agent.     “Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any  application therefor, any certificate or other document presented in connection with a drawing under such  Letter of Credit and any other agreement, instrument or other document governing or providing for (a) the  





 






  - 21 -  LEGAL02/40527467v10  rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any  collateral security for any of such obligations.     “Letter of Credit Liabilities” means, without duplication, at any time and in respect of any Letter  of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate unpaid principal  amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all  drawings made under such Letter of Credit.  For purposes of this Agreement, a Revolving Lender (other  than the Revolving Lender then acting as Issuing Bank with respect to the related Letter of Credit) shall be  deemed to hold a Letter of Credit Liability in an amount equal to its participation interest under Section  2.3. in the related Letter of Credit, and the Revolving Lender then acting as Issuing Bank with respect to  such related letter of Credit shall be deemed to hold a Letter of Credit Liability in an amount equal to its  retained interest in the related Letter of Credit after giving effect to the acquisition by the Revolving Lenders  (other than the Revolving Lender then acting as Issuing Bank with respect to such related Letter of Credit)  of their participation interests under such Section. For all purposes of this Agreement, if on any date of  determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by  reason of the operation of Rule 3.14 of ISP98, such Letter of Credit shall be deemed to be “outstanding” in  the amount so remaining available to be drawn.     “Level” has the meaning given that term in the definition of the term “Applicable Margin.”     “LIBOR” means, subject to the implementation of a Benchmark Replacement in accordance with  Section 4.2.(b), the rate of interest obtained by dividing (i) the rate of interest per annum determined on the  basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as published by  the ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor  quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2)  Business Days prior to the first day of the applicable Interest Period by (ii) a percentage equal to 1 minus  the Eurodollar Reserve Percentage.  If, for any reason, the rate referred to in the preceding clause (i) is not  so published, then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average  of the rate per annum at which deposits in Dollars would be offered by first class banks in the London  interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business  Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period.  Each  calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent  manifest error.  Notwithstanding the foregoing, (x) in no event shall LIBOR (including any Benchmark  Replacement with respect thereto) be less than 0% and (y) unless otherwise specified in any amendment to  this Agreement entered into in accordance with Section 4.2.(b), in the event that a Benchmark Replacement  with respect to LIBOR is implemented then all references herein to LIBOR shall be deemed references to  such Benchmark Replacement.      “LIBOR Loan” means a Revolving Loan or Term Loan (or portion thereof) (other than a Base  Rate Loan) bearing interest at a rate based on LIBOR and, for the avoidance of doubt, except as otherwise  expressly provided, shall include Same-Day Borrowings bearing interest at the LIBOR Market Index Rate.     “LIBOR Market Index Rate” means, for any day, LIBOR as of that day that would be applicable  for a LIBOR Loan having a one-month Interest Period determined at approximately 10:00 a.m. Central time  for such day (rather than 11:00 a.m. (London time) two Business Days prior to the first day of such Interest  Period as otherwise provided in the definition of “LIBOR”), or if such day is not a Business Day, the  immediately preceding Business Day.  The LIBOR Market Index Rate shall be determined on a daily basis.     “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit  arrangement, security interest, encumbrance (including, but not limited to, easements, rights-of-way,  zoning restrictions and the like), lien (statutory or other), preference, priority or other security agreement  





 






  - 22 -  LEGAL02/40527467v10  of any kind or nature whatsoever, including without limitation any conditional sale or other title retention  agreement, the interest of a lessor under a Capital Lease, any financing lease having substantially the same  economic effect as any of the foregoing, and the filing of any financing statement (other than a financing  statement (a) filed by a “true” lessor pursuant to Section 9-408 of the Uniform Commercial Code or (b) the  filing of which was not authorized pursuant to Section 9-509 of the Uniform Commercial Code) naming  the owner of the asset to which such Lien relates as debtor, under the Uniform Commercial Code or other  comparable law of any jurisdiction.     “Loan” means a Revolving Loan or a Term Loan.     “Loan Document” means this Agreement, each Note, the Guaranty, each Letter of Credit  Document and each other document or instrument now or hereafter executed and delivered by a Loan Party  in connection with, pursuant to or relating to this Agreement (other than the Fee Letter and any Specified  Derivatives Contract).     “Loan Party” means each of the Borrower, the Parent and each other Person who guarantees all  or a portion of the Obligations and/or who pledges any collateral to secure all or a portion of the Obligations.     “Manufactured Home Inventory Value” means with respect to any Person, as of any date of  determination, the lesser of (a) the total cost to such Person of all manufactured home units, which have  never been occupied (other than for short periods in the ordinary course of such Person’s customary sales  practices), then owned by such Person that were acquired new from the manufacturers of such units, or  from Persons who acquired such units new from such manufacturers, within the one-year period  immediately preceding the date of determination and (b) $35,000,000.     “Material Adverse Effect” means (a) a materially adverse change in, or a materially adverse effect  on the operations, business, assets, properties, liabilities (actual or contingent), or financial condition of the  Parent, the Borrower and the other Subsidiaries taken as a whole; (b) a material impairment of (i) the rights  and remedies of the Lenders, the Issuing Banks and the Administrative Agent under any of the Loan  Documents or (ii) the ability of the Parent, the Borrower and the other Loan Parties, taken as a whole, to  perform their obligations under the Loan Documents to which such Loan Party is a party; or (c) a materially  adverse effect on the validity or enforceability of any of the Loan Documents.     “Material Acquisition” means any acquisition (whether by direct purchase, merger or otherwise  and whether in one or more related transactions) by the Borrower or any Subsidiary in which the purchase  price of the assets acquired exceeds 5% of Total Asset Value.      “Mezzanine Debt Investments” mean any mezzanine or subordinated mortgage loans made by  the Borrower, any of its Subsidiaries or any of its Unconsolidated Affiliates to entities that own commercial  real estate (or to Persons holding Equity Interests in such entities), which real estate has a Fair Market Value  in excess of the aggregate amount of such mortgage loans and any senior Indebtedness secured by a Lien  on such real estate on the date when such mortgage loan was made or acquired by the Borrower, such  Subsidiary or such Unconsolidated Affiliate and which has been designated by the Parent as a “Mezzanine  Debt Investment” in its most recent Compliance Certificate; provided, however, that if any such mortgage  loans are owed by a Subsidiary or an Unconsolidated Affiliate, then the amount of Mezzanine Debt  Investments attributable to such mortgage loans shall be limited to the Parent’s Ownership Share of such  Subsidiary or Unconsolidated Affiliate, as the case may be.     “Moody’s” means Moody’s Investors Service, Inc. and its successors.    





 






  - 23 -  LEGAL02/40527467v10   “Mortgage Receivable” means a promissory note secured by a mortgage, deed of trust, deed to  secure debt or similar security instrument made by a Person owning an interest in real estate granting a Lien  on such interest in real estate as security for the payment of Indebtedness of which the Parent, the Borrower  or another Subsidiary is the holder and retains the rights of collection of all payments thereunder.     “Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section  4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation  to make contributions or has within the preceding six plan years made contributions, including for these  purposes any Person which ceased to be a member of the ERISA Group during such six year period.     “Negative Pledge” means, with respect to a given asset, any provision of a document, instrument  or agreement (other than any Loan Document or Specified Derivatives Contract) which prohibits or  purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the  Person owning such asset or any other Person; provided, however, that an agreement that conditions a  Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such  Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or  the encumbrance of specific assets, shall not constitute a Negative Pledge.     “Net Income” means, for any period, the net income (or loss) after Income Taxes of the Parent, on  a consolidated basis, for such period calculated in conformity with GAAP; provided, however, that Net  Income shall not include the net income (or loss) of Unconsolidated Affiliates.     “Net Operating Income” means, for any Property and for a given period, the sum of the following  (without duplication and determined on a consistent basis with prior periods): (a) rents and other revenues  received in the ordinary course from such Property (including proceeds from rent loss or business  interruption insurance but excluding pre-paid rents and revenues and security deposits except, in each case,  to the extent applied in satisfaction of tenants’ obligations for rent) minus (b) all expenses paid (excluding  interest but including an appropriate accrual for property taxes and insurance) related to the ownership,  operation or maintenance of such Property, including but not limited to, property taxes, assessments and  the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing  expenses, management fees and general and administrative expenses (including an appropriate allocation  for legal, accounting, advertising, marketing, management fees and other expenses incurred in connection  with such Property, but specifically excluding general overhead expenses of the Parent or the Borrower,  any property management fees, debt service charges, income taxes, depreciation, amortization, other non- cash expenses, and any extraordinary, non-recurring expense associated with any financing, merger,  acquisition, divestiture or other capital transaction) minus (c) the greater of (i) the actual property  management fee paid during such period with respect to such Property and (ii) an imputed management fee  in an amount equal to 3% of the gross revenues for such Property for such period.     “Net Proceeds” means with respect to an Equity Issuance by a Person, the aggregate amount of all  cash and the Fair Market Value of all other property (other than securities of such Person being converted  or exchanged in connection with such Equity Issuance) received by such Person in respect of such Equity  Issuance net of investment banking fees, legal fees, accountants’ fees, underwriting discounts and  commissions and other customary fees and expenses actually incurred by such Person in connection with  such Equity Issuance.     “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all affected Lenders in accordance with the terms of  Section 12.6.(b) and (b) has been approved by the Requisite Lenders.    





 






  - 24 -  LEGAL02/40527467v10   “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.     “Non-Recourse Exceptions” means, with respect to Non-Recourse Indebtedness, exceptions for  fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities and other  circumstances customarily excluded by institutional lenders from exculpation provisions and/or included  in separate indemnification agreements in non-recourse financing of real estate.       “Non-Recourse Indebtedness” means any single loan with respect to which recourse for payment  is limited to specific assets related to a particular Property or group of Properties encumbered by a Lien  securing such Indebtedness; provided, however, that personal recourse to the Parent, the Borrower or any  Subsidiary by a holder of any such loan for (i) Non-Recourse Exceptions or (ii) guarantees of completion  or obligations to pay carry expense which, in each case with respect to this clause (ii), contain customary  terms, shall not, by themselves, prevent such loan from being characterized as Non-Recourse Indebtedness  unless and until such obligations are no longer contingent and a claim for payment has been made.     “Note” means a Revolving Note or a Term Note.     “Notice of Continuation” means a notice substantially in the form of Exhibit D (or such other  form reasonably acceptable to the Administrative Agent and containing the information required in such  Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.9. evidencing the Borrower’s  request for the Continuation of a LIBOR Loan.     “Notice of Conversion” means a notice substantially in the form of Exhibit E (or such other form  reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit)  to be delivered to the Administrative Agent pursuant to Section 2.10. evidencing the Borrower’s request  for the Conversion of a Loan from one Type to another Type.     “Notice of Revolving Borrowing” means a notice substantially in the form of Exhibit C (or such  other form reasonably acceptable to the Administrative Agent and containing the information required in  such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the  Borrower’s request for a borrowing of Revolving Loans.     “Notice of Term Borrowing” means a notice substantially in the form of Exhibit M (or such other  form reasonably acceptable to the Administrative Agent and containing the information required in such  Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.2. or Section 2.16. evidencing  the Borrower’s request for the borrowing of the Term Loans.      “Obligations” means, individually and collectively: (a) the aggregate principal balance of, and all  accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other Letter of Credit  Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and  the other Loan Parties owing to the Administrative Agent, any Issuing Bank or any Lender of every kind,  nature and description, under or in respect of this Agreement or any of the other Loan Documents, including,  without limitation, the Fees and indemnification obligations, whether direct or indirect, absolute or  contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced  by any promissory note.  For the avoidance of doubt, “Obligations” shall not include any indebtedness,  liabilities, obligations, covenants or duties in respect of Specified Derivatives Contracts.     “Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed as a  percentage, of (a) the total number of leasing sites, camp sites, rental units, boat slips or similar units at  such Property actually occupied by tenants that are not Affiliates of the Parent and paying rent at rates not  





 






  - 25 -  LEGAL02/40527467v10  materially less than rates generally prevailing at the time the applicable lease was entered into, pursuant to  binding leases as to which no monetary default as to the payment of base rent has occurred and has  continued unremedied for 60 or more days, to (b) the aggregate number of leasing sites, camp sites, rental  units or similar units at such Property.      “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.     “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 4.6.).      “Ownership Share” means, except as otherwise provided in Section 1.3.(b), with respect to any  Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person,  the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a  percentage) in such Subsidiary or Unconsolidated Affiliate or (b) subject to compliance with Section 8.4.(j),  such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary  or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of  trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture  agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.       “Parent” has the meaning set forth in the introductory paragraph hereof and shall include the  Parent’s successors and permitted assigns.     “Participant” has the meaning given that term in Section 12.5.(d).     “Participant Register” has the meaning given that term in Section 12.5.(d).     “Partnership Agreement” means the Second Amended and Restated Agreement of Limited  Partnership dated as of March 15, 1996 for the Borrower.     “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law  October 26, 2001)).     “PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.     “Permitted Liens” means, with respect to any asset or property of a Person, (a)(i) Liens securing  taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any  Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws) or (ii) the  claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or  rentals incurred in the ordinary course of business, which, if unpaid, might become a Lien on any properties  of such Person, in each case being contested in good faith by appropriate proceedings which operate to  suspend the collection thereof and for which adequate reserves have been established on the books of such  





 






  - 26 -  LEGAL02/40527467v10  Person, in accordance with GAAP; (b) Liens consisting of deposits or pledges made in connection with, or  to secure payment of, obligations under workers’ compensation, unemployment insurance or similar  Applicable Laws, the performance of bids, trade contracts and leases, statutory obligations, surety and  appeal bonds, performance bonds and other obligations of a like nature, in the case of each of the foregoing,  in each case, incurred in the ordinary course of business and not otherwise securing Indebtedness; (c) Liens  consisting of encumbrances in the nature of zoning restrictions, easements, and rights or restrictions of  record on the use of real property, which do not materially detract from the value of such property or impair  the intended use thereof in the business of such Person; (d) the rights of tenants under leases or subleases  not interfering with the ordinary conduct of business of such Person; (e) Liens in favor of the Administrative  Agent for its benefit and the benefit of the Lender Parties; (f) any option, contract or other agreement to sell  an asset provided such sale is otherwise permitted by this Agreement; and (g) Liens arising from  precautionary uniform commercial code financing statements filed under any lease permitted by this  Agreement and with respect to which no grant of security interest has been made.     “Person” means any natural person, corporation, limited partnership, general partnership, joint  stock company, limited liability company, limited liability partnership, joint venture, association, company,  trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or  any other nongovernmental entity, or any Governmental Authority.     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)  which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of  the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA  Group for employees of any member of the ERISA Group or (b) has at any time within the preceding six  years been maintained, or contributed to, by any Person which was at such time a member of the ERISA  Group for employees of any Person which was at such time a member of the ERISA Group.     “Post-Default Rate” means (a) with respect to any principal of any Loan or any Reimbursement  Obligation, the interest rate otherwise applicable to such Loan or Reimbursement Obligation plus an  additional two percent (2.0%) per annum and (b) with respect to any other Obligation, a rate per annum  equal to the Base Rate as in effect from time to time plus the Applicable Margin for Revolving Loans that  are Base Rate Loans plus two percent (2.0%).     “Preferred Dividends” means, for any period and without duplication, all Restricted Payments  paid during such period on Preferred Stock issued by the Parent or any of its Subsidiaries.  Preferred  Dividends shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other  than Equity Interest convertible into Indebtedness) payable to holders of such class of Equity Interests,  (b) paid or payable to the Parent or any of its Subsidiaries, or (c) constituting or resulting in the redemption  of Preferred Stock, other than scheduled redemptions not constituting balloon, bullet or similar redemptions  in full.     “Preferred Stock” means, with respect to any Person, shares of capital stock of, or other Equity  Interests in, such Person which are entitled to preference or priority over any other capital stock of, or other  Equity Interest in, such Person in respect of the payment of dividends or distribution of assets upon  liquidation or both.     “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to  time by the Lender then acting as 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 Lender acting as 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.  





 






  - 27 -  LEGAL02/40527467v10     “Principal Office” means the office of the Administrative Agent located at 600 South 4th St., 8th  Floor, Minneapolis, Minnesota 55415 or any other subsequent office that the Administrative Agent shall  have specified by written notice to the Borrower and the Lenders as the Principal Office.     “Pro Rata Share” means, as to each Lender, the ratio, expressed as a percentage of (a)(i) the  amount of such Lender’s Revolving Commitment plus (ii) the aggregate outstanding principal amount of  such Lender’s Term Loan, if any, to (b)(i) the aggregate amount of the Revolving Commitments of all  Lenders plus (ii) the aggregate amount of all outstanding Term Loans; provided, however, that if at the time  of determination the Revolving Commitments have terminated or been reduced to zero, the “Pro Rata  Share” of a Lender shall be the ratio, expressed as a percentage of (A) the sum of the unpaid principal  amount of all outstanding Loans and Letter of Credit Liabilities owing to such Lender as of such date to  (B) the sum of the aggregate unpaid principal amount of all outstanding Loans and Letter of Credit  Liabilities of all Lenders as of such date.  If at the time of determination the Revolving Commitments have  terminated and there are no outstanding Loans or Letter of Credit Liabilities, then the Pro Rata Shares of  the Lenders shall be determined as of the most recent date on which any Loans and/or Letters of Credit  Liabilities were outstanding.  For purposes of this definition, a Revolving Lender shall be deemed to hold  a Letter of Credit Liability to the extent such Revolving Lender has acquired a participation therein under  the terms of this Agreement and has not failed to perform its obligations in respect of such participation.     “Property” means a parcel (or group of related parcels) of real property owned or leased by the  Parent, the Borrower, any other Loan Party, any other Subsidiary or any Unconsolidated Affiliate.     “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).    “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party 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.     “Qualified Plan” means a Benefit Arrangement that is intended to be tax-qualified under  Section 401(a) of the Internal Revenue Code.    “Qualifying Ground Lease” means, as of any determination date, a ground lease containing terms  and conditions customarily required by mortgagees making a loan secured by the interest of the holder of the  leasehold estate demised pursuant to a ground lease, including without limitation, the following: (a) a remaining  term (inclusive of any unexercised extension options) of 25 years or more from such determination date; (b)  the right of the lessee to mortgage and encumber its interest in the leased property, and to amend the terms of  any such mortgage or encumbrance, in each case, without the consent of the lessor; (c) the obligation of the  lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the  part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had  a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) acceptable transferability of  the lessee’s interest under such lease, including ability to sublease; (e) acceptable limitations on the use of the  leased property; and (f) clearly determinable rental payment terms which in no event contain profit participation  rights.     “Qualifying Unencumbered Property” means (a) the Properties listed on Schedule 1.1. and (b)  any Property designated by Borrower from time to time pursuant to Section 8.8. which satisfies all of the  





 






  - 28 -  LEGAL02/40527467v10  following requirements: (i) such Property is a Designated Use Property; (ii) such Property is owned (A) in  fee simple or (B) pursuant to a Qualifying Ground Lease, in either case, entirely by the Borrower or any  Subsidiary of the Borrower; (iii) such Property is located in a state of the United States of America, in the  District of Columbia, in Canada or in Mexico; (iv) regardless of whether such Property is owned by the  Borrower or a Subsidiary of the Borrower, the Borrower has the right directly, or indirectly through a  Subsidiary, to take the following actions without the need to obtain the consent of any Person: (A) to create  Liens on such Property as security for Indebtedness of the Borrower or such Subsidiary, as applicable, and  (B) to sell, transfer or otherwise dispose of such Property; (v) neither such Property, nor if such Property is  owned by a Subsidiary of the Borrower, any of the Borrower’s direct or indirect ownership interest in such  Subsidiary, is subject to (A) any Lien other than Permitted Liens (except for Permitted Liens under clause  (f) of the definition thereof) or (B) any Negative Pledge; and (vi) such Property is free of all structural  defects, title defects, environmental conditions or other adverse matters except for defects, conditions or  matters which do not materially detract from the value of such Property or impair the intended use thereof  in the business of the applicable Qualifying Unencumbered Property Owner.  A Property (including any  Property set forth on Schedule 1.1.) shall cease to be a “Qualifying Unencumbered Property” at such time  as it fails to satisfy any of the conditions set forth in clauses (i) through (vi) of this definition.  In addition,  the Borrower may, upon at least 15 Business Days prior written notice to the Administrative Agent,  designate that any Qualifying Unencumbered Property shall no longer be considered a Qualifying  Unencumbered Property (and upon such designation, such Property shall no longer be a Qualifying  Unencumbered Property).       “Qualifying Unencumbered Property Owner” means any Subsidiary of the Parent which owns  a Qualifying Unencumbered Property.     “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as  applicable.     “Recourse Indebtedness” means, with respect to any Person, Indebtedness which is not Non- Recourse Indebtedness.     “Reference Time” with respect to any setting of the then-current Benchmark means (1) if such  Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two (2) Business Days preceding  the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the  Administrative Agent in its reasonable discretion.    “Register” has the meaning given that term in Section 12.5.(c).     “Regulatory Change” means, with respect to any Lender, any change effective after the  Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors  of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or  request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or  not having the force of law and whether or not failure to comply therewith would be unlawful) by any  Governmental Authority or monetary authority charged with the interpretation or administration thereof or  compliance by any Lender with any request or directive regarding capital adequacy or liquidity.   Notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith  and (b) 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  “Regulatory Change”, regardless of the date enacted, adopted or issued.    





 






  - 29 -  LEGAL02/40527467v10   “Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the  Borrower to reimburse an Issuing Bank for any drawing honored by such Issuing Bank under a Letter of  Credit.     “REIT” means a Person qualifying for treatment as a “real estate investment trust” under the  Internal Revenue Code.     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  shareholders, directors, officers, employees, agents and advisors of such Person and of such Person’s  Affiliates.    “Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a  committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any  successor thereto.     “Requisite Class Lenders” means, as of any date of determination, (a) in the case of Revolving  Lenders, Revolving Lenders (i) having more than 50.0% of the aggregate amount of the Revolving  Commitments or (ii) if the Revolving Commitments have terminated, holding more than 50.0% of the  principal amount of the aggregate outstanding Revolving Loans and outstanding Letter of Credit Liabilities  and (b) in the case of Term Loan Lenders, Term Loan Lenders holding more than 50.0% of the principal  amount of the aggregate outstanding Term Loans; provided that (i) in determining such percentage at any  given time, all then existing Defaulting Lenders of such Class will be disregarded and excluded, and (ii) at  all times when two or more Lenders (excluding Defaulting Lenders) of such Class are party to this  Agreement, the term “Requisite Class Lenders” shall in no event mean less than two Lenders of such Class.   For purposes of this definition, a Revolving Lender shall be deemed to hold a Letter of Credit Liability to  the extent such Lender has acquired a participation therein under the terms of this Agreement and has not  failed to perform its obligations in respect of such participation.     “Requisite Lenders” means, as of any date, (a) Lenders having more than 50.0% of the aggregate  amount of the Revolving Commitments and the principal amount of the aggregate outstanding Term Loans,  or (b) if the Revolving Commitments have been terminated or reduced to zero, Lenders holding more than  50.0% of the principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities; provided  that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be  disregarded and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders)  are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders.   For purposes of this definition, a Revolving Lender shall be deemed to hold a Letter of Credit Liability to  the extent such Lender has acquired a participation therein under the terms of this Agreement and has not  failed to perform its obligations in respect of such participation.      “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.    “Responsible Officer” means with respect to the Parent, the Borrower or any Subsidiary, the chief  executive officer, the president, the chief financial officer, any senior vice president, any executive vice  president and any vice president of the Parent, the Borrower or such Subsidiary.     “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account  of any Equity Interest of the Parent, the Borrower, or any other Subsidiary now or hereafter outstanding,  except a dividend or other distributions payable solely in shares of that class of Equity Interests to the  holders of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar  payment, purchase or other acquisition for value, direct or indirect, of any shares of any Equity Interest of  





 






  - 30 -  LEGAL02/40527467v10  the Parent, the Borrower or any other Subsidiary now or hereafter outstanding, except any redemption,  repurchase, conversion or exchange of shares of any class payable solely in common stock of such entity;  and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other  rights to acquire any Equity Interests of the Parent, the Borrower or any other Subsidiary now or hereafter  outstanding.     “Revolving Commitment” means, as to each Revolving Lender, such Lender’s obligation to make  Revolving Loans pursuant to Section 2.1., to issue (in the case of an Issuing Bank) and to participate (in the  case of the other Revolving Lenders) in Letters of Credit pursuant to Section 2.3.(i), in an amount up to,  but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s “Revolving  Commitment” or as set forth in any applicable Assignment and Assumption, or agreement executed by a  Person becoming a Revolving Lender in accordance with Section 2.16., as the same may be reduced from  time to time pursuant to Section 2.12. or increased or reduced as appropriate to reflect any assignments to  or by such Lender effected in accordance with Section 12.5.     “Revolving Commitment Percentage” means, as to each Revolving Lender, the ratio, expressed  as a percentage, of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount of  all of the Revolving Commitments; provided, however, that if at the time of determination the Revolving  Commitments have been terminated or been reduced to zero, the “Revolving Commitment Percentage” of  each Revolving Lender shall be the “Revolving Commitment Percentage” of such Lender in effect  immediately prior to such termination or reduction.      “Revolving Credit Exposure” means, as to any Revolving Lender at any time, the aggregate  principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s  participation in Letter of Credit Liabilities at such time.     “Revolving Lender” means a Lender having a Revolving Commitment, or if the Revolving  Commitments have terminated, holding any Revolving Loans.     “Revolving Loan” means a loan made by a Revolving Lender to the Borrower pursuant to  Section 2.1.(a).     “Revolving Note” means a promissory note of the Borrower substantially in the form of Exhibit G,  payable to the order of a Revolving Lender in a principal amount equal to the amount of such Revolving  Lender’s Commitment.     “Revolving Termination Date” means April 18, 2025, as such date may be extended pursuant to  Section 2.13.     “Same-Day Borrowing” means a borrowing of a Loan only for which the date of the Notice of  Revolving Borrowing and the date of the funding of such borrowing occur on the same day.      “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 Closing 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)  





 






  - 31 -  LEGAL02/40527467v10  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.     “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) the Parent, the Borrower or any of its Subsidiaries or Affiliates is located or conducts business,  (b) in which any of the proceeds of any Loan will be used, or (c) from which repayment of the Obligations  will be derived.     “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.     “Secured Debt” means Indebtedness, the payment of which is secured by a Lien on any property;  provided, however, that, except for purposes of the representation contained in the last sentence of  Section 6.1.(g), any Indebtedness that is secured only by a pledge of Equity Interests shall not be considered  to be Secured Debt.     “Securities” means any stock, partnership interests, shares, shares of beneficial interest, voting  trust certificates, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured,  convertible, subordinated or otherwise, or in general any instruments commonly known as “securities,” or  any certificates of interest, shares, or participations in temporary or interim certificates for the purchase or  acquisition of, or any right to subscribe to, purchase or acquire any of the foregoing, but shall not include  any evidence of the Obligations.     “Securities Act” means the Securities Act of 1933, together with all rules and regulations issued  thereunder.    “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight  financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s  Website on the immediately succeeding Business Day.    “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).    “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York,  currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.     “Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable  value of its assets (taken as a going concern) are each in excess of the fair valuation of its total liabilities  (including all contingent liabilities computed at the amount which, in light of all facts and circumstances  existing at such time, represents the amount that could reasonably be expected to become an actual and  matured liability); (b) such Person is generally able to pay its debts or other obligations in the ordinary  course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and  all business in which it proposes to be engaged.  





 






  - 32 -  LEGAL02/40527467v10     “Specified Derivatives Contract” means any Derivatives Contract, together with any Derivatives  Support Document relating thereto, that is made or entered into at any time, or in effect at any time now or  hereafter, whether as a result of an assignment or transfer or otherwise, between the Parent, the Borrower,  any other Loan Party or any other Subsidiary and any Specified Derivatives Provider.       “Specified Derivatives Obligations” means all indebtedness, liabilities, obligations, covenants  and duties of the Parent, the Borrower, any other Loan Party or any other Subsidiary under or in respect of  any Specified Derivatives Contract, whether direct or indirect, absolute or contingent, due or not due,  liquidated or unliquidated, and whether or not evidenced by any written confirmation.     “Specified Derivatives Provider” means any Person that (a) at the time it enters into a Specified  Derivatives Contract with a Loan Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its  Affiliate) becomes a Lender or the Administrative Agent (including on the Effective Date), is a party to a  Specified Derivatives Contract with a Loan Party, in each case in its capacity as a party to such Specified  Derivatives Contract.     “S&P” means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC  business, or any successor.     “Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of Credit  from time to time, as such amount may be increased or reduced from time to time in accordance with the  terms of such Letter of Credit; provided, however, that with respect to any Letter of Credit that, by its terms  or the terms of any Letter of Credit Document related thereto, provides for one or more automatic increases  in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the amount of the  maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not  such maximum stated amount is in effect at such time.     “Subsidiary” means, for any Person, any corporation, partnership, limited liability company or  other entity of which at least a majority of the Equity Interests having by the terms thereof ordinary voting  power to elect a majority of the board of directors or other individuals performing similar functions of such  corporation, partnership, limited liability company or other entity (without regard to the occurrence of any  contingency) is at the time directly or indirectly owned or controlled by such Person or one or more  Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall  include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.     “Sustainability Grid Notice” has the meaning given such term in the definition of “Applicable  Margin”.     “Sustainability Metric” means, collectively, for any fiscal year, the total number of water  conserving “smart” water submeters installed as a replacement to a traditional water submeter on an existing  water line, as a percentage of the total water submeters eligible for replacement as of the Agreement Date  at all Properties owned by Borrower and/or the Borrower’s Subsidiaries.    “Sustainability Metric Threshold Percentage” means the Sustainability Metric specified in the  table below for the applicable fiscal year:     Fiscal Year Sustainability Metric Threshold Percentage  January 1 through December 31, 2020 2020 Baseline  January 1 through December 31, 2021 2020 Baseline plus 9%  January 1 through December 31, 2022 2020 Baseline plus 18%  





 






  - 33 -  LEGAL02/40527467v10  January 1 through December 31, 2023 2020 Baseline plus 27%  January 1 through December 31, 2024 2020 Baseline plus 36%  January 1, 2025 through Revolving   Termination Date  2020 Baseline plus 45%     “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.     “Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all  obligations of such Person in respect of transactions entered into by such Person that are intended to  function primarily as a borrowing of funds (including any minority interest transactions that function  primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability  on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called  synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property  (including sale and leaseback transactions), in each case, creating obligations that do not appear on the  balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person,  would be characterized as the indebtedness of such Person (without regard to accounting treatment).     “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.     “Term Loan” means a loan made by a Term Loan Lender to the Borrower pursuant to  Section 2.2.(a) and any Additional Term Loans made pursuant to Section 2.16.     “Term Loan Commitment” means, as to each Term Loan Lender on the Effective Date, such  Lender’s obligation to make Term Loans pursuant to Section 2.2.(a), in an amount up to, but not exceeding  the amount set forth for such Lender on Schedule I as such Lender’s “Term Loan Commitment”.    “Term Loan Lender” means, on the Effective Date, a Lender holding a Term Loan Commitment  and, after the Effective Date, means a Lender holding Term Loans.     “Term Loan Termination Date” means April 17, 2026.     “Term Note” means a promissory note of the Borrower substantially in the form of Exhibit L,  payable to the order of a Term Loan Lender in a principal amount equal to the amount of such Term Loan  Lender’s Term Loan.    “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference  Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant  Governmental Body.    “Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the  Borrower of the occurrence of a Term SOFR Transition Event.    “Term SOFR Transition Event” means the determination by the Administrative Agent that (a)  Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of  Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event  





 






  - 34 -  LEGAL02/40527467v10  or an Early Opt-in Election, as applicable, has previously occurred resulting in the replacement of the then- current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section  4.2.(b) with a Benchmark Replacement the Unadjusted Benchmark Replacement component of which is  not Term SOFR.     “Termination Date” means (a) with respect to the Revolving Loans and Revolving Commitments,  the Revolving Termination Date and (b) with respect to the Term Loans, the Term Loan Termination Date.     “Titled Agent” has the meaning given that term in Section 11.9.     “Total Asset Value” means, as of any date of determination and without duplication, the sum of  (a)(i)(x) Net Operating Income attributable to Properties owned by the Borrower or any of its Subsidiaries  for any period of 12 consecutive calendar months ending during the term of this Agreement plus (y) the  Parent’s Ownership Share of Net Operating Income attributable to Properties owned by Unconsolidated  Affiliates for such period, divided by (ii) the Capitalization Rate, plus (b) the purchase price paid by the  Borrower, any of its Subsidiaries or any of its Unconsolidated Affiliates (less any amounts paid to the  Borrower, such Subsidiary or such Unconsolidated Affiliate as a purchase price adjustment, held in escrow,  retained as a contingency reserve, or in connection with other similar arrangements) for any Property  acquired by the Borrower, such Subsidiary or such Unconsolidated Affiliate during any such period of 12  consecutive calendar months, limited in the case of an Unconsolidated Affiliate, to the Parent’s Ownership  Share of the amounts referred to in this clause (b), plus (c) the value of all unrestricted cash and Cash  Equivalents then owned by the Parent, the Borrower and their respective Subsidiaries plus (d) Manufactured  Home Inventory Value of the Parent, the Borrower and their respective Subsidiaries, at such time, plus  (e) the GAAP book value of all Mezzanine Debt Investments, Mortgage Receivables and other notes  receivable (i) for which payments by the obligor thereof are not more than 90 days past due and (ii) the  obligor of which is not subject to any proceeding of the types described in Section 10.1.(e) or 10.1.(f), plus  (f) the GAAP book value of Development Activity and Unimproved Land then owned by the Parent, the  Borrower and their respective Subsidiaries, plus (g) the Parent’s Ownership Share of the foregoing items  described in clauses (c), (d), (e) and (f) of its Unconsolidated Affiliates; provided, however, that to the  extent that the amount of Total Asset Value attributable to (i) Properties that are not Designated Use  Properties, (ii) Unimproved Land, (iii) Development Activity, (iv) Mezzanine Debt Investments, Mortgage  Receivables and other notes receivable, and (v) Investments in Unconsolidated Affiliates and in  Subsidiaries that are not Wholly Owned Subsidiaries, in the aggregate would exceed 20% of Total Asset  Value, such excess shall be excluded.  Net Operating Income attributable to Properties acquired or disposed  of by the Borrower or any of its Subsidiaries or Unconsolidated Affiliates during any applicable period of  12 consecutive calendar months shall be excluded when determining Net Operating Income for purposes  of the immediately preceding clause (a).     “Total Indebtedness” means all Indebtedness of the Parent and its Subsidiaries, determined on a  consolidated basis, plus the Parent’s Ownership Share of all Indebtedness of its Unconsolidated Affiliates.     “Trade Date” has the meaning given that term in Section 12.5.(h).     “Type” with respect to any Loan, refers to whether such Loan (or portion thereof) is a LIBOR Loan  or a Base Rate Loan.    “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  





 






  - 35 -  LEGAL02/40527467v10    “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.    “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.       “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such  Person holds an Investment, which Investment is accounted for in the financial statements of such Person  on an equity basis of accounting and whose financial results would not be consolidated under GAAP with  the financial results of such Person on the consolidated financial statements of such Person.     “Unencumbered Net Operating Income” means for any period, Net Operating Income for such  period from each Qualifying Unencumbered Property.  Notwithstanding the foregoing, for purposes of  determining Unencumbered Net Operating Income, (i) to the extent the amount of the Net Operating  Income attributable to Qualifying Unencumbered Properties located in Canada and Mexico exceeds 20%  of Unencumbered Net Operating Income, such excess shall be excluded, (ii) to the extent the amount of the  Net Operating Income attributable to Qualifying Unencumbered Properties owned pursuant to a Qualifying  Ground Lease exceeds 5% of Unencumbered Net Operating Income, such excess shall be excluded and (iii)  to the extent the amount of the Net Operating Income attributable to Qualifying Unencumbered Properties  owned by Subsidiaries other than Wholly-Owned Subsidiaries exceeds 5% of Unencumbered Net  Operating Income, such excess shall be excluded.       “Unimproved Land” means, as of any date, land on which no development (other than  improvements that are not material and that are temporary in nature) has occurred and for which no  development is scheduled in the 12 months following such date.     “Unsecured Debt” means, as of any date of determination and without duplication, all  Indebtedness of the Parent, the Borrower or any Wholly Owned Subsidiary, which is not Secured Debt, but  in any event shall exclude (a) all accounts payable of the Parent, the Borrower or any Wholly Owned  Subsidiary incurred in the ordinary course of business, (b) all advance rents received and (c) all accrued  interest payable.     “Unsecured Interest Expense” means Interest Expense payable in respect of Unsecured Debt.     “USD LIBOR” means the London interbank offered rate for Dollars.     “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)  of the Internal Revenue Code.     “U.S. Tax Compliance Certificate” has the meaning assigned to such term in  Section 3.10.(g)(ii)(B)(III).     “Wells Fargo” means Wells Fargo Bank, National Association, and its successors and assigns.     “Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the  Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly  or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by  such Person and one or more other Subsidiaries of such Person.    





 






  - 36 -  LEGAL02/40527467v10   “Withdrawal Liability” means any liability as a result of a complete or partial withdrawal from a  Multiemployer Plan as such terms are defined in Part I of Subtitle E of Title IV of ERISA.     “Withholding Agent” means (a) the Borrower, (b) any other Loan Party and (c) the Administrative  Agent, as applicable.    “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  any powers  of the applicable Resolution Authority  under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution  or any contract or instrument under which that  liability arises, to convert all or part of that liability into shares, securities or obligations of that person or  any other person, to provide that any such contract or instrument is to have effect as if a right had been  exercised under it or to suspend any obligation in respect of that liability or any of the powers under that  Bail-In Legislation that are related to or ancillary to any of those powers.    Section 1.2.  General; References to Central time.   Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted or  determined in accordance with GAAP as in effect from time to time; provided that, if at any time any change  in GAAP would affect the computation of any financial ratio or requirement (including in any affirmative  or negative covenant) set forth in any Loan Document, and either the Borrower or the Requisite Lenders  shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to  amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP  (subject to the approval of the appropriate Lenders required under Section 12.6.); provided further that,  until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP  prior to such change therein and (ii) the Parent shall provide to the Administrative Agent and the Lenders  financial statements and other documents required under this Agreement or as reasonably requested  hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and  after giving effect to such change in GAAP.  Notwithstanding the preceding sentence, (i) the calculation of  liabilities shall not include any fair value adjustments to the carrying value of liabilities to record such  liabilities at fair value pursuant to electing the fair value option election under FASB ASC 825-10-25  (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other  FASB standards allowing entities to elect fair value option for financial liabilities, and the effects of FAS  141(R) in respect of fees and expenses in connection with a business combination shall be disregarded and  (ii) all accounting terms, ratios and calculations shall be determined without giving effect to Accounting  Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting  Standard having a similar result or effect) (and related interpretations) to the extent any lease (or similar  arrangement conveying the right to use) would be required to be treated as a capital lease thereunder where  such lease (or similar arrangement) would have been treated as an operating lease under GAAP as in effect  immediately prior to the effectiveness of the Accounting Standards Codification 842, provided that the  Borrower shall provide to the Administrative Agent and the Lenders financial statements and other  documents reasonably requested by the Administrative Agent and the Lenders setting forth a reconciliation  between calculations of such ratio or requirement made in accordance with  GAAP and made without giving  effect to Account Standards Codification 842.  References in this Agreement to “Sections”, “Articles”,  “Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless  otherwise indicated.  References in this Agreement to any document, instrument or agreement (a) shall  include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments  or agreements issued or executed in replacement thereof, to the extent permitted hereby and (c) shall mean  such document, instrument or agreement, or replacement or predecessor thereto, as amended,  





 






  - 37 -  LEGAL02/40527467v10  supplemented, restated or otherwise modified from time to time to the extent not otherwise stated herein or  prohibited hereby and in effect at any given time.  Wherever from the context it appears appropriate, each  term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the  masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter.  Except as  expressly provided otherwise in any Loan Document, (i) any reference to any law shall include all statutory  and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law and  any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as  amended, modified, extended, restated, replaced or supplemented from time to time and (ii) any reference  to any Person shall be construed to include such Person’s permitted successors and permitted assigns.   Unless explicitly set forth to the contrary, a reference to “Subsidiary” means a Subsidiary of the Parent or  a Subsidiary of such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the  Borrower.  Titles and captions of Articles, Sections, subsections and clauses in this Agreement are for  convenience only, and neither limit nor amplify the provisions of this Agreement.  Unless otherwise  indicated, all references to time are references to Central time, daylight or standard, as applicable.  Any  financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated  by dividing the appropriate component by the other component, carrying the result to one place more than  the number of places by which such ratio is expressed herein and rounding the result up or down to the  nearest number (with a rounding-up if there is no nearest number).    Section 1.3.  Financial Attributes of Non-Wholly Owned Subsidiaries.   Except as otherwise expressly provided herein, when determining compliance by the Parent or the  Borrower with any financial covenant contained in any of the Loan Documents (a) only the Ownership  Share of the Parent or the Borrower, as applicable, of the financial attributes of a Subsidiary that is not a  Wholly Owned Subsidiary shall be included and (b) the Parent’s Ownership Share of the Borrower shall be  deemed to be 100.0%.    Section 1.4.  Rates.  The interest rate on LIBOR Loans and Base Rate Loans (when determined by reference to clause  (c) of the definition of Base Rate) may be determined by reference to LIBOR, which is derived from the  London interbank offered rate.  The London interbank offered rate is intended to represent the rate at which  contributing banks may obtain short-term borrowings from each other in the London interbank market.  On  March 5, 2021, ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered  rate, and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in  public statements (the “Announcements”) that the final publication or representativeness date for the  London interbank offered rate for Dollars for: (a) 1-week and 2-month tenor settings will be December 31,  2021 and (b) overnight, 1-month, 3-month, 6-month and 12-month tenor settings will be June 30, 2023. No  successor administrator for IBA was identified in such Announcements.  As a result, it is possible that  commencing immediately after such dates, the London interbank offered rate for such tenors may no longer  be available or may no longer be deemed a representative reference rate upon which to determine the  interest rate on LIBOR Loans or Base Rate Loans (when determined by reference to clause (c) of the  definition of Base Rate). There is no assurance that the dates set forth in the Announcements will not change  or that IBA or the FCA will not take further action that could impact the availability, composition or  characteristics of any London interbank offered rate. Public and private sector industry initiatives have been  and continue, as of the date hereof, to be underway to implement new or alternative reference rates to be  used in place of the London interbank offered rate.  In the event that the London interbank offered rate or  any other then-current Benchmark is no longer available or in certain other circumstances set forth in  Section 4.2.(b), such Section 4.2.(b) provides a mechanism for determining an alternative rate of interest.  The Administrative Agent will notify the Borrower, pursuant to Section 4.2.(b), of any change to the  reference rate upon which the interest rate on LIBOR Loans and Base Rate Loans (when determined by  





 






  - 38 -  LEGAL02/40527467v10  reference to clause (c) of the definition of Base Rate) is based.  However, the Administrative Agent does  not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the  administration of, submission of, calculation of or any other matter related to the London interbank offered  rate or other rates in the definition of “LIBOR” or with respect to any alternative, comparable or successor  rate thereto, or replacement rate thereof (including any then-current Benchmark or any Benchmark  Replacement), including whether the composition or characteristics of any such alternative, successor or  replacement reference rate (including any Benchmark Replacement), as it may or may not be adjusted  pursuant to Section 4.2.(b), will be similar to, or produce the same value or economic equivalence of,  LIBOR or any other Benchmark, or have the same volume or liquidity as did the London interbank offered  rate or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation  or composition of any Benchmark Replacement Conforming Changes.    Section 1.5.  Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division  under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right,  obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,  then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b)  if any new Person comes into existence, such new Person shall be deemed to have been organized on the  first date of its existence by the holders of its equity interests at such time.      ARTICLE II. CREDIT FACILITY  Section 2.1.  Revolving Loans.   (a) Making of Revolving Loans.  Subject to the terms and conditions set forth in this  Agreement, including without limitation, Section 2.15., each Revolving Lender severally and not jointly  agrees to make Revolving Loans in Dollars to the Borrower during the period from and including the  Effective Date to but excluding the Revolving Termination Date, in an aggregate principal amount at any  one time outstanding up to, but not exceeding, such Lender’s Revolving Commitment.  Each borrowing of  Revolving Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of  $100,000 in excess thereof.  Notwithstanding the immediately preceding sentence but subject to  Section 2.15., a borrowing of Revolving Loans may be in the aggregate amount of the unused Revolving  Commitments.  Within the foregoing limits and subject to the terms and conditions of this Agreement, the  Borrower may borrow, repay and reborrow Revolving Loans.     (b) Requests for Revolving Loans. Not later than (i) 12:00 p.m. Central time at least 1 Business  Day prior to a borrowing of Revolving Loans that are to be Base Rate Loans (other than any Same-Day  Borrowing), (ii) not later than 12:00 p.m. Central time at least 3 Business Days prior to a borrowing of  Revolving Loans that are to be LIBOR Loans (other than any Same-Day Borrowing) and (iii) 10:00 a.m.  Central time on the date of any borrowing of Revolving Loans that are to be Same-Day Borrowings, the  Borrower shall deliver to the Administrative Agent a Notice of Revolving Borrowing.  Each Notice of  Revolving Borrowing shall specify the aggregate principal amount of the Revolving Loans to be borrowed,  the date such Revolving Loans are to be borrowed (which must be a Business Day), the use of the proceeds  of such Revolving Loans, the Type of the requested Revolving Loans, whether such Revolving Loans are  to be Same-Day Borrowings, and if such Revolving Loans are to be LIBOR Loans, the initial Interest Period  for such Revolving Loans.  Each Notice of Revolving Borrowing shall be irrevocable once given and  binding on the Borrower.  Prior to delivering a Notice of Revolving Borrowing, the Borrower may (without  specifying whether a Revolving Loan will be a Base Rate Loan or a LIBOR Loan) request that the  Administrative Agent provide the Borrower with the most recent LIBOR available to the Administrative  





 






  - 39 -  LEGAL02/40527467v10  Agent.  The Administrative Agent shall provide such quoted rate to the Borrower on the date of such request  or as soon as possible thereafter.     (c) Funding of Revolving Loans.  Promptly after receipt of a Notice of Revolving Borrowing  under the immediately preceding subsection (b), the Administrative Agent shall notify each Revolving  Lender of the proposed borrowing.  Each Revolving Lender shall deposit an amount equal to the Revolving  Loan to be made by such Lender to the Borrower with the Administrative Agent at the Principal Office, in  immediately available funds not later than (i) in the case of a Same-Day Borrowing,  12:00 p.m. Central  time on the date of such proposed Revolving Loans; and (ii) in the case of a non-Same-Day Borrowing,  11:00 a.m. Central time on the date specified in the applicable Notice of Revolving Borrowing.  Subject to  fulfillment of all applicable conditions set forth herein, the Administrative Agent shall make available to  the Borrower in the account specified in the Disbursement Instruction Agreement, not later than (i) in the  case of a Same-Day Borrowing, 2:00 p.m. Central time on the date of the requested borrowing of Revolving  Loans; and (ii) in the case of a non-Same-Day Borrowing, 12:00 p.m. Central time on the Business Day  specified in the applicable Notice of Revolving Borrowing, the proceeds of such amounts received by the  Administrative Agent.       (d) Assumptions Regarding Funding by Revolving Lenders.  With respect to Revolving Loans  to be made after the Effective Date, unless the Administrative Agent shall have been notified by any  Revolving Lender that such Lender will not make available to the Administrative Agent a Revolving Loan  to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that  such Lender will make the proceeds of such Revolving Loan available to the Administrative Agent in  accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in reliance  upon such assumption, make available to the Borrower the amount of such Revolving Loan to be provided  by such Lender.  In such event, if such Lender does not make available to the Administrative Agent the  proceeds of such Revolving Loan, then such Lender and the Borrower severally agree to pay to the  Administrative Agent on demand the amount of such Revolving Loan with interest thereon, for each day  from and including the date such Revolving Loan is made available to the Borrower but excluding the date  of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the  greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the  Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay the  amount of such interest to the Administrative Agent for the same or 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 to the Administrative Agent the amount of such Revolving Loan, the amount  so paid shall constitute such Lender’s Revolving Loan included in the borrowing.  Any payment by the  Borrower shall be without prejudice to any claim the Borrower may have against a Revolving Lender that  shall have failed to make available the proceeds of a Revolving Loan to be made by such Lender.    Section 2.2.  Term Loans.  (a) Making of Term Loans.  Subject to the terms and conditions hereof, on the Effective Date,  each Lender severally and not jointly agrees to make Term Loans to the Borrower in the aggregate principal  amount equal to the amount of such Lender’s Term Loan Commitment.  Upon funding of the Term Loans,  the Term Loan Commitments shall terminate.     (b) Requests for Loans.  Not later than 10:00 a.m. Central time on the Business Day  immediately preceding the anticipated Effective Date, the Borrower shall give the Administrative Agent a  Notice of Term Borrowing.  Such notice shall be irrevocable once given and binding on the Borrower.      





 






  - 40 -  LEGAL02/40527467v10   (c) Funding of Loans.  Subject to fulfillment of all applicable conditions set forth herein, the  Administrative Agent shall make available to the Borrower in the account specified in the Disbursement  Instruction Agreement, not later than 10:00 a.m. Central time on the Effective Date, the proceeds of such  amounts received by the Administrative Agent.  The Borrower may not reborrow any portion of the Term  Loans once repaid.      Section 2.3.  Letters of Credit.   (a) Letters of Credit.  Subject to the terms and conditions of this Agreement, including without  limitation, Section 2.15., each Issuing Bank, on behalf of the Revolving Lenders, agrees to issue for the  account of the Borrower during the period from and including the Effective Date to, but excluding, the date  30 days prior to the Revolving Termination Date, one or more standby letters of credit (each a “Letter of  Credit”) up to a maximum aggregate Stated Amount at any one time outstanding not to exceed $50,000,000  as such amount may be reduced from time to time in accordance with the terms hereof (the “L/C  Commitment Amount”); provided, that the aggregate Stated Amount of outstanding Letters of Credit issued  by an Issuing Bank shall not exceed 50% of the L/C Commitment Amount at any time.      (b) Terms of Letters of Credit.  At the time of issuance, the amount, form, terms and conditions  of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to approval by the  applicable Issuing Bank and the Borrower.  Notwithstanding the foregoing, in no event may (i) the  expiration date of any Letter of Credit extend beyond the date that is 10 days prior to the Revolving  Termination Date, or (ii) any Letter of Credit have an initial duration in excess of one year; provided,  however, a Letter of Credit may contain a provision providing for the automatic extension of the expiration  date in the absence of a notice of non-renewal from the applicable Issuing Bank but in no event shall any  such provision permit the extension of the expiration date of such Letter of Credit beyond the date that is  10 days prior to the Revolving Termination Date.  Notwithstanding the foregoing, a Letter of Credit may,  as a result of its express terms or as the result of the effect of an automatic extension provision, have an  expiration date of not more than one year beyond the Revolving Termination Date (any such Letter of  Credit being referred to as an “Extended Letter of Credit”), so long as the Borrower delivers to the  Administrative Agent for its benefit and the benefit of the Issuing Bank and the Revolving Lenders no later  than 30 days prior to the Revolving Termination Date, Cash Collateral for such Letter of Credit for deposit  into the Letter of Credit Collateral Account in an amount equal to the Stated Amount of such Letter of  Credit; provided, that the obligations of the Borrower under this Section in respect of such Extended Letters  of Credit shall survive the termination of this Agreement and shall remain in effect until no such Extended  Letters of Credit remain outstanding.  If the Borrower fails to provide Cash Collateral with respect to any  Extended Letter of Credit by the date 30 days prior to the Revolving Termination Date, such failure shall  be treated as a drawing under such Extended Letter of Credit (in an amount equal to the maximum Stated  Amount of such Letter of Credit), which shall be reimbursed (or participations therein funded) by the  Revolving Lenders in accordance with the immediately following subsections (i) and (j), with the proceeds  being utilized to provide Cash Collateral for such Letter of Credit.  The initial Stated Amount of each Letter  of Credit shall be at least $50,000 (or such lesser amount as the applicable Issuing Bank, the Administrative  Agent and the Borrower may agree).       (c) Requests for Issuance of Letters of Credit.  The Borrower shall give the applicable Issuing  Bank and the Administrative Agent written notice at least 5 Business Days prior to the requested date of  issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of such Letter  of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit,  and in any event shall set forth with respect to such Letter of Credit the proposed (i) initial Stated Amount,  (ii) beneficiary, and (iii) expiration date. The Borrower shall also execute and deliver such customary  applications and agreements for standby letters of credit, and other forms as requested from time to time by  the applicable Issuing Bank.  Provided the Borrower has given the notice prescribed by the first sentence  





 






  - 41 -  LEGAL02/40527467v10  of this subsection and delivered such applications and agreements referred to in the preceding sentence,  subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable  conditions precedent set forth in Section 5.2., the applicable Issuing Bank shall issue the requested Letter  of Credit on the requested date of issuance for the benefit of the stipulated beneficiary but in no event prior  to the date 5 Business Days following the date after which the applicable Issuing Bank has received all of  the items required to be delivered to it under this subsection.  An Issuing Bank shall not at any time be  obligated to issue any Letter of Credit if such issuance would conflict with, or cause the Administrative  Agent, the applicable Issuing Bank or any Revolving Lender to exceed any limits imposed by, any  Applicable Law.  References herein to “issue” and derivations thereof with respect to Letters of Credit shall  also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise  requires.  Upon the written request of the Borrower, the applicable Issuing Bank shall deliver to the  Borrower a copy of each issued Letter of Credit within a reasonable time after the date of issuance thereof.   To the extent any term of a Letter of Credit Document is inconsistent with a term of any Loan Document,  the term of such Loan Document shall control.     (d) Reimbursement Obligations.  Upon receipt by an Issuing Bank from the beneficiary of a  Letter of Credit issued by such Issuing Bank of any demand for payment under such Letter of Credit, such  Issuing Bank shall promptly notify the Borrower and the Administrative Agent of the amount to be paid by  such Issuing Bank as a result of such demand and the date on which payment is to be made by such Issuing  Bank to such beneficiary in respect of such demand; provided, however, that an Issuing Bank’s failure to  give, or delay in giving, such notice shall not discharge the Borrower in any respect from the applicable  Reimbursement Obligation.  The Borrower hereby absolutely, unconditionally and irrevocably agrees to  pay and reimburse each Issuing Bank for the amount of each payment under each Letter of Credit issued  by such Issuing Bank in accordance with clause (e) below, without presentment, demand, protest or other  formalities of any kind.  Upon receipt by an Issuing Bank of any payment in respect of any Reimbursement  Obligation, such Issuing Bank shall promptly pay to the Administrative Agent for the account of each  Revolving Lender that has acquired a participation therein under the second sentence of the immediately  following subsection (i) such Lender’s Revolving Commitment Percentage of such payment.       (e) Manner of Reimbursement.  Upon receipt by an Issuing Bank from the beneficiary of a  Letter of Credit of any demand for payment under such Letter of Credit, then (i) if the applicable conditions  contained in Article V. would permit the making of Revolving Loans, the Borrower shall be deemed to  have requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an amount equal to  the unpaid Reimbursement Obligation and the Administrative Agent shall give each Revolving Lender  prompt notice of the amount of the Revolving Loan to be made available to the Administrative Agent not  later than 12:00 noon Central time on the Business Day immediately following the date that the  Administrative Agent receives such notice from the applicable Issuing Bank and (ii) if such conditions  would not permit the making of Revolving Loans, the provisions of subsection (j) of this Section shall  apply.  The limitations set forth in the second sentence of Section 2.1.(a) shall not apply to any borrowing  of Base Rate Loans under this subsection.     (f) Effect of Letters of Credit on Revolving Commitments.  Upon the issuance by an Issuing  Bank of any Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the  Revolving Commitment of each Revolving Lender shall be deemed to be utilized for all purposes of this  Agreement in an amount equal to the product of (i) such Lender’s Revolving Commitment Percentage and  (ii) the sum of (A) the Stated Amount of such Letter of Credit plus (B) without duplication, any related  Reimbursement Obligations then outstanding.     (g) Issuing Banks’ Duties Regarding Letters of Credit; Unconditional Nature of  Reimbursement Obligations.  In examining documents presented in connection with drawings under Letters  of Credit and making payments under Letters of Credit issued by an Issuing Bank against such documents,  





 






  - 42 -  LEGAL02/40527467v10  such Issuing Bank shall only be required to use the same standard of care as it uses in connection with  examining documents presented in connection with drawings under letters of credit in which it has not sold  participations and making payments under such letters of credit.  The Borrower assumes all risks of the acts  and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.   In furtherance and not in limitation of the foregoing, none of the Issuing Banks, the Administrative Agent  or any of the Lenders shall be responsible for, and the Borrower’s obligations in respect of Letters of Credit  shall not be affected in any manner by (i) the form, validity, sufficiency, accuracy, genuineness or legal  effects of any document submitted by any party in connection with the application for and issuance of or  any drawing honored under any Letter of Credit even if such document should in fact prove to be in any or  all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any  instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or  benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective  for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required  in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission  or delivery of any messages, by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or  not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission  or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the  proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of Credit, or of the proceeds of  any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control  of the Issuing Banks, the Administrative Agent or the Lenders.  None of the above shall affect, impair or  prevent the vesting of any of an Issuing Bank’s or Administrative Agent’s rights or powers hereunder.  Any  action taken or omitted to be taken by an Issuing Bank under or in connection with any Letter of Credit  issued by such Issuing Bank, if taken or omitted in the absence of gross negligence or willful misconduct  (as determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create  against such Issuing Bank any liability to the Borrower, the Administrative Agent or any Lender.  In this  connection, the obligation of the Borrower to reimburse an Issuing Bank for any drawing made under any  Letter of Credit issued by such Issuing Bank, and to repay any Revolving Loan made pursuant to the second  sentence of the immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and  shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of  Credit Document under all circumstances whatsoever, including without limitation, the following  circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or  provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter  of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may  have at any time against such Issuing Bank, any other Issuing Bank, the Administrative Agent, any Lender,  any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the  transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any  breach of contract or dispute between the Borrower, such Issuing Bank, any other Issuing Bank, the  Administrative Agent, any Lender or any other Person; (E) any demand, statement or any other document  presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement therein or made in connection therewith being untrue or inaccurate in any respect whatsoever;  (F) any non-application or misapplication by the beneficiary of a Letter of Credit or of the proceeds of any  drawing under such Letter of Credit; (G) payment by such Issuing Bank under any Letter of Credit against  presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit;  and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions  of this Section, constitute a legal or equitable defense to or discharge of the Borrower’s Reimbursement  Obligations.  Notwithstanding anything to the contrary contained in this Section or Section 12.9., but not  in limitation of the Borrower’s unconditional obligation to reimburse an Issuing Bank for any drawing made  under a Letter of Credit as provided in this Section and to repay any Revolving Loan made pursuant to the  second sentence of the immediately preceding subsection (e), the Borrower shall have no obligation to  indemnify the Administrative Agent, an Issuing Bank or any Lender in respect of any liability incurred by  the Administrative Agent, such Issuing Bank or such Lender arising solely out of the gross negligence or  





 






  - 43 -  LEGAL02/40527467v10  willful misconduct of such Person or such Person’s Related Parties in respect of a Letter of Credit as  determined by a court of competent jurisdiction in a final, non-appealable judgment.  Except as otherwise  provided in this Section, nothing in this Section shall affect any rights the Borrower may have with respect  to the gross negligence or willful misconduct of the Administrative Agent, an Issuing Bank, any Lender or  any of their respective Related Parties with respect to any Letter of Credit.   (h) Amendments, Etc.  The issuance by an Issuing Bank of any amendment, supplement or  other modification to any Letter of Credit issued by such Issuing Bank shall be subject to the same  conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without  limitation, that the request therefor be made through the applicable Issuing Bank and the Administrative  Agent), and no such amendment, supplement or other modification shall be issued unless either (i) the  respective Letter of Credit affected thereby would have complied with such conditions had it originally  been issued hereunder in such amended, supplemented or modified form or (ii) the Administrative Agent  and the applicable Revolving Lenders required by Section 12.6. shall have consented thereto.  In connection  with any such amendment, supplement or other modification, the Borrower shall pay the fees, if any,  payable under the last sentence of Section 3.5.(c).     (i) Revolving Lenders’ Participation in Letters of Credit.  Immediately upon the issuance by  an Issuing Bank of any Letter of Credit, each Revolving Lender shall be deemed to have absolutely,  irrevocably and unconditionally purchased and received from the applicable Issuing Bank, without recourse  or warranty, an undivided interest and participation to the extent of such Lender’s Revolving Commitment  Percentage of the liability of such Issuing Bank with respect to such Letter of Credit and each Revolving  Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as  surety, and shall be unconditionally obligated to such Issuing Bank to pay and discharge when due, such  Lender’s Revolving Commitment Percentage of such Issuing Bank’s liability under such Letter of Credit.   In addition, upon the making of each payment by a Revolving Lender to the Administrative Agent for the  account of an Issuing Bank in respect of any Letter of Credit issued by it pursuant to the immediately  following subsection (j), such Lender shall, automatically and without any further action on the part of such  Issuing Bank, the Administrative Agent or such Lender, acquire (i) a participation in an amount equal to  such payment in the Reimbursement Obligation owing to such Issuing Bank by the Borrower in respect of  such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s Revolving Commitment  Percentage in any interest or other amounts payable by the Borrower in respect of such Reimbursement  Obligation (other than the Fees payable to such Issuing Bank pursuant to the last sentence of  Section 3.5.(c)).     (j) Payment Obligation of Lenders.  Each Revolving Lender severally agrees to pay to the  Administrative Agent, for the account of each Issuing Bank, on demand in immediately available funds in  Dollars the amount of such Lender’s Revolving Commitment Percentage of each drawing paid by such  Issuing Bank under each Letter of Credit issued by it to the extent such amount is not reimbursed by the  Borrower pursuant to the immediately preceding subsection (d); provided, however, that in respect of any  drawing under any Letter of Credit, the maximum amount that any Revolving Lender shall be required to  fund, whether as a Revolving Loan or as a participation, shall not exceed such Lender’s Revolving  Commitment Percentage of such drawing except as otherwise provided in Section 3.9.(d). If the notice  referenced in the second sentence of Section 2.3.(e) is received by a Revolving Lender not later than 11:00  a.m. Central time, then such Lender shall make such payment available to the Administrative Agent not  later than 2:00 p.m. Central time on the date of demand therefor; otherwise, such payment shall be made  available to the Administrative Agent not later than 1:00 p.m. Central time on the next succeeding Business  Day.  Each Revolving Lender’s obligation to make such payments to the Administrative Agent under this  subsection, and the Administrative Agent’s right to receive the same for the account of the applicable  Issuing Bank, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any  circumstance whatsoever, including without limitation, (i) the failure of any other Revolving Lender to  





 






  - 44 -  LEGAL02/40527467v10  make its payment under this subsection, (ii) the financial condition of the Borrower or any other Loan Party,  (iii) the existence of any Default or Event of Default, including any Event of Default described in  Section 10.1.(e) or (f), (iv) the termination of the Commitments or (v) the delivery of Cash Collateral in  respect of any Extended Letter of Credit.  Each such payment to the Administrative Agent for the account  of the Issuing Bank shall be made without any offset, abatement, withholding or deduction whatsoever.       (k) Information to Revolving Lenders.  Promptly following any change in Letters of Credit  outstanding, the applicable Issuing Bank shall deliver to the Administrative Agent, who shall promptly  deliver the same to each Revolving Lender and the Borrower, a notice describing the aggregate amount of  all Letters of Credit issued by such Issuing Bank outstanding at such time.  Upon the request of any  Revolving Lender from time to time, an Issuing Bank shall deliver any other information reasonably  requested by such Lender with respect to such Letter of Credit then outstanding.  Other than as set forth in  this subsection, the Issuing Banks and the Administrative Agent shall have no duty to notify the Revolving  Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder.  The failure  of any Issuing Bank or the Administrative Agent to perform its requirements under this subsection shall not  relieve any Revolving Lender from its obligations under the immediately preceding subsection (j).     (l) Applicability of ISP98. Unless otherwise expressly agreed by any Issuing Bank and the  Borrower when a Letter of Credit is issued, the rules of ISP98 shall apply to each standby Letter of Credit.     (m) Extended Letters of Credit.  Each Revolving Lender confirms that its obligations under the  immediately preceding subsections (i) and (j) shall be reinstated in full and apply if the delivery of any Cash  Collateral in respect of an Extended Letter of Credit is subsequently invalidated, declared to be fraudulent  or preferential, set aside or required to be repaid to a trustee, receiver or any other party, in connection with  any proceeding under any Debtor Relief Law or otherwise.    Section 2.4.  [Reserved].  Section 2.5.  Rates and Payment of Interest on Loans.   (a) Rates.  The Borrower promises to pay to the Administrative Agent for the account of each  Lender interest on the unpaid principal amount of each Loan made by such Lender for the period from and  including the date of the making of such Loan to but excluding the date such Loan shall be paid in full, at  the following per annum rates:    (i) in the case of a Revolving Loan, during such periods as such Loan is (x) a LIBOR  Loan (other than a Same-Day Borrowing), at LIBOR for such Loan for the Interest Period therefor,  plus the Applicable Margin for Revolving Loans that are LIBOR Loans, (y) a LIBOR Loan that is  a Same-Day Borrowing, at the LIBOR Market Index Rate plus the Applicable Margin for  Revolving Loans that are LIBOR Loans, and (z) a Base Rate Loan, at the Base Rate (as in effect  from time to time), plus the Applicable Margin for Revolving Loans that are Base Rate Loans; and     (ii) in the case of a Term Loan, during such periods as such Loan is (x) a LIBOR Loan,  at LIBOR for such Loan for the Interest Period therefor, plus the Applicable Margin for Term Loans  that are LIBOR Loans and (y) a Base Rate Loan, at the Base Rate (as in effect from time to time),  plus the Applicable Margin for Term Loans that are Base Rate Loans.    Notwithstanding the foregoing, while an Event of Default exists, the Borrower shall pay to the  Administrative Agent for the account of each Lender and each Issuing Bank, as the case may be, interest at  the Post-Default Rate on the outstanding principal amount of any Loan made by such Lender, on all  Reimbursement Obligations and on any other amount payable by the Borrower hereunder or under the  





 






  - 45 -  LEGAL02/40527467v10  Notes held by such Lender to or for the account of such Lender (including without limitation, accrued but  unpaid interest to the extent permitted under Applicable Law); provided, however, except in the case of a  Default or Event of Default under Section 10.1.(a)(in which event the following notice shall not be  required), the Borrower shall not be required to pay interest at the Post-Default Rate unless the  Administrative Agent, at the direction of the Requisite Lenders, shall have notified the Borrower that  interest shall be payable at the Post-Default Rate.       (b) Payment of Interest. All accrued and unpaid interest on the outstanding principal amount  of each Loan shall be payable (i) monthly in arrears on the first day of each month, commencing with the  first full calendar month occurring after the Effective Date and (ii) on any date on which the principal  balance of such Loan is due and payable in full (whether at maturity, due to acceleration or otherwise).   Interest payable at the Post-Default Rate shall be payable from time to time on demand.  All determinations  by the Administrative Agent of an interest rate hereunder shall be conclusive and binding on the Lenders  and the Borrower for all purposes, absent manifest error.     (c) Borrower Information Used to Determine Applicable Interest Rates.      (i) The parties understand that the applicable interest rate for the Obligations and  certain fees set forth herein may be determined and/or adjusted from time to time based upon certain  financial ratios and/or other information to be provided or certified to the Lenders by the Borrower  (the “Borrower Information”).  If it is subsequently determined that any such Borrower Information  was incorrect (for whatever reason, including without limitation because of a subsequent  restatement of earnings by the Borrower) at the time it was delivered to the Administrative Agent,  and if the applicable interest rate or fees calculated for any period were lower than they should have  been had the correct information been timely provided, then, such interest rate and such fees for  such period shall be automatically recalculated using correct Borrower Information.  The  Administrative Agent shall promptly notify the Borrower in writing of any additional interest and  fees due because of such recalculation, and the Borrower shall pay such additional interest or fees  due to the Administrative Agent, for the account of each Lender, within 5 Business Days of receipt  of such written notice.  Any recalculation of interest or fees required by this provision shall survive  the termination of this Agreement, and this provision shall not in any way limit any of the  Administrative Agent’s, any Issuing Bank’s, or any Lender’s other rights under this Agreement.    (ii) Each party hereto hereby agrees that the Administrative Agent shall not have any  responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any  calculation by the Borrower of any Sustainability Metric Threshold Percentage or any  Sustainability Metric (or any of the data or computations that are part of or related to any such  calculation) set forth in any Sustainability Grid Notice. The Administrative Agent may rely  conclusively on any Sustainability Grid Notice delivered by the Borrower without any  responsibility to verify the accuracy thereof.    Section 2.6.  Number of Interest Periods.   There may be no more than (a) 10 different Interest Periods for Revolving Loans that are LIBOR  Loans outstanding at the same time and (b) 10 different Interest Periods for Term Loans that are LIBOR  Loans outstanding at the same time.    





 






  - 46 -  LEGAL02/40527467v10  Section 2.7.  Repayment of Loans.   The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid  interest on, (a) the Revolving Loans on the Revolving Termination Date and (b) the Term Loans on the  Term Loan Termination Date.     Section 2.8.  Prepayments.  (a) Optional.  Subject to Section 4.4., the Borrower may prepay any Loan at any time without  premium or penalty.  The Borrower shall give the Administrative Agent at least 3 Business Days prior  written notice of the prepayment of any Loan.  Each such notice of prepayment shall be irrevocable;  provided, that such notice of repayment (i) in connection with a refinancing of the entire outstanding  principal amount of, and all accrued but unpaid interest on, the Loans may be contingent upon the closing  of such refinancing; or (ii) may state that it is conditioned upon such other specified transaction, in which  case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior  to 2:00 p.m. one (1) Business Day prior to the specified effective date).  Each voluntary prepayment of a  Class of Loans shall be in an aggregate minimum amount of $100,000 and integral multiples of $25,000 in  excess thereof or the aggregate outstanding principal amount of the Loans of such Class.     (b) Mandatory. If at any time the aggregate principal amount of all outstanding Revolving  Loans, together with the aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate amount  of the Revolving Commitments, the Borrower shall promptly, and in any event within 1 Business Day of  demand, pay to the Administrative Agent for the account of the Revolving Lenders the amount of such  excess.  Amounts paid under the preceding sentence shall be applied, first, to pay all amounts of principal  outstanding on the Revolving Loans and any Reimbursement Obligations pro rata in accordance with  Section 3.2. and if any Letters of Credit are outstanding at such time, the remainder, if any, shall be  deposited into the Letter of Credit Collateral Account for application to any Reimbursement Obligations.   If the Borrower is required to pay any outstanding LIBOR Loans by reason of this Section prior to the end  of the applicable Interest Period therefor, the Borrower shall pay all amounts due under Section 4.4.     (c) No Effect on Derivatives Contracts.  No repayment or prepayment of the Loans pursuant  to this Section shall affect any of the Borrower’s obligations under any Derivatives Contracts entered into  with respect to any of the Loans.    Section 2.9.  Continuation.   So long as no Event of Default exists, the Borrower may on any Business Day, with respect to any  LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan by selecting a  new Interest Period for such LIBOR Loan.  Each Continuation of LIBOR Loans of the same Class shall be  in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that  amount, and each new Interest Period selected under this Section shall commence on the last day of the  immediately preceding Interest Period.  Each selection of a new Interest Period shall be made by the  Borrower giving to the Administrative Agent a Notice of Continuation not later than 12:00 p.m. Central  time on the third Business Day prior to the date of any such Continuation.  Such notice by the Borrower of  a Continuation shall be by telecopy, electronic mail or other similar form of communication in the form of  a Notice of Continuation, specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans,  Class and portions thereof subject to such Continuation, (c) the duration of the selected Interest Period and  (d) the amount of such LIBOR Loan, or portion thereof, that the Borrower has elected to have subject to a  Derivatives Contract that provides a hedge against interest rate risk and the Derivatives Contract(s) to which  such amount is subject, all of which shall be specified in such manner as is necessary to comply with all  limitations on Loans outstanding hereunder.  Each Notice of Continuation shall be irrevocable by and  





 






  - 47 -  LEGAL02/40527467v10  binding on the Borrower once given.  Promptly after receipt of a Notice of Continuation, the Administrative  Agent shall notify each Lender holding a Loan being Continued of the proposed Continuation.  If the  Borrower shall fail to select in a timely manner a new Interest Period for any LIBOR Loan in accordance  with this Section, such Loan will automatically, on the last day of the current Interest Period therefor,  continue as a LIBOR Loan with an Interest Period of one month; provided, however that if an Event of  Default exists, such Loan will automatically, on the last day of the current Interest Period therefor, Convert  into a Base Rate Loan notwithstanding the first sentence of Section 2.10. or the Borrower’s failure to  comply with any of the terms of such Section.     Section 2.10.  Conversion.   The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to  the Administrative Agent by telecopy, electronic mail or other similar form of communication, Convert all  or a portion of a Loan of one Type into a Loan of another Type; provided, however, a Base Rate Loan may  not be Converted into a LIBOR Loan if a Default or Event of Default exists.  Each Conversion of Base Rate  Loans of a Class into LIBOR Loans shall be in an aggregate minimum amount of $1,000,000 and integral  multiples of $100,000 in excess of that amount.  Each Notice of Conversion shall be given not later than  12:00 p.m. Central time 3 Business Days prior to the date of any proposed Conversion.  Promptly after  receipt of a Notice of Conversion, the Administrative Agent shall notify each Lender holding a Loan being  Converted of the proposed Conversion.  Subject to the restrictions specified above, each Notice of  Conversion shall be by telecopy, electronic mail or other similar form of communication in the form of a  Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type and Class of Loan  to be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan is  to be Converted into and (e) if such Conversion is into a LIBOR Loan, the requested duration of the Interest  Period of such Loan and the amount of such LIBOR Loan, if any, that the Borrower has elected to have  subject to a Derivatives Contract that provides a hedge against interest rate risk and the Derivatives  Contract(s) to which such amount is subject.  Each Notice of Conversion shall be irrevocable by and binding  on the Borrower once given.      Section 2.11.  Notes.   (a) Notes.  Except in the case of a Lender that has notified the Administrative Agent in writing  that it elects not to receive Notes, the Loans of a Class made by a Lender shall, in addition to this Agreement,  also be evidenced by a Note of such Class, payable to the order of such Lender in a principal amount equal  to, in the case of a Revolving Lender, the amount of its Revolving Commitment as originally in effect (or  otherwise in effect at the time that the applicable Revolving Note is issued), and in the case of a Term Loan  Lender, the initial principal amount of its Term Loan and, in each case, otherwise duly completed.       (b) Records.  The date, amount, interest rate, Type and duration of Interest Periods (if  applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the  principal thereof, shall be recorded by such Lender on its books and such entries shall be binding on the  Borrower absent manifest error; provided, however, that (i) the failure of a Lender to make any such record  shall not affect the obligations of the Borrower under any of the Loan Documents and (ii) if there is a  discrepancy between such records of a Lender and the statements of accounts maintained by the  Administrative Agent pursuant to Section 3.8., in the absence of manifest error, the statements of account  maintained by the Administrative Agent pursuant to Section 3.8. shall be controlling.     (c) Lost, Stolen, Destroyed or Mutilated Notes.  Upon receipt by the Borrower of (i) written  notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii)(A) in  the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form  reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation  





 






  - 48 -  LEGAL02/40527467v10  of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated  the date of such lost, stolen, destroyed or mutilated Note.      Section 2.12.  Voluntary Reductions of the Revolving Commitment.   The Borrower shall have the right to terminate or reduce the aggregate unused amount of the  Revolving Commitments (for which purpose use of the Revolving Commitments shall be deemed to include  the aggregate amount of all Letter of Credit Liabilities) at any time and from time to time without penalty  or premium upon not less than 5 Business Days prior written notice to the Administrative Agent of each  such termination or reduction, which notice shall specify the effective date thereof and the amount of any  such reduction (which in the case of any partial reduction of the Revolving Commitments shall not be less  than $10,000,000 and integral multiples of $5,000,000 in excess of that amount in the aggregate) and shall  be irrevocable once given and effective only upon receipt by the Administrative Agent (“Commitment  Reduction Notice”); provided, however, the Borrower may not reduce the aggregate amount of the  Revolving Commitments below $100,000,000 unless the Borrower is terminating the Revolving  Commitments in full.  Promptly after receipt of a Commitment Reduction Notice the Administrative Agent  shall notify each Revolving Lender of the proposed termination or reduction of the Revolving  Commitments.  The Revolving Commitments, once reduced or terminated pursuant to this Section, may  not be increased or reinstated.      Section 2.13.  Extension of Revolving Termination Date.   The Borrower shall have the right, exercisable two times, to extend the Revolving Termination  Date by six months for each extension.  The Borrower may exercise such right only by executing and  delivering to the Administrative Agent at least 30 days but not more than 90 days prior to the then current  Revolving Termination Date, a written request for such extension (the “Extension Request”).  The  Administrative Agent shall notify the Revolving Lenders if it receives the Extension Request promptly  upon receipt thereof.  Subject to satisfaction of the following conditions, the Revolving Termination Date  shall be extended for six months from the then current Revolving Termination Date effective upon receipt  by the Administrative Agent of payment of the fee referred to in the following clause (b): (a) immediately  prior to such extension and immediately after giving effect thereto, (i) no Default or Event of Default shall  exist and (ii) the representations and warranties made or deemed made by the Parent, the Borrower and  each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in  all material respects (except in the case of a representation or warranty qualified by materiality, in which  case such representation or warranty shall be true and correct in all respects) on and as of the date of such  extension with the same force and effect as if made on and as of such date except to the extent that such  representations and warranties expressly relate solely to an earlier date (in which case such representations  and warranties shall have been true and correct in all material respects (except in the case of a representation  or warranty qualified by materiality, in which case such representation or warranty shall be true and correct  in all respects) on and as of such earlier date) and except for changes in factual circumstances not prohibited  under the Loan Documents and (b) the Borrower shall have paid the Fees payable under Section 3.5.(d).   At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request (or  the request of any Lender through the Administrative Agent), the Parent shall deliver to the Administrative  Agent a certificate from a Responsible Officer of the Parent certifying the matters referred to in the  immediately preceding clauses (a)(i) and (a)(ii).    Section 2.14.  Expiration Date of Letters of Credit Past Commitment Termination.   If on the date the Revolving Commitments are terminated or reduced to zero (whether voluntarily,  by reason of the occurrence of an Event of Default or otherwise), there are any Letters of Credit outstanding  hereunder and the aggregate Stated Amount of such Letters of Credit exceeds the balance of available funds  





 






  - 49 -  LEGAL02/40527467v10  on deposit in the Letter of Credit Collateral Account, then the Borrower shall, on such date, pay to the  Administrative Agent, for its benefit and the benefit of the Revolving Lenders and the Issuing Banks, for  deposit into the Letter of Credit Collateral Account, an amount of money equal to the amount of such  excess.    Section 2.15.  Amount Limitations.     Notwithstanding any other term of this Agreement or any other Loan Document, no Revolving  Lender shall be required to make any Revolving Loan, the Issuing Banks shall not be required to issue a  Letter of Credit, and no reduction of the Revolving Commitments pursuant to Section 2.12. shall take effect,  if immediately after the making of such Loan, the issuance of such Letter of Credit or reduction in the  Revolving Commitments the aggregate principal amount of all outstanding Revolving Loans, together with  the aggregate amount of all Letter of Credit Liabilities, would exceed the aggregate amount of the  Revolving Commitments at such time.    Section 2.16.  Increase in Revolving Commitments and Additional Term Loans.   The Borrower shall have the right (a) prior to the Revolving Termination Date, to request increases  in the aggregate amount of the Revolving Commitments and (b) prior to the Term Loan Termination Date,  to request the making of additional Term Loans (“Additional Term Loans”), in each case, by providing  written notice to the Administrative Agent, which notice shall be irrevocable once given; provided,  however, that after giving effect to any increase in the Revolving Commitments and the making of any  Additional Term Loans, the aggregate amount of the increases in the Revolving Commitments and the  aggregate principal amount of Additional Term Loans shall not exceed $200,000,000.  Each such increase  in the Revolving Commitments or borrowing of Additional Term Loans must be in an aggregate minimum  amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof.  Additional Term Loans  shall be subject to the same terms and conditions of this Agreement that are applicable to all other Term  Loans. The Administrative Agent, in consultation with the Borrower, shall manage all aspects of the  syndication of such increase in the Revolving Commitments or making of Additional Term Loans, as  applicable, including decisions as to the selection of the existing Lenders and/or other banks, financial  institutions and other institutional lenders to be approached with respect to such increase in the Revolving  Commitments or the making of Additional Term Loans, as applicable, and the allocations of the increase  in the Revolving Commitments or the making of Additional Term Loans, as applicable, among such  existing Lenders and/or other banks, financial institutions and other institutional lenders.  No Lender shall  be obligated in any way whatsoever to increase its Revolving Commitment, provide a new Revolving  Commitment or make an Additional Term Loan, and any new Lender becoming a party to this Agreement  in connection with any such requested increase in the Revolving Commitments or the making of Additional  Term Loans, as applicable, must be an Eligible Assignee.  If a new Revolving Lender becomes a party to  this Agreement, or if any existing Lender is increasing its Revolving Commitment or making an initial  Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the  case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto)  purchase from the other Revolving Lenders its Revolving Commitment Percentage or, in the case of a  Revolving Lender increasing its Revolving Commitment, the amount of the increase in its Revolving  Commitment Percentage (determined with respect to the Revolving Lenders’ respective Revolving  Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding  Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving  Lenders, in same day funds, an amount equal to the sum of (A) the portion of the outstanding principal  amount of such Revolving Loans to be purchased by such Revolving Lender, plus (B) the aggregate amount  of payments previously made by the other Revolving Lenders under Section 2.3.(j) that have not been  repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding  principal amount of such Revolving Loans.  The Borrower shall pay to the Revolving Lenders amounts  





 






  - 50 -  LEGAL02/40527467v10  payable, if any, to such Revolving Lenders under Section 4.4. as a result of the prepayment of any such  Revolving Loans.  Effecting the increase of the Revolving Commitments or the making of Additional Term  Loans under this Section is subject to the following conditions precedent:  (x) no Default or Event of Default  shall be in existence on the effective date of such increase in the Revolving Commitments or the making of  such Additional Term Loans, (y) the representations and warranties made or deemed made by the Borrower  and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and  correct in all material respects (except in the case of a representation or warranty qualified by materiality,  in which case such representation or warranty shall be true and correct in all respects) on the effective date  of such increase except to the extent that such representations and warranties expressly relate solely to an  earlier date (in which case such representations and warranties shall have been true and correct in all  material respects (except in the case of a representation or warranty qualified by materiality, in which case  such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and  except for changes in factual circumstances not prohibited hereunder, and (z)  the Administrative Agent  shall have received each of the following, in form and substance satisfactory to the Administrative Agent:   (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant  Secretary of (A) all partnership action taken by the Borrower to authorize such increase in the Revolving  Commitments or the borrowing of Additional Term Loans, as applicable, and (B) all corporate or other  necessary action taken by the Guarantor authorizing the guaranty of such increase in the Revolving  Commitments or the borrowing of Additional Term Loans, as applicable; (ii) if requested by the  Administrative Agent, an opinion of counsel to the Loan Parties, and addressed to the Administrative Agent  and the Lenders covering such matters as reasonably requested by the Administrative Agent; (iii) in the  case of an increase in the Revolving Commitments, new Revolving Notes executed by the Borrower,  payable to any new Revolving Lenders and replacement Revolving Notes executed by the Borrower,  payable to any existing Revolving Lenders increasing their Revolving Commitments, in the amount of such  Revolving Lender’s Revolving Commitment at the time of the effectiveness of the applicable increase in  the aggregate amount of the Revolving Commitments (in each case unless any such Revolving Lender  requests not to receive such a note); and (iv) in the case of the making of Additional Term Loans, new Term  Notes executed by the Borrower, payable to any new Term Loan Lenders and replacement Term Notes  executed by the Borrower, payable to any existing Term Loan Lenders increasing their Term Loans, in the  amount of such Term Loan Lender’s Term Loan (in each case unless any such Term Loan Lender requests  not to receive such a Note).  In connection with any increase in the aggregate amount of the Revolving  Commitments or the making of any Additional Term Loans pursuant to this Section any Lender becoming  a party hereto shall (1) execute such documents and agreements as the Administrative Agent may  reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside  of the United States of America, provide to the Administrative Agent, its name, address, tax identification  number and/or such other information as shall be necessary for the Administrative Agent to comply with  “know your customer” and anti-money laundering rules and regulations, including without limitation, the  Patriot Act.    Section 2.17.  Funds Transfer Disbursements.   The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan  made by the Lenders or any of their Affiliates pursuant to the Loan Documents as requested by an  authorized representative of the Borrower to any of the accounts designated in the Disbursement Instruction  Agreement.      Section 2.18.  Reallocations on Effective Date.   Simultaneously with the effectiveness of this Agreement, the Revolving Commitments of each of  the Revolving Lenders as existing immediately prior to the Effective Date, shall be reallocated among the  Revolving Lenders so that the Revolving Commitments are held by the Revolving Lenders as set forth on  





 






  - 51 -  LEGAL02/40527467v10  Schedule I attached hereto.  To effect such reallocations each Revolving Lender who either had no  Revolving Commitment prior to the effectiveness of this Agreement or whose Revolving Commitment  upon the effectiveness of this Agreement exceeds its Revolving Commitment immediately prior to the  effectiveness of this Agreement (each an “Assignee Revolving Lender”) shall be deemed to have purchased  all right, title and interest in, and all obligations in respect of, the Revolving Commitments from the  Revolving Lenders whose Revolving Commitments upon the effectiveness of this Agreement are less than  their respective Revolving Commitment immediately prior to the effectiveness of this Agreement (each an  “Assignor Revolving Lender”), so that the Revolving Commitments of the Revolving Lenders will be held  by the Revolving Lenders as set forth on Schedule I.  Such purchases shall be deemed to have been effected  by way of, and subject to the terms and conditions of, Assignment and Assumptions without the payment  of any related assignment fee, and, except for Notes to be provided to the Assignor Lenders and Assignee  Lenders in the principal amount of their respective Revolving Commitments, no other documents or  instruments shall be, or shall be required to be, executed in connection with such assignments (all of which  are hereby waived).  The Assignor Lenders, the Assignee Lenders and the other Lenders shall make such  cash settlements among themselves, through the Administrative Agent, as the Administrative Agent may  direct (after giving effect to the making of any Loans to be made on the Effective Date and any netting  transactions effected by the Administrative Agent) with respect to such reallocations and assignments so  that the aggregate outstanding principal amount of Revolving Loans shall be held by the Revolving Lenders  pro rata in accordance with the amount of the Revolving Commitments as set forth on Schedule I.    ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS  Section 3.1.  Payments.   (a) Payments by Borrower.  Except to the extent otherwise provided herein, all payments of  principal, interest, Fees and other amounts to be made by the Borrower under this Agreement, the Notes or  any other Loan Document shall be made in Dollars, in immediately available funds, without setoff,  deduction or counterclaim (excluding Taxes required to be withheld pursuant to Section 3.10.), to the  Administrative Agent at the Principal Office, not later than 1:00 p.m. Central time on the date on which  such payment shall become due (each such payment made after such time on such due date to be deemed  to have been made on the next succeeding Business Day).  Subject to Section 10.5., the Borrower shall, at  the time of making each payment under this Agreement or any other Loan Document, specify to the  Administrative Agent the amounts payable by the Borrower hereunder to which such payment is to be  applied.  Each payment received by the Administrative Agent for the account of a Lender under this  Agreement or any Note shall be paid promptly to such Lender by wire transfer of immediately available  funds in accordance with the wiring instructions provided by such Lender to the Administrative Agent from  time to time, for the account of such Lender at the applicable Lending Office of such Lender.  Each payment  received by the Administrative Agent for the account of an Issuing Bank under this Agreement shall be  paid promptly to such Issuing Bank by wire transfer of immediately available funds in accordance with the  wiring instructions provided by such Issuing Bank to the Administrative Agent from time to time, for the  account of such Issuing Bank.  In the event the Administrative Agent fails to pay such amounts to such  Lender or such Issuing Bank, as the case may be, within one Business Day of receipt of such amounts, the  Administrative Agent shall pay interest on such amount until paid at a rate per annum equal to the Federal  Funds Rate from time to time in effect.  If the due date of any payment under this Agreement or any other  Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to  the next succeeding Business Day and interest shall continue to accrue at the rate, if any, applicable to such  payment for the period of such extension.     (b) Presumptions Regarding Payments by Borrower.  Unless the Administrative Agent shall  have received notice from the Borrower prior to the date on which any payment is due to the Administrative  Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such  





 






  - 52 -  LEGAL02/40527467v10  payment, the Administrative Agent may assume that the Borrower has made such payment on such date in  accordance herewith and may (but shall not be obligated to), in reliance upon such assumption, distribute  to the applicable Lenders or the Issuing Banks, as the case may be, the amount due.  In such event, if the  Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as  the case may be, severally agrees to repay to such Administrative Agent on demand that amount so  distributed to such Lender or such 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  the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation.      Section 3.2.  Pro Rata Treatment.   Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders  under Section 2.1.(a) and 2.3.(e) shall be made from the Revolving Lenders, each payment of the fees under  Section 3.5.(b), the first sentence of 3.5.(c) and Section 3.5.(d) shall be made for the account of the  Revolving Lenders, and each termination or reduction of the amount of the Revolving Commitments under  Section 2.12. shall be applied to the respective Revolving Commitments of the Revolving Lenders, pro rata  according to the amounts of their respective Revolving Commitments; (b) each payment or prepayment of  principal of a Class of Loans shall be made for the account of the Lenders of such Class pro rata in  accordance with the respective unpaid principal amounts of the Loans of such Class held by them, provided  that, subject to Section 3.9., if immediately prior to giving effect to any such payment in respect of any  Revolving Loans the outstanding principal amount of the Revolving Loans shall not be held by the  Revolving Lenders pro rata in accordance with their respective Revolving Commitments in effect at the  time such Loans were made, then such payment shall be applied to the Revolving Loans in such manner as  shall result, as nearly as is practicable, in the outstanding principal amount of the Revolving Loans being  held by the Revolving Lenders pro rata in accordance with their respective Revolving Commitments;  (c) each payment of interest on a Class of Loans shall be made for the account of the Lenders of such Class  pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective  Class of Lenders; (d) the Conversion and Continuation of Loans of a particular Class and Type (other than  Conversions provided for by Sections 4.1.(c) and 4.5.) shall be made pro rata among the Lenders of such  Class according to the amounts of their Loans of such Class and the then current Interest Period for each  Lender’s portion of each Loan of such Type shall be coterminous; (e) [reserved]; and (f) the Revolving  Lenders’ participation in, and payment obligations in respect of, Letters of Credit under Section 2.3., shall  be in accordance with their respective Revolving Commitment Percentages.        Section 3.3.  Sharing of Payments, Etc.    If a Lender shall obtain payment of any principal of, or interest on, any Loan of a Class made by it  to the Borrower under this Agreement or shall obtain payment on any other Obligation owing by the  Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim  or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made  by or on behalf of the Borrower or any other Loan Party to a Lender (other than any payment in respect of  Specified Derivatives Obligations) not in accordance with the terms of  this Agreement and such payment  should be distributed to the Lenders of the same Class as such Lender in accordance with Section 3.2. or  Section 10.5., as applicable, such Lender shall promptly purchase from the other Lenders of such Class  participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such  Class made by the other Lenders of such Class or other Obligations owed to such other Lenders in such  amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the  Lenders of such Class shall share the benefit of such payment (net of any reasonable expenses which may  actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with the  requirements of Section 3.2. or Section 10.5., as applicable.  To such end, all the Lenders of such Class  





 






  - 53 -  LEGAL02/40527467v10  shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if  such payment is rescinded or must otherwise be restored.  The Borrower agrees that any Lender of such  Class so purchasing a participation (or direct interest) in the Loans or other Obligations owed to such other  Lenders of such Class may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with  respect to such participation as fully as if such Lender were a direct holder of Loans of such Class in the  amount of such participation.  Nothing contained herein shall require any Lender to exercise any such right  or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such right with  respect to any other indebtedness or obligation of the Borrower.     Section 3.4.  Several Obligations.   No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform  any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender  to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve  the obligation of any other Lender to make any Loan or to perform any other obligation to be made or  performed by such other Lender.    Section 3.5.  Fees.   (a) Closing Fee.  On the Effective Date, the Borrower agrees to pay to the Administrative  Agent and each Lender all loan fees as have been agreed to in writing by the Borrower and the  Administrative Agent, which are then due and payable.     (b) Facility Fee.  During the period from the Effective Date to but excluding the Revolving  Termination Date, the Borrower agrees to pay to the Administrative Agent for the account of the Revolving  Lenders a facility fee equal to the daily aggregate amount of the Revolving Commitments (whether or not  utilized) times a rate per annum equal to the Applicable Facility Fee.  Such fee shall be payable quarterly  in arrears on the first day of each January, April, July and October during the term of this Agreement and  on the Revolving Termination Date or any earlier date of termination of the Revolving Commitments or  reduction of the Revolving Commitments to zero.  The Borrower acknowledges that the fee payable under  this subsection is a bona fide commitment fee and is intended as reasonable compensation to the Revolving  Lenders for committing to make funds available to the Borrower as described herein and for no other  purposes.     (c) Letter of Credit Fees.  The Borrower agrees to pay to the Administrative Agent for the  account of each Revolving Lender a letter of credit fee at a rate per annum equal to the Applicable Margin  for Revolving Loans that are LIBOR Loans times the daily average Stated Amount of each Letter of Credit  for the period from and including the date of issuance of such Letter of Credit (x) to and including the date  such Letter of Credit expires or is cancelled or (y) to but excluding the date such Letter of Credit is drawn  in full; provided, however, if any of the Obligations are bearing interest as the Post-Default rate in  accordance with Section 2.5.(a), such letter of credit fees shall accrue at the Post-Default Rate.  The fees  provided for in this subsection shall be nonrefundable and payable, in the case of the fee provided for in the  first sentence, in arrears (i) quarterly on the first day of January, April, July and October, (ii) on the  Revolving Termination Date, (iii) on the date the Revolving Commitments are terminated or reduced to  zero and (iv) thereafter from time to time on demand of the Administrative Agent.  The Borrower shall pay  directly to the applicable Issuing Bank from time to time on demand all commissions, charges, costs and  expenses in the amounts customarily charged or incurred by the applicable Issuing Bank from time to time  in like circumstances with respect to the issuance, amendment, renewal or extension of any Letter of Credit  issued by such Issuing Bank or any other transaction relating thereto.    





 






  - 54 -  LEGAL02/40527467v10   (d) Extension Fee.  If the Borrower exercises its right to extend the Revolving Termination  Date in accordance with Section 2.13., the Borrower shall pay to the Administrative Agent for the account  of each Revolving Lender a fee equal to seven and one-half one-hundredths of one percent (0.075%) of the  amount of such Lender’s Revolving Commitment (whether or not utilized) payable in connection with each  such extension.       (e) Administrative and Other Fees.  The Borrower agrees to pay the administrative and other  fees of the Administrative Agent and the Lead Arrangers as provided in the Fee Letter and as may be  otherwise agreed to in writing from time to time by the Borrower and the Administrative Agent.    Section 3.6.  Computations.   Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any other  Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of  days elapsed.    Section 3.7.  Usury.   In no event shall the amount of interest due or payable on the Loans or other Obligations exceed  the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower  or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment of  principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have  such excess sum returned to it forthwith.  It is the express intent of the parties hereto that the Borrower not  pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that  which may be lawfully paid by the Borrower under Applicable Law.  The parties hereto hereby agree and  stipulate that the only charge imposed upon the Borrower for the use of money in connection with this  Agreement is and shall be the interest specifically described in Section 2.5.(a)(i) and (ii).  Notwithstanding  the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication fees, closing  fees, facility fees, extension fees, letter of credit fees, underwriting fees, default charges, funding or  “breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid  by the Administrative Agent or any Lender to third parties or for damages incurred by the Administrative  Agent or any Lender, in each case, in connection with the transactions contemplated by this Agreement and  the other Loan Documents, are charges made to compensate the Administrative Agent or any such Lender  for underwriting or administrative services and costs or losses performed or incurred, and to be performed  or incurred, by the Administrative Agent and the Lenders in connection with this Agreement and shall under  no circumstances be deemed to be charges for the use of money.  All charges other than charges for the use  of money shall be fully earned and nonrefundable when due.    Section 3.8.  Statements of Account.   The Administrative Agent will account to the Borrower monthly with a statement of Loans, accrued  interest and Fees, charges and payments made pursuant to this Agreement and the other Loan Documents,  and such account rendered by the Administrative Agent shall be deemed conclusive upon the Borrower  absent manifest error.  The failure of the Administrative Agent to deliver such a statement of accounts shall  not relieve or discharge the Borrower from any of its obligations hereunder.    Section 3.9.  Defaulting Lenders.   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:  





 






  - 55 -  LEGAL02/40527467v10     (a) 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  definitions of Requisite Lenders and Requisite Class Lenders and as set forth in Section 12.6.     (b) Defaulting Lender Waterfall.  Any payment of principal, interest, Fees or other amounts  received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or  mandatory, at maturity, pursuant to Article X. or otherwise) or received by the Administrative Agent from  a Defaulting Lender pursuant to Section 3.3. 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, in the case of a Defaulting Lender that is a  Revolving Lender, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such  Defaulting Lender in accordance with subsection (e) below; third, as the Borrower may request (so long as  no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting  Lender has failed to fund its portion thereof as required by this Agreement, as determined by the  Administrative Agent; fourth, in the case of a Defaulting Lender that is a Revolving Lender, if so  determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro  rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to  Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with  respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in  accordance with subsection (e) below; fifth, to the payment of any amounts owing to the Lenders or the  Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or  any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its  obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of  any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained  by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its  obligations under this Agreement; and seventh, 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 of any Class or amounts owing by such Defaulting Lender under Section 2.3.(j) in respect of  Letters of Credit (such amounts “L/C Disbursements”), 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 Article V. were satisfied or waived, such payment shall be applied  solely to pay the Loans of such Class of, and L/C Disbursements owed to, all Non-Defaulting Lenders of  the applicable Class on a pro rata basis prior to being applied to the payment of any Loans of, or L/C  Disbursements owed to, such Defaulting Lender until such time as all Loans of such Class and, as  applicable, funded and unfunded participations in Letter of Credit Liabilities, are held by the Lenders pro  rata in accordance with their respective Revolving Commitment Percentages (determined without giving  effect to the immediately following subsection (d)) and all Term Loan are held by the Term Loan Lenders  pro rata as if there had been no Term Loan Lenders that are Defaulting Lenders.  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 subsection shall be deemed  paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.     (c) Certain Fees.     (i) No Defaulting Lender that is a Revolving Lender shall be entitled to receive any  Fee payable under Section 3.5.(b) for any period during which that Lender is a Defaulting Lender  (and the Borrower shall not be required to pay any such Fee that otherwise would have been  required to have been paid to that Defaulting Lender).      





 






  - 56 -  LEGAL02/40527467v10   (ii) Each Defaulting Lender that is a Revolving Lender shall be entitled to receive  payable under Section 3.5.(c) for any period during which that Lender is a Defaulting Lender only  to the extent allocable to its Revolving Commitment Percentage of the stated amount of Letters of  Credit for which it has provided Cash Collateral pursuant to the immediately following  subsection (e).       (iii) With respect to any Fee not required to be paid to any Defaulting Lender pursuant  to the immediately preceding clause (ii), the Borrower shall (x) pay to each Non-Defaulting Lender  that portion of any such Fee otherwise payable to such Defaulting Lender with respect to such  Defaulting Lender’s participation in Letter of Credit Liabilities that has been reallocated to such  Non-Defaulting Lender pursuant to the immediately following subsection (d), (y) pay to each  Issuing Bank the amount of any such Fee otherwise payable to such Defaulting Lender to the extent  allocable to such Issuing Bank’s to such Defaulting Lender, and (z) not be required to pay the  remaining amount of any such Fee.     (d) Reallocation of Participations to Reduce Fronting Exposure.  In the case of a Defaulting  Lender that is a Revolving Lender, all or any part of such Defaulting Lender’s participation in Letter of  Credit Liabilities shall be reallocated among the Non-Defaulting Lenders that are Revolving Lenders  in  accordance with their respective Revolving Commitment Percentages (determined without regard to such  Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause  the aggregate Revolving Credit Exposure of any Non-Defaulting Lender that is a Revolving Lender to  exceed such Non-Defaulting Lender’s Revolving Commitment.  Subject to Section 12.20, 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.     (e) Cash Collateral.     (i) If the reallocation described in the immediately preceding subsection (d) above  cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or  remedy available to it hereunder or under law, Cash Collateralize the Issuing Banks’ Fronting  Exposure in accordance with the procedures set forth in this subsection.     (ii) At any time that there shall exist a Defaulting Lender that is a Revolving Lender,  within 1 Business Day following the written request of the Administrative Agent or the applicable  Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize such  Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving  effect to the immediately preceding subsection (d) and any Cash Collateral provided by such  Defaulting Lender) in an amount not less than the aggregate Fronting Exposure of such Issuing  Bank with respect to Letters of Credit issued and outstanding at such time.     (iii) The Borrower, and to the extent provided by any Defaulting Lender that is a  Revolving Lender, such Defaulting Lender, hereby grant to the Administrative Agent, for the  benefit of the Issuing Banks, and agree to maintain, a first priority security interest in all such Cash  Collateral as security for the obligation of Defaulting Lenders that are Revolving Lenders to fund  participations in respect of Letter of Credit Liabilities, to be applied pursuant to the immediately  following clause (iv).  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  Banks as herein provided, or that the total amount of such Cash Collateral is less than the aggregate  Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at  





 






  - 57 -  LEGAL02/40527467v10  such time, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide  to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such  deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender that is a  Revolving Lender).     (iv) Notwithstanding anything to the contrary contained in this Agreement, Cash  Collateral provided under this Section in respect of Letters of Credit shall be applied to the  satisfaction of the obligation of a Defaulting Lender to fund participations in respect of Letter of  Credit Liabilities (including, as to Cash Collateral provided by a Defaulting Lender, any interest  accrued on such obligation) for which the Cash Collateral was so provided, prior to any other  application of such property as may otherwise be provided for herein.     (v) Cash Collateral (or the appropriate portion thereof) provided to reduce an Issuing  Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this  subsection following (x) the elimination of the applicable Fronting Exposure (including by the  termination of Defaulting Lender status of the applicable Lender), or (y) the determination by the  Administrative Agent and the applicable Issuing Bank that there exists excess Cash Collateral;  provided that, subject to the immediately preceding subsection (b), the Person providing Cash  Collateral and the applicable Issuing Bank may (but shall not be obligated to) agree that Cash  Collateral shall be held to support future anticipated Fronting Exposure or other obligations and  provided further that to the extent that such Cash Collateral was provided by the Borrower, such  Cash Collateral shall remain subject to the security interest granted pursuant to the Loan  Documents.     (f) Defaulting Lender Cure.  If the Borrower and the Administrative Agent, and solely in the  case of a Defaulting Lender that is a Revolving Lender, the Issuing Banks, agree in writing that a Lender is  no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of  the effective date specified in such notice and subject to any conditions set forth therein (which, in the case  of a Defaulting Lender that is a Revolving Lender, may include arrangements with respect to any Cash  Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of  the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to  cause, as applicable, (i) the Revolving Loans and funded and unfunded participations in Letters of Credit  to be held pro rata by the Revolving Lenders in accordance with their respective Revolving Commitment  Percentages (determined without giving effect to the immediately preceding subsection (d)) and (ii) the  Term Loans to be held by the Term Loan Lenders pro rata in as if there had been no Term Loan Lenders  that were Defaulting Lenders, whereupon such Lender will cease to be a Defaulting Lender; provided that  no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf  of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent  otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender  will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having  been a Defaulting Lender.     (g) New Letters of Credit.  So long as any Revolving Lender is a Defaulting Lender, each  Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is  satisfied that it will have no Fronting Exposure after giving effect thereto.    Section 3.10.  Taxes.   (a) Issuing Banks.  For purposes of this Section, the term “Lender” includes the Issuing Banks  and the Administrative Agent, the term “Applicable Law” includes FATCA and the term “IRS Form  W-8BEN” includes both IRS Form W-8BEN and IRS Form W-8BEN-E, as applicable.  





 






  - 58 -  LEGAL02/40527467v10     (b) Payments Free of Taxes.  Any and all payments by or on account of any obligation of the  Borrower or any other Loan Party under any Loan Document shall be made without deduction or  withholding for any Taxes, except as required by Applicable Law.  If any Applicable Law (as determined  in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of  any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be  entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld  to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased  as necessary so that after such deduction or withholding has been made (including such deductions and  withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an  amount equal to the sum it would have received had no such deduction or withholding been made.     (c) Payment of Other Taxes by the Borrower.  The Borrower and the other Loan Parties shall  timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of  the Administrative Agent timely reimburse it for the payment of, any Other Taxes.     (d) Indemnification by the Borrower.  Without duplication of any obligation under the  preceding subsections (b) or (c), the Borrower and the other Loan Parties 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 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 the Borrower or another Loan Party has not already indemnified the Administrative  Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan  Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of  Section 12.5. 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 subsection.  The provisions of this subsection shall continue to  inure to the benefit of an Administrative Agent following its resignation as Administrative Agent.     (f) Evidence of Payments.  As soon as practicable after any payment of Taxes by the Borrower  or any other Loan Party to a Governmental Authority pursuant to this Section, the Borrower or such other  Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by  such Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.     (g) Status of Lenders.    





 






  - 59 -  LEGAL02/40527467v10     (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax  with respect to payments made under any Loan Document shall deliver to the Borrower and the  Administrative Agent, at the time or times reasonably requested by the Borrower or the  Administrative Agent, such properly completed and executed documentation reasonably requested  by the Borrower or the Administrative Agent as will permit such payments to be made without  withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested  by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by  Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will  enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject  to backup withholding or information reporting requirements.  Notwithstanding anything to the  contrary in the preceding two sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in the immediately following  clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the Lender’s reasonable judgment such  completion, execution or submission would subject such Lender to any material unreimbursed cost  or expense or would materially prejudice the legal or commercial position of such Lender.     (ii) Without limiting the generality of the foregoing, in the event that the Borrower is  a U.S. Person:     (A) any Lender that is a U.S. Person shall deliver to the Borrower and the  Administrative Agent on or prior to the date on which such Lender becomes a Lender under  this Agreement (and from time to time thereafter upon the reasonable request of the  Borrower or the Administrative Agent), an electronic copy (or an original if requested by  the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor  form) certifying that such Lender is exempt from U.S. federal backup withholding tax;     (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to the Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the Borrower or the Administrative Agent), whichever of the following is  applicable:     (I) 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, an electronic copy (or an original if requested  by the Borrower or the Administrative Agent) of an executed 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;     (II) an electronic copy (or an original if requested by the Borrower or  the Administrative Agent) of an executed IRS Form W-8ECI;     (III) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Internal Revenue  Code, (x) a certificate substantially in the form of Exhibit N-1 to the effect that  such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)  





 






  - 60 -  LEGAL02/40527467v10  of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within  the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue  Code (a “U.S. Tax Compliance Certificate”) and (y) an electronic copy (or an  original if requested by the Borrower or the Administrative Agent) of IRS Form  W-8BEN; or     (IV) to the extent a Foreign Lender is not the beneficial owner, an  electronic copy (or an original if requested by the Borrower or the Administrative  Agent) of an executed 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 N-2 or Exhibit N-3, IRS Form W-9, and/or other certification documents  from each beneficial owner, as applicable; provided that if the Foreign Lender is a  partnership and one or more direct or indirect partners of such Foreign Lender are  claiming the portfolio interest exemption, such Foreign Lender may provide a U.S.  Tax Compliance Certificate substantially in the form of Exhibit N-4 on behalf of  each such direct and indirect partner;     (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to the Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the Borrower or the Administrative Agent), an electronic copy (or an original if  requested by the Borrower or the Administrative Agent) of any other form prescribed by  Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal  withholding Tax, duly completed, together with such supplementary documentation as may  be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to  determine the withholding or deduction required to be made; and     (D) if a payment made to a Recipient under any Loan Document would be  subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail  to comply with the applicable reporting requirements of FATCA (including those  contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such  Recipient shall deliver to the Borrower and the Administrative Agent at the time or times  prescribed by Applicable Law and at such time or times reasonably requested by the  Borrower or the Administrative Agent such documentation prescribed by Applicable Law  (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and  such additional documentation reasonably requested by the Borrower or the Administrative  Agent as may be necessary for the Borrower and the Administrative Agent to comply with  their obligations under FATCA and to determine that such Recipient has complied with  such Recipient’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.    (iii)  If an Administrative Agent is a United States person (as defined in Section  7701(a)(30) of the Code), upon the request of the Borrower, it shall deliver to the Borrower on or  prior to the date on which it becomes an Administrative Agent under this Agreement with two duly  completed copies of Form W-9.   If the Administrative Agent is not a United States person (as  defined in Section 7701(a)(30) of the Code), upon the request of the Borrower, it shall provide to  the Borrower on or prior to the date on which it becomes an Administrative Agent under this  Agreement (and from time to time thereafter upon the reasonable request of the Borrower): (A) two  





 






  - 61 -  LEGAL02/40527467v10  executed copies of Form W-8ECI with respect to any amounts payable to the Administrative Agent  for its own account, and (B) two executed copies of Form W-8IMY with respect to any amounts  payable to the Administrative Agent for the account of others, certifying that it is a “U.S. branch”  and that the payments it receives for the account of others are not effectively connected with the  conduct of its trade or business within the United States and that it is using such form as evidence  of its agreement with the Borrower to be treated as a United States person with respect to such  payments (and the Borrower and the Administrative Agent agree to so treat the Administrative  Agent as a United States person with respect to such payments as contemplated by Section 1.1441- 1(b)(2)(iv) of the United States Treasury Regulations).    Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete  or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and  the Administrative Agent in writing of its legal inability to do so.     (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in  good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this  Section (including by the payment of additional amounts pursuant to this Section), 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 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 subsection  (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 subsection, in no event will the indemnified party be  required to pay any amount to an indemnifying party pursuant to this subsection 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 subsection shall not be construed to require any indemnified  party to make available its Tax returns (or any other information relating to its Taxes that it deems  confidential) to the indemnifying party or any other Person.     (i) Survival.  Each party’s obligations under this Section 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.    ARTICLE IV. YIELD PROTECTION, ETC.  Section 4.1.  Additional Costs; Capital Adequacy.   (a) Capital Adequacy.  If any Lender determines that any Regulatory Change affecting such  Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital  or liquidity ratios or requirements, has or would have the effect of reducing the rate of return on such  Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this  Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of Credit  held by, such Lender, to a level below that which such Lender or such Lender’s holding company could  have achieved but for such Regulatory Change (taking into consideration such Lender’s policies and the  policies of such Lender’s holding company with respect to capital adequacy), then from time to time the  





 






  - 62 -  LEGAL02/40527467v10  Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or  such Lender’s holding company for any such reduction suffered.     (b) Additional Costs.  In addition to, and not in limitation of the immediately preceding  subsection (a), the Borrower shall promptly pay to the Administrative Agent for the account of a Lender  from time to time such amounts as such Lender may determine to be necessary to compensate such Lender  for any costs incurred by such Lender that it determines are attributable to its making or maintaining of any  LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any amount  receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of  such LIBOR Loans or such obligation or the maintenance by such Lender of capital in respect of its LIBOR  Loans or its Commitment (such increases in costs and reductions in amounts receivable being herein called  “Additional Costs”), resulting from any Regulatory Change that:     (i) changes the basis of taxation of any amounts payable to such Lender under this  Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or its  Commitment (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the  definition of Excluded Taxes and Connection Income Taxes);     (ii) imposes or modifies any reserve, special deposit, compulsory loan, insurance  charge or similar requirements (other than Regulation D of the Board of Governors of the Federal  Reserve System or other similar reserve requirement applicable to any other category of liabilities  or category of extensions of credit or other assets by reference to which the interest rate on LIBOR  Loans is determined to the extent utilized when determining LIBOR for such Loans) relating to any  extensions of credit or other assets of, or any deposits with or other liabilities of, or other credit  extended by, or any other acquisition of funds by such Lender (or its parent corporation), or any  commitment of such Lender (including, without limitation, the Commitment of such Lender  hereunder); or     (iii) imposes on any Lender or the London interbank market any other condition, cost  or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender.     (c) Lender’s Suspension of LIBOR Loans.  Without limiting the effect of the provisions of the  immediately preceding subsections (a) and (b), if by reason of any Regulatory Change, any Lender either  (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a  category of deposits or other liabilities of such Lender that includes deposits by reference to which the  interest rate on LIBOR Loans is determined as provided in  this Agreement or a category of extensions of  credit or other assets of such Lender that includes LIBOR Loans or (ii) becomes subject to restrictions on  the amount of such a category of liabilities or assets that it may hold, then, if such Lender so elects by notice  to the Borrower (with a copy to the Administrative Agent), the obligation of such Lender to make or  Continue, or to Convert Base Rate Loans into, LIBOR Loans hereunder shall be suspended until such  Regulatory Change ceases to be in effect (in which case the provisions of Section 4.5. shall apply).     (d) Additional Costs in Respect of Letters of Credit.  Without limiting the obligations of the  Borrower under the preceding subsections of this Section (but without duplication), if as a result of any  Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued  by any Governmental Authority there shall be imposed, modified or deemed applicable any Tax (other than  Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and  Connection Income Taxes), reserve, special deposit, capital adequacy or similar requirement against or with  respect to or measured by reference to Letters of Credit and the result shall be to increase the cost to the  applicable Issuing Bank of issuing (or any Revolving Lender of purchasing participations in) or maintaining  its obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount  





 






  - 63 -  LEGAL02/40527467v10  receivable by an Issuing Bank or any Revolving Lender hereunder in respect of any Letter of Credit, then,  upon demand by such Issuing Bank or such Lender, the Borrower shall promptly, and in any event within  1 Business Day of demand, pay to such Issuing Bank or, in the case of such Lender, to the Administrative  Agent for the account of such Lender, from time to time as specified by such Issuing Bank or such Lender,  such additional amounts as shall be sufficient to compensate such Issuing Bank or such Lender for such  increased costs or reductions in amount.     (e) Notification and Determination of Additional Costs.  Each of the Administrative Agent,  each Issuing Bank and each Lender, as the case may be, agrees to notify the Borrower (and in the case of  the Issuing Bank or a Lender, to notify the Administrative Agent) in writing of any event occurring after  the Agreement Date entitling the Administrative Agent, the applicable Issuing Bank or such Lender to  compensation under any of the preceding subsections of this Section as promptly as practicable; provided,  however, that the failure of the Administrative Agent, any Issuing Bank or any Lender to give such written  notice shall not release the Borrower from any of its obligations hereunder.  The Administrative Agent,  each Issuing Bank and each Lender, as the case may be, agrees to furnish to the Borrower (and in the case  of an Issuing Bank or a Lender to the Administrative Agent as well) a certificate setting forth the basis and  amount of each request for compensation under this Section.  Determinations by the Administrative Agent,  such Issuing Bank or such Lender, as the case may be, of the effect of any Regulatory Change shall be  conclusive and binding for all purposes, absent manifest error.  The Borrower shall pay the Administrative  Agent, any such Issuing Bank and or any such Lender, as the case may be, the amount shown as due on any  such certificate within 30 days after receipt thereof.    (f) Delay in Requests.  Failure or delay on the part of any Lender or an Issuing Bank to demand  compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s  right to demand such compensation; provided that the Borrower shall not be required to compensate a  Lender or an Issuing Bank pursuant to this Section 4.1. for any increased costs incurred or reductions  suffered more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be,  notifies the Borrower of the Regulatory Change giving rise to such increased costs or reductions, and of  such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the  Regulatory Change giving rise to such increased costs or reductions is retroactive, then the 180 days period  referred to above shall be extended to include the period of retroactive effect thereof).    Section 4.2.  Suspension of LIBOR Loans.  (a) Circumstances Affecting LIBOR Rate Availability.  Subject to clause (c) below, in  connection with any request for a LIBOR Loan or a conversion to or continuation of a LIBOR Loan or  otherwise, if for any reason (i) Dollar deposits are not being offered to banks in the London interbank  eurodollar market for the applicable amount and Interest Period of such Loan, (ii) reasonable and adequate  means do not exist for the ascertaining LIBOR for such Interest Period with respect to a proposed LIBOR  Loan or (iii) the Requisite Lenders shall determine that LIBOR does not adequately and fairly reflect the  cost to such Lenders of maintaining such Loans during such Interest Period, then the Administrative Agent  shall promptly give notice thereof to the Borrower.  Thereafter, until the Administrative Agent notifies the  Borrower that such circumstances no longer exist, the obligation of the Lenders to make LIBOR Loans and  the right of the Borrower to convert any Loan to or continue any Loan as a LIBOR Loan shall be suspended  until the Administrative Agent revokes any such notice.  Upon receipt of such notice, the Borrower may  revoke any pending request for a LIBOR Loan or the conversion to or continuation of LIBOR Loans and  the Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding principal  amount of each such LIBOR Loan together with accrued interest thereon (subject to Section 3.7), on the  last day of the then current Interest Period applicable to such LIBOR Loan; or (B) convert the then  outstanding principal amount of each such LIBOR Loan to a Base Rate Loan (with Base Rate determined  other than by reference to LIBOR) as of the last day of such Interest Period.  





 






  - 64 -  LEGAL02/40527467v10    (b) Benchmark Replacement Setting.     (i) Benchmark Replacement.     (A) Notwithstanding anything to the contrary herein or in any other Loan  Document (and any Derivatives Contract shall be deemed not to be a “Loan Document” for  purposes of this Section 4.2.(b)) if a Benchmark Transition Event or an Early Opt-in Election, as  applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time  in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is  determined in accordance with clause (a)(1) or (a)(2) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace  such Benchmark for all purposes hereunder and under any Loan Document in respect of such  Benchmark setting and subsequent Benchmark settings without any amendment to, or further action  or consent of any other party to, this Agreement or any other Loan Document and (y) if a  Benchmark Replacement is determined in accordance with clause (a)(3) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement  will replace such Benchmark for all purposes hereunder and under any Loan Document in respect  of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice  of such Benchmark Replacement is provided to the Lenders without any amendment to, or further  action or consent of any other party to, this Agreement or any other Loan Document so long as the  Administrative Agent has not received, by such time, written notice of objection to such Benchmark  Replacement from Lenders comprising the Requisite Lenders.        (B) Notwithstanding anything to the contrary herein or in any other Loan  Document, if a Term SOFR Transition Event and its related Benchmark Replacement Date have  occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then  the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes  hereunder or under any Loan Document in respect of such Benchmark setting and subsequent  Benchmark settings, without any amendment to, or further action or consent of any other party to,  this Agreement or any other Loan Document; provided that this clause (B) shall not be effective  unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR  Notice.  For the avoidance of doubt, the Administrative Agent shall not be required to deliver a  Term SOFR Notice after a Term SOFR Transition Event and may elect or not elect to do so in its  sole discretion.    (ii) Benchmark Replacement Conforming Changes. 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 or any other Loan Document.    (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent  will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event,  a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark  Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any  Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a  Benchmark pursuant to Section 4.2.(b)(iv) below and (E) the commencement or conclusion of any  Benchmark Unavailability Period.  Any determination, decision or election that may be made by the  Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.2.(b),  





 






  - 65 -  LEGAL02/40527467v10  including any determination with respect to a tenor, rate or adjustment or of the occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or  any selection, will be conclusive and binding absent manifest error and may be made in its or their sole  discretion and without consent from any other party to this Agreement or any other Loan Document, except,  in each case, as expressly required pursuant to this Section 4.2.(b).    (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary  herein or in any other Loan Document, at any time (including in connection with the implementation of a  Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or USD  LIBOR) and either (1) any tenor for such Benchmark is not displayed on a screen or other information  service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public  statement or publication of information announcing that any tenor for such Benchmark is or will be no  longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any  Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if  a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or  information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer,  subject to an announcement that it is or will no longer be representative for a Benchmark (including a  Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period”  for all Benchmark settings at or after such time to reinstate such previously removed tenor.    (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a  borrowing of, conversion to or continuation of LIBOR Loans to be made, converted or continued during  any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any  such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark  Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor,  the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark,  as applicable, will not be used in any determination of the Base Rate.     (vi)  London Interbank Offered Rate Benchmark Transition Event.  On March 5, 2021,  the IBA, the administrator of the London interbank offered rate, and the FCA, the regulatory supervisor of  the IBA, made the Announcements that the final publication or representativeness date for (I) 1-week and  2-month London interbank offered rate tenor settings will be December 31, 2021 and (II) overnight, 1- month, 3-month, 6-month and 12-month London interbank offered rate tenor settings will be June 30, 2023.   No successor administrator for the IBA was identified in such Announcements.  The parties hereto agree  and acknowledge that the Announcements resulted in the occurrence of a Benchmark Transition Event with  respect to the London interbank offered rate pursuant to the terms of this Agreement and that any obligation  of the Administrative Agent to notify any parties of such Benchmark Transition Event pursuant to clause  (iii) of this Section 4.2.(b) shall be deemed satisfied.    Section 4.3.  Illegality.  Notwithstanding any other provision of this Agreement, if any Lender shall determine (which  determination shall be conclusive and binding) that it is unlawful for such Lender to honor its obligation to  make or maintain LIBOR Loans hereunder, then such Lender shall promptly notify the Borrower thereof  (with a copy of such notice to the Administrative Agent) and such Lender’s obligation to make or Continue,  or to Convert Loans of any other Type into, LIBOR Loans shall be suspended until such time as such Lender  may again make and maintain LIBOR Loans (in which case the provisions of Section 4.5. shall be  applicable).    





 






  - 66 -  LEGAL02/40527467v10  Section 4.4.  Compensation.   The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the  request of the Administrative Agent, such amount or amounts as the Administrative Agent shall determine  in its sole discretion shall be sufficient to compensate such Lender for any loss, cost or expense attributable  to:     (a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan,  or Conversion of a LIBOR Loan, made by such Lender for any reason (including, without  limitation, acceleration) on a date other than the last day of the Interest Period for such Loan; or     (b) any failure by the Borrower for any reason (including, without limitation, the  failure of any of the applicable conditions precedent specified in Section 5.2. to be satisfied, but  excluding any failure resulting from the operation of Section 4.2.) to borrow a LIBOR Loan from  such Lender on the date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan  or Continue a LIBOR Loan on the requested date of such Conversion or Continuation.    Not in limitation of the foregoing, such compensation shall include, without limitation, an amount equal to  the then present value of (A) the amount of interest that would have accrued on such LIBOR Loan for the  remainder of the Interest Period at the rate applicable to such LIBOR Loan, less (B) the amount of interest  that would accrue on the same LIBOR Loan for the same period if LIBOR were set on the date on which  such LIBOR Loan was repaid, prepaid or Converted or the date on which the Borrower failed to borrow,  Convert or Continue such LIBOR Loan, as applicable, calculating present value by using as a discount rate  LIBOR quoted on such date.  Upon the Borrower’s request, the Administrative Agent shall provide the  Borrower with a statement setting forth the basis for requesting such compensation and the method for  determining the amount thereof.  Any such statement shall be conclusive absent manifest error.    Section 4.5.  Treatment of Affected Loans.   If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate  Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(c), Section 4.2. or Section 4.3. then  such Lender’s LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of  the then current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by  Section 4.1.(c), Section 4.2., or Section 4.3. on such earlier date as such Lender or the Administrative  Agent, as applicable, may specify to the Borrower (with a copy to the Administrative Agent, as applicable))  and, unless and until such Lender or the Administrative Agent, as applicable, gives notice as provided below  that the circumstances specified in Section 4.1., Section 4.2. or Section 4.3. that gave rise to such  Conversion no longer exist:     (a) to the extent that such Lender’s LIBOR Loans have been so Converted, all  payments and prepayments of principal that would otherwise be applied to such Lender’s LIBOR  Loans shall be applied instead to its Base Rate Loans; and     (b) all Loans that would otherwise be made or Continued by such Lender as LIBOR  Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such  Lender that would otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans.    If such Lender or the Administrative Agent, as applicable, gives notice to the Borrower (with a copy to the  Administrative Agent, as applicable) that the circumstances specified in Section 4.1.(c), 4.2. or 4.3. that  gave rise to the Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist (which  such Lender or the Administrative Agent, as applicable, agrees to do promptly upon such circumstances  





 






  - 67 -  LEGAL02/40527467v10  ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, then such Lender’s  Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest  Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all  Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal  amounts, Types and Interest Periods) in accordance with their respective Commitments, in the case of  Revolving Loans, or the outstanding principal amount of Term Loans, in the case of Term Loans.    Section 4.6.  Affected Lenders.   If (a) a Lender requests compensation pursuant to Section 3.10. or 4.1., and the Requisite Lenders  are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to Continue, or  to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or 4.3. but  the obligation of the Requisite Lenders shall not have been suspended under such Sections, or (c) a Lender  becomes a Defaulting Lender or a Non-Consenting Lender, then, so long as there does not then exist any  Default or Event of Default, the Borrower may demand that such Lender (the “Affected Lender”), and upon  such demand the Affected Lender shall promptly, assign its Commitment, if any, and Loans to an Eligible  Assignee subject to and in accordance with the provisions of Section 12.5.(b) for a purchase price equal to  (x) the aggregate principal balance of all Loans then owing to the Affected Lender, plus (y) in the case of  an Affected Lender that is a Revolving Lender, the aggregate amount of payments previously made by the  Affected Lender under Section 2.3.(j) that have not been repaid, plus (z) any accrued but unpaid interest  and accrued but unpaid fees owing to the Affected Lender, or any other amount as may be mutually agreed  upon by such Affected Lender and Eligible Assignee.  Each of the Administrative Agent and the Affected  Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender under this  Section, but at no time shall the Administrative Agent, such Affected Lender nor any other Lender nor any  Titled Agent be obligated in any way whatsoever to initiate any such replacement or to assist in finding an  Eligible Assignee.  The exercise by the Borrower of its rights under this Section shall be at the Borrower’s  sole cost and expense and at no cost or expense to the Administrative Agent, the Affected Lender or any of  the other Lenders.  The terms of this Section shall not in any way limit the Borrower’s obligation to pay to  any Affected Lender compensation owing to such Affected Lender pursuant to this Agreement (including,  without limitation, pursuant to Sections 3.10., 4.1. or 4.4.) with respect to any period up to the date of  replacement.    Section 4.7.  Change of Lending Office.   Each Lender agrees that it will use reasonable efforts (consistent with its internal policy and legal  and regulatory restrictions) to designate an alternate Lending Office with respect to any of its Loans affected  by the matters or circumstances described in Sections 3.10., 4.1. or 4.3. to reduce the liability of the  Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to  such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no  obligation to designate a Lending Office located in the United States of America.    Section 4.8.  Assumptions Concerning Funding of LIBOR Loans.   Calculation of all amounts payable to a Lender under this Article shall be made as though such  Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant market bearing  interest at the rate applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR Loans  and having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may  fund each of its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be used only for  calculation of amounts payable under this Article.     





 






  - 68 -  LEGAL02/40527467v10  ARTICLE V. CONDITIONS PRECEDENT  Section 5.1.  Initial Conditions Precedent.   The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder,  whether as the making of a Loan or the issuance of a Letter of Credit, and the effectiveness of the  amendment and restatement of the Existing Credit Agreement, are subject to the satisfaction or waiver of  the following conditions precedent:     (a) The Administrative Agent shall have received each of the following, in form and substance  satisfactory to the Administrative Agent:     (i) counterparts of this Agreement executed by each of the parties hereto;     (ii) Notes executed by the Borrower, payable to each Lender (other than any Lender  that has requested that it not receive Notes) and complying with the terms of Section 2.11.(a);     (iii) the Guaranty executed by the Parent;     (iv) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the  Administrative Agent and the Lenders and in the form set forth in Exhibit J;     (v) the certificate or articles of incorporation or formation, articles of organization,  certificate of limited partnership, declaration of trust or other comparable organizational instrument  (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of  formation of such Loan Party;     (vi) a certificate of good standing (or certificate of similar meaning) with respect to  each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each  such Loan Party and certificates of qualification to transact business or other comparable  certificates issued as of a recent date by each Secretary of State (and any state department of  taxation, as applicable) of each state in which such Loan Party is required to be so qualified and  where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;     (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other  individual performing similar functions) of each Loan Party with respect to each of the officers of  such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party  is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the  Borrower Notices of Revolving Borrowing, the Notice of Term Borrowing, requests for Letters of  Credit, Notices of Conversion and Notices of Continuation;     (viii) copies certified by the Secretary or Assistant Secretary (or other individual  performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a  corporation, the operating agreement, if a limited liability company, the partnership agreement, if  a limited or general partnership, or other comparable document in the case of any other form of  legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan  Party to authorize the execution, delivery and performance of the Loan Documents to which it is a  party;     (ix) a Compliance Certificate calculated as of March 31, 2021 giving pro forma effect  to the transactions contemplated by this Agreement;  





 






  - 69 -  LEGAL02/40527467v10     (x) a completed Disbursement Instruction Agreement effective as of the Agreement  Date;     (xi) evidence that the Fees, if any, then due and payable under Section 3.5., together  with all other fees, expenses and reimbursement amounts due and payable to the Administrative  Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the  Administrative Agent, have been paid;      (xii) evidence that all accrued and unpaid interest and fees owing by the Loan Parties  under the Existing Credit Agreement have been paid in full and that the principle amount of the  Existing Term Loans and all interest, fees and other amounts owed with respect to the Existing  Term Loans have been paid in full and that the agreement evidencing the Existing Term Loans has  been terminated; and     (xiii) such other documents, agreements and instruments as the Administrative Agent,  or any Lender through the Administrative Agent, may reasonably request;      (b) since December 31, 2020, there shall not have occurred or become known to the  Administrative Agent or any of the Lenders any event or condition that has had or could reasonably be  expected to have a Material Adverse Effect;     (c) no litigation, action, suit, investigation or other arbitral, administrative or judicial  proceeding shall be pending or threatened which could reasonably be expected to (i) result in a Material  Adverse Effect or (ii) restrain or enjoin, or otherwise materially and adversely affect, the ability of the  Parent, the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which  it is a party;     (d) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries shall have  received all approvals, consents and waivers, and shall have made or given all necessary filings and notices  as shall be required to consummate the transactions contemplated hereby without the occurrence of any  default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or  instrument to which any Loan Party is a party or by which any of them or their respective properties is  bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of  which could not reasonably be likely to (x) have a Material Adverse Effect, or (y) restrain or enjoin, or  otherwise materially and adversely affect the ability of the Parent, the Borrower or any other Loan Party to  fulfill its obligations under the Loan Documents to which it is a party; and     (e) the Administrative Agent and the Lenders shall have received, at least five (5) Business  Days prior to the Agreement Date, all documentation and other information requested by the Administrative  Agent or any Lender or required by regulatory authorities in order for the Administrative Agent and the  Lenders to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act  and any applicable “know your customer” rules and regulations; and      (f) the Borrower shall have delivered to the Administrative Agent, and directly to any Lender  requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that such  Borrower qualifies for an express exclusion from the “legal entity customer” definition under the Beneficial  Ownership Regulations), in each case at least five (5) Business Days prior to the Closing Date    





 






  - 70 -  LEGAL02/40527467v10  The Administrative Agent shall give notice (which may be by electronic mail or other similar means of  electronic communication) to the Borrower and the Lenders promptly upon its determination that all of the  conditions precedent set forth in this Section shall have been fulfilled or waived by all of the Lenders.     Section 5.2.  Conditions Precedent to All Loans and Letters of Credit.   In addition to satisfaction or waiver of the conditions precedent contained in Section 5.1., the  obligations of (i) Lenders to make any Loans and (ii) the Issuing Banks to issue Letters of Credit, are each  subject to the further conditions precedent that: (a) no Default or Event of Default shall exist as of the date  of the making of such Loan or date of issuance of such Letter of Credit or would exist immediately after  giving effect thereto, and no violation of the limits described in Section 2.15. would occur after giving  effect thereto; (b) the representations and warranties made or deemed made by the Parent, the Borrower  and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct  in all material respects (except in the case of a representation or warranty qualified by materiality, in which  case such representation or warranty shall be true and correct in all respects) on and as of the date of the  making of such Loan or date of issuance of such Letter of Credit with the same force and effect as if made  on and as of such date except to the extent that such representations and warranties expressly relate solely  to an earlier date (in which case such representations and warranties shall have been true and correct in all  material respects (except in the case of a representation or warranty qualified by materiality, in which case  such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and  except for changes in factual circumstances not prohibited hereunder and (c) in the case of the borrowing  of Revolving Loans, the Administrative Agent shall have received a timely Notice of Revolving Borrowing,  in the case of the borrowing of Term Loans, the Administrative Agent shall have received the Notice of  Term Borrowing, and in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the  Administrative Agent shall have received a timely request for the issuance of such Letter of Credit.  Each  Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence  (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise  notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of  such Credit Event).  In addition, the Borrower shall be deemed to have represented to the Administrative  Agent and the Lenders at the time any Loan is made or any Letter of Credit is issued that all conditions to  the making of such Loan or issuing of such Letter of Credit contained in this Article V., and not waived by  the Lenders in accordance with the terms of this Agreement, have been satisfied.  Unless set forth in writing  to the contrary, the making of its initial Loan by a Lender shall constitute a certification by such Lender to  the Administrative Agent and the other Lenders that the conditions precedent for initial Loans set forth in  Sections 5.1. and 5.2. that have not previously been waived by the Lenders in accordance with the terms of  this Agreement have been satisfied.    ARTICLE VI. REPRESENTATIONS AND WARRANTIES  Section 6.1.  Representations and Warranties.   In order to induce the Administrative Agent and each Lender to enter into this Agreement and to  make Loans and, in the case of an Issuing Bank, to issue Letters of Credit, each of the Parent and the  Borrower represents and warrants to the Administrative Agent, each Issuing Bank and each Lender as  follows:     (a) Organization; Power; Qualification.  Each of the Parent, the Borrower and the other Loan  Parties is a corporation, partnership or other legal entity, duly organized or formed, validly existing and in  good standing under the jurisdiction of its incorporation or formation, has the power and authority to own  or lease its respective properties and to carry on its respective business as now being and hereafter proposed  to be conducted and is duly qualified and is in good standing as a foreign corporation, partnership or other  





 






  - 71 -  LEGAL02/40527467v10  legal entity, and authorized to do business, in each jurisdiction in which the character of its properties or  the nature of its business requires such qualification or authorization unless the failure to be so qualified or  authorized could not reasonably be expected to have, in each instance, a Material Adverse Effect.     (b) Ownership Structure.  Part I of Schedule 6.1.(b) is, as of the Effective Date, a complete and  correct list of (i) each Person holding any Equity Interest in the Borrower, (ii) the percentage of ownership  of such Person in the Borrower  and (iii) the jurisdiction of organization of each Loan Party.  Except as  disclosed on such Schedule, there are no outstanding subscriptions, options, warrants, commitments,  preemptive rights or agreements of any kind (including, without limitation, any stockholders’ or voting  trust agreements) for the issuance, sale, registration or voting of, or outstanding securities convertible into,  any additional shares of capital stock of any class, or partnership or other ownership interests of any type  in the Borrower.  To Borrower’s and the Parent’s knowledge, all of the Equity Interests in Borrower have  been issued in compliance with all Applicable Law.  As of the Agreement Date, Part II of Schedule 6.1.(b)  correctly sets forth all Subsidiaries and Unconsolidated Affiliates of the Parent, including the correct legal  name of such Person, the type of legal entity which each such Person is, and all Equity Interests (and the  Ownership Share) in such Person held directly or indirectly by the Parent.     (c) Authorization of Loan Documents and Borrowings.  The Borrower has the right and power,  and has taken all necessary action to authorize it, to borrow and obtain the other extensions of credit  hereunder.  The Parent, the Borrower and each other Loan Party has the right and power, and has taken all  necessary action to authorize it, to execute, deliver and perform each of the Loan Documents and the Fee  Letter to which it is a party in accordance with their respective terms and to consummate the transactions  contemplated hereby and thereby.  The Loan Documents and the Fee Letter to which the Parent, the  Borrower or any other Loan Party is a party have been duly executed and delivered by the duly authorized  officers of such Person and each is a legal, valid and binding obligation of such Person enforceable against  such Person in accordance with its respective terms, except as the same may be limited by bankruptcy,  insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable  remedies for the enforcement of certain obligations contained herein or therein and as may be limited by  equitable principles generally.     (d) Compliance of Loan Documents with Laws.  The execution, delivery and performance of  this Agreement and the other Loan Documents to which any Loan Party is a party and of the Fee Letter in  accordance with their respective terms and the borrowings and other extensions of credit hereunder do not  and will not, by the passage of time, the giving of notice, or both:  (i) require any Governmental Approval  that has not already been obtained or violate any Applicable Law (including all Environmental Laws)  relating to the Parent, the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or  constitute a default under the organizational documents of the Parent, the Borrower or any other Loan Party,  or any material indenture, material agreement or other material instrument to which the Parent, the  Borrower or any other Loan Party is a party or by which it or any of its respective properties may be bound;  or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now  owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its  benefit and the benefit of the Lender Parties.     (e) Compliance with Applicable Law; Governmental Approvals.  Each of the Parent, the  Borrower, each other Loan Party and each other Subsidiary is in compliance with each Governmental  Approval and all other Applicable Laws relating to it except for noncompliances which, and Governmental  Approvals the failure to possess which, could not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.    





 






  - 72 -  LEGAL02/40527467v10   (f) Title to Properties.  Each of the Parent, the Borrower, each other Loan Party and each other  Subsidiary has good, marketable and legal title to, or a valid leasehold interest in, its respective material  assets to the extent necessary to conduct their respective businesses.     (g) Certain Indebtedness.  As of the Agreement Date, no default or event of default has  occurred with respect to the payment of interest or principal on any Indebtedness of the Parent, the  Borrower, any other Loan Party or any other Subsidiary having an aggregate outstanding principal amount  of $5,000,000 or more and, to the knowledge of any Responsible Officer of the Parent or the Borrower,  none of the Parent, the Borrower, the other Loan Parties or the other Subsidiaries has received any notice  of default or event of default, or event or condition which with the giving of notice, the lapse of time, or  both, would constitute a default or event of default, with respect to any such Indebtedness, that is reasonably  likely to result in a Material Adverse Effect.      (h) Litigation.  Except as set forth on Schedule 6.1.(h), there are no actions, suits or  proceedings pending (nor, to the knowledge of the Parent or the Borrower, are there any actions, suits or  proceedings threatened) against or in any other way relating adversely to or affecting the Parent, the  Borrower, any other Loan Party or any other Subsidiary or any of their respective property in any court or  before any arbitrator of any kind or before or by any other Governmental Authority which, (i) could  reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into question the  validity or enforceability of any Loan Document or the Fee Letter.  There are no strikes, slow downs, work  stoppages or walkouts or other labor disputes in progress or threatened relating to, any Loan Party or any  other Subsidiary which could reasonably be expected to have a Material Adverse Effect.     (i) Taxes.  All material federal, state and other tax returns of the Parent, the Borrower, any  other Loan Party or any other Subsidiary required by Applicable Law to be filed have been duly filed, and  all material federal, state and other taxes, assessments and other governmental charges or levies upon the  Parent, the Borrower, each other Loan Party and each other Subsidiary and their respective properties,  income, profits and assets which are due and payable have been paid, except any such nonpayment or non- filing which is at the time permitted under Section 7.6.  As of the Agreement Date, none of the United  States income tax returns of the Parent, the Borrower, any other Loan Party or any other Subsidiary is under  audit.  All charges, accruals and reserves on the books of the Parent, the Borrower, each other Loan Party  and each other Subsidiary in respect of any taxes or other governmental charges are in accordance with  GAAP in all material respects.     (j) Financial Statements.  The Parent has furnished to each Lender copies of the audited  consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal year ended  December 31, 2020, and the related audited consolidated statements of operations, shareholders’ equity and  cash flow for the fiscal year ended on such date, with the opinion thereon of Ernst & Young LLP.  Such  financial statements (including in each case related schedules and notes) are complete and correct in all  material respects and present fairly, in all material respects in accordance with GAAP consistently applied  throughout the periods involved, the consolidated financial position of the Parent and its consolidated  Subsidiaries as at their respective dates and the results of operations and the cash flow for such periods  (subject, as to interim statements, to changes resulting from normal year-end audit adjustments and absence  of footnotes).     (k) No Material Adverse Change; Solvency.  Since December 31, 2020, there has been no  event, change, circumstance or occurrence that could reasonably be expected to have a Material Adverse  Effect.  The Parent, the Borrower and their respective Subsidiaries, taken as a whole, are Solvent.    





 






  - 73 -  LEGAL02/40527467v10   (l) ERISA.     (i) Except as could not individually or in the aggregate, reasonably be expected to  have a Material Adverse Effect, each Benefit Arrangement is in compliance with the applicable  provisions of ERISA, the Internal Revenue Code and other Applicable Laws.  Except with respect  to Multiemployer Plans, each Qualified Plan (A) has received a favorable determination from the  Internal Revenue Service applicable to such Qualified Plan’s current remedial amendment cycle  (as defined in Revenue Procedure 2007-44 or “2007-44” for short), (B) has timely filed for a  favorable determination letter from the Internal Revenue Service during its staggered remedial  amendment cycle (as defined in 2007-44) and such application is currently being processed by the  Internal Revenue Service, (C) had filed for a determination letter prior to its “GUST remedial  amendment period” (as defined in 2007-44) and received such determination letter and the  staggered remedial amendment cycle first following the GUST remedial amendment period for  such Qualified Plan has not yet expired, or (D) is maintained under a prototype plan and may rely  upon a favorable opinion letter issued by the Internal Revenue Service with respect to such  prototype plan.  To the knowledge of the Parent and the Borrower, nothing has occurred which  could reasonably be expected to result in the revocation of a Qualified Plan’s favorable  determination letter or opinion letter.     (ii) None of the Parent, the Borrower or any of their respective Subsidiaries has any  liability, contingent or otherwise, to a Benefit Arrangement that is a retiree welfare benefit  arrangement.         (iii) Except as could not reasonably be expected, individually or in the aggregate, to  have a Material Adverse Effect: (i) no ERISA Event has occurred or is expected to occur; (ii) there  are no pending, or to the knowledge of the Parent and the Borrower, threatened, claims, actions or  lawsuits or other action by any Governmental Authority, plan participant or beneficiary with  respect to a Benefit Arrangement; (iii) there are no violations of the fiduciary responsibility rules  with respect to any Benefit Arrangement; and (iv) no member of the ERISA Group has engaged in  a non-exempt “prohibited transaction,” as defined in Section 406 of ERISA and Section 4975 of  the Internal Revenue Code, in connection with any Plan, that would subject any member of the  ERISA Group to a tax on prohibited transactions imposed by Section 502(i) of ERISA or  Section 4975 of the Internal Revenue Code.     (m) Absence of Default.  None of the Parent, the Borrower, any other Loan Party or any other  Subsidiary is in default under its certificate or articles of incorporation or formation, bylaws, partnership  agreement or other similar organizational documents, and no event has occurred, which has not been  remedied, cured or waived:  (i) which constitutes a Default or an Event of Default; or (ii) which constitutes,  or which with the passage of time, the giving of notice, or both, would constitute, a default or event of  default by, the Parent, the Borrower, any other Loan Party or any other Subsidiary under any agreement  (other than this Agreement) or judgment, decree or order to which any such Person is a party or by which  any such Person or any of its respective properties may be bound where such default or event of default  could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.     (n) Environmental Laws.  In the ordinary course of business, each of the Parent, the Borrower,  each other Loan Party and each other Subsidiary causes reviews to be conducted of its respective operations  or properties, to the extent applicable, for compliance with Environmental Laws.  Each of the Parent, the  Borrower, each other Loan Party and each other Subsidiary: (i) is in compliance with all Environmental  Laws applicable to its business, operations and the Properties, (ii) has obtained all Governmental Approvals  which are required under Environmental Laws for its business and operations, and each such Governmental  Approval is in full force and effect, and (iii) is in compliance with all terms and conditions of such  





 






  - 74 -  LEGAL02/40527467v10  Governmental Approvals, where with respect to each of the immediately preceding clauses (i) through (iii)  the failure to obtain or to comply could reasonably be expected to have a Material Adverse Effect.  Except  for any of the following matters that could not reasonably be expected to have a Material Adverse Effect,  none of the Parent, the Borrower, any other Loan Party or any other Subsidiary has any knowledge of, nor  has the Parent, the Borrower, any other Loan Party or any other Subsidiary received written notice of, any  past, present, or pending releases, events, conditions, circumstances, activities, practices, incidents, facts,  occurrences, actions, or plans that, with respect to the Parent, the Borrower, such other Loan Party or such  other Subsidiary, their respective businesses, operations or with respect to the Properties, is reasonably  likely to:  (x) cause or contribute to a violation of or noncompliance with Environmental Laws, (y) cause  or contribute to any other claim or other liability under any Environmental Law, or (z) cause any of the  Properties to become subject to any restrictions on ownership, occupancy, use or transferability under any  Environmental Law or require the filing or recording of any notice, approval or disclosure document under  any Environmental Law.  There is no civil, criminal, or administrative action, suit, demand, claim, hearing,  notice, or demand letter, mandate, order, lien, request, investigation, or proceeding pending or, to the  Parent’s knowledge after due inquiry, threatened, against the Parent, the Borrower, any other Loan Party or  any other Subsidiary relating in any way to Environmental Laws which, reasonably could be expected to  have a Material Adverse Effect.  None of the Properties is listed on or, to the Parent’s knowledge, proposed  for listing on, the National Priority List promulgated pursuant to the Comprehensive Environmental  Response, Compensation and Liability Act of 1980 and its implementing regulations, or any comparable  state or local priority list promulgated pursuant to any analogous state or local law, except as could not  reasonably be expected to result in a Material Adverse Effect.  To Parent’s knowledge, no Hazardous  Materials generated at or transported from the Properties are or have been transported to, or disposed of at,  any location that is listed or proposed for listing on the National Priority List or any comparable state or  local priority list, or any other location that is or has been the subject of a clean-up, removal or remedial  action pursuant to any Environmental Law, except to the extent that such transportation or disposal could  not reasonably be expected to result in a Material Adverse Effect.     (o) Investment Company.  None of the Parent, the Borrower, any other Loan Party or any other  Subsidiary is (i) an “investment company” or a company “controlled” by an “investment company” within  the meaning of the Investment Company Act of 1940, as amended, or (ii) subject to any other Applicable  Law which purports to restrict its ability to borrow money or obtain other extensions of credit or to  consummate the transactions contemplated by this Agreement or to perform its obligations under any Loan  Document to which it is a party.     (p) Margin Stock.  None of the Parent, the Borrower, any other Loan Party or any other  Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit  for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the  meaning of Regulation U of the Board of Governors of the Federal Reserve System.     (q) Intellectual Property.  Each of the Loan Parties and each other Subsidiary owns or has the  right to use, under valid license agreements or otherwise, all patents, licenses, franchises, trademarks,  trademark rights, service marks, service mark rights,  trade names, trade name rights, trade secrets and  copyrights (collectively, “Intellectual Property”) necessary to the conduct of its businesses, without known  conflict with any patent, license, franchise, trademark, trademark right, service mark, service mark right,  trade secret, trade name, copyright, or other proprietary right of any other Person except for such Intellectual  Property, the absence of which, and for conflicts which, could not reasonably be expected to have a Material  Adverse Effect.  Each of the Loan Parties and each other Subsidiary has taken all such steps as it deems  reasonably necessary to protect its respective rights under and with respect to such Intellectual Property.   No material claim has been asserted by any Person with respect to the use of any such Intellectual Property  by the Parent, the Borrower, any other Loan Party or any other Subsidiary, or challenging or questioning  the validity or effectiveness of any such Intellectual Property.  The use of such Intellectual Property by the  





 






  - 75 -  LEGAL02/40527467v10  Parent, the Borrower, the other Loan Parties and the other Subsidiaries does not infringe on the rights of  any Person, subject to such claims and infringements as do not, in the aggregate, give rise to any liabilities  on the part of the Parent, the Borrower, any other Loan Party or any other Subsidiary that could reasonably  be expected to have a Material Adverse Effect.     (r) Business.  As of the Agreement Date, the Parent, the Borrower, the other Loan Parties and  the other Subsidiaries are primarily engaged in (i) the business of owning, operating, managing and  developing Designated Use Properties and the provision of services incidental thereto, (ii) the brokerage,  purchase and sale of manufactured home units, (iii) the business of owning, operating, managing and  developing marinas and (iv) other business activities reasonably incidental to the foregoing.     (s) Broker’s Fees.  No broker’s or finder’s fee, commission or similar compensation will be  payable with respect to the transactions contemplated hereby.  No other similar fees or commissions will  be payable by any Loan Party for any other services rendered to the Parent, the Borrower, any other Loan  Party or any other Subsidiary to the transactions contemplated hereby.     (t) Accuracy and Completeness of Information.  All written information, reports and other  papers and data (other than (i) financial projections, budgets, forecasts, pro forma financial statements and  other forward looking statements and (ii) general economic or industry information) furnished to the  Administrative Agent or any Lender by, on behalf of, or at the direction of, the Parent, the Borrower, any  other Loan Party or any other Subsidiary were, at the time the same were so furnished and taken as a whole  with all other written information, reports and other papers and data furnished substantially  contemporaneously therewith, complete and correct in all material respects, to the extent necessary to give  the recipient a true and accurate knowledge of the subject matter, or, in the case of financial statements  (other than (x) financial projections, budgets, forecasts, pro forma financial statements and other forward  looking statements and (y) the financial statements covered in Section 6.1.(j)), are complete and correct in  all material respects and present fairly, in all material respects in accordance with GAAP consistently  applied throughout the periods involved, the consolidated financial position of the Persons involved as at  their respective dates and the results of operations for such periods (subject, as to interim statements, to  changes resulting from normal year-end audit adjustments and absence of full footnote disclosure).  All  financial projections, budgets, forecasts, pro forma financial statements and other forward looking  statements prepared by or on behalf of the Parent, the Borrower, any other Loan Party or any other  Subsidiary that have been or may hereafter be made available to the Administrative Agent or any Lender  were or will be prepared in good faith based on assumptions believed to be reasonable at the time of  preparation thereof.  No fact is known to any Loan Party which has had, or may in the future have (so far  as any Loan Party can reasonably foresee), a Material Adverse Effect which has not been set forth in the  financial statements referred to in Section 6.1.(j) or in such information, reports or other papers or data or  otherwise disclosed in writing to the Administrative Agent and the Lenders.  No document furnished or  written statement made to the Administrative Agent or any Lender in connection with the negotiation,  preparation or execution of, or pursuant to, this Agreement or any of the other Loan Documents (other than  (i) financial projections, budgets, forecasts, pro forma financial statements and other forward looking  statements and (ii) general industry information) contains or will contain any untrue statement of a material  fact, or omits or will omit to state a material fact necessary in order to make the statements contained therein  not misleading.     (u) Not Plan Assets; No Prohibited Transactions.  None of the assets of the Parent, the  Borrower, any other Loan Party or any other Subsidiary constitutes “plan assets” as defined by 29 C.F.R.  2510.3-101 (as modified by §3(42) of ERISA).  Assuming that no Lender funds any amount payable by it  hereunder with “plan assets,” as that term is defined in 29 C.F.R. 2510.3-101 (as modified by §3(42) of  ERISA), the execution, delivery and performance of this Agreement and the other Loan Documents, and  





 






  - 76 -  LEGAL02/40527467v10  the extensions of credit and repayment of amounts hereunder, do not and will not constitute non-exempt  “prohibited transactions” under §406 of ERISA or §4975 of the Internal Revenue Code.     (v) Anti-Corruption Laws and Sanctions; Anti-Money Laundering Laws.      (i) None of (A) the Parent, the Borrower, any Subsidiary or, to the knowledge  of the Borrower, any of their respective directors, officers, employees or Affiliates, or (B) to the  knowledge of the Borrower, any agent or representative of the Parent, the Borrower or any  Subsidiary that will act in any capacity in connection with or benefit from the Loans, (I) is a  Sanctioned Person or currently the subject or target of any Sanctions, (II) has its assets located in a  Sanctioned Country, (III) is, to its knowledge, 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 (IV) directly or, to the knowledge of the  Borrower, indirectly derives revenues from investments in, or transactions with, Sanctioned  Persons.     (ii) Each of the Parent, the Borrower and its Subsidiaries has implemented and  maintains in effect policies and procedures designed to promote and achieve compliance by the  Parent, the Borrower and its Subsidiaries and their respective directors, officers, employees, agents  and Affiliates with all Anti-Corruption Laws and Anti-Money Laundering Laws, and will  implement within 120 days following the Effective Date policies and procedures designed to  promote and achieve compliance by the Parent, the Borrower and its Subsidiaries and their  respective directors, officers, employees, agents and Affiliates with applicable Sanctions.      (iii) Each of the Parent, the Borrower and its Subsidiaries, and to the  knowledge of the Borrower, director, officer, employee, agent and Affiliate of the Parent, the  Borrower and each such Subsidiary, is in compliance with all Anti-Corruption Laws, Anti-Money  Laundering Laws, and applicable Sanctions in all material respects.    (iv) No proceeds of any Loan has been used, directly or, to the knowledge of  the Borrower, indirectly, by the Borrower, any of its Subsidiaries or any of its or their respective  directors, officers and employees in violation of Section 7.8.     (w) REIT Status.  The Parent qualifies as, and has elected to be treated as, a REIT and is in  compliance with all requirements and conditions imposed under the Internal Revenue Code to allow the  Parent to maintain its status as a REIT.     (x) Qualifying Unencumbered Properties.  Schedule 1.1. sets forth, as of the Effective Date, a  list of each Qualified Unencumbered Property as of such date including the owner of such Property.  Each  Property included in a given calculation of the Unencumbered Net Operating Income satisfied, at the time  of such calculation, all of the requirements contained in the definition of “Qualifying Unencumbered  Property”.     (y) Affected Financial Institution.  None of the Borrower, any other Loan Party or any other  Subsidiary is an Affected Financial Institution.    





 






  - 77 -  LEGAL02/40527467v10  Section 6.2.  Survival of Representations and Warranties, Etc.   All statements contained in any certificate, financial statement or other instrument delivered by or  on behalf of the Parent, the Borrower, any other Loan Party or any other Subsidiary to the Administrative  Agent or any Lender pursuant to or in connection with this Agreement or any of the other Loan Documents  (including, but not limited to, any such statement made in or in connection with any amendment thereto or  any statement contained in any certificate, financial statement or other instrument delivered by or on behalf  of the Parent, the Borrower, any other Loan Party or any other Subsidiary prior to the Agreement Date and  delivered to the Administrative Agent or any Lender in connection with the underwriting or closing the  transactions contemplated hereby but excluding financial projections, budgets, forecasts, pro forma  financial statements and other forward looking statements and general industry information) shall constitute  representations and warranties made by the Borrower under this Agreement.  All representations and  warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and  as of the Agreement Date, the Effective Date, the date on which any extension of the Revolving Termination  Date is effectuated pursuant to Section 2.13., the date on which any increase of the Revolving Commitments  is effectuated or Additional Term Loans are made pursuant to Section 2.16. and as of the date of the  occurrence of each Credit Event, except to the extent that such representations and warranties expressly  relate solely to an earlier date (in which case such representations and warranties shall have been true and  correct in all material respects (except in the case of a representation or warranty qualified by materiality,  in which case such representation or warranty shall be true and correct in all respects) on and as of such  earlier date) and except for changes in factual circumstances not prohibited hereunder.  All such  representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery  of the Loan Documents and the making of the Loans and the issuance of the Letters of Credit.    ARTICLE VII. AFFIRMATIVE COVENANTS   For so long as this Agreement is in effect, the Parent and the Borrower shall comply with the  following covenants:    Section 7.1.  Preservation of Existence and Similar Matters.   Except as otherwise permitted under Section 9.6., the Parent and the Borrower shall, and shall cause  each other Loan Party and each other Subsidiary to, preserve and maintain its respective existence, rights,  franchises, licenses and privileges in the jurisdiction of its incorporation or formation and qualify and  remain qualified and authorized to do business in each jurisdiction in which the character of its properties  or the nature of its business requires such qualification and authorization unless the failure to be so  authorized and qualified could not reasonably be expected to have a Material Adverse Effect.    Section 7.2.  Compliance with Applicable Law.   (a) The Parent and the Borrower shall, and shall cause each other Loan Party and each other  Subsidiary to, comply with all Applicable Laws, including the obtaining of all Governmental Approvals,  the failure with which to comply could reasonably be expected to have a Material Adverse Effect.     (b) The Parent and the Borrower shall, and shall cause each other Loan Party to, (i) implement  within 120 days following the Effective Date (as applicable), and maintain in effect and enforce policies  and procedures designed to promote and achieve compliance by the Parent, the Borrower, its Subsidiaries  and their respective directors, officers, employees and agents with all Anti-Corruption Laws, Anti-Money  Laundering Laws and applicable Sanctions, (ii) notify the Administrative Agent and each Lender that  previously received a Beneficial Ownership Certification (or a certification that the Borrower qualifies for  an express exclusion to the “legal entity customer” definition under the Beneficial Ownership Regulation)  





 






  - 78 -  LEGAL02/40527467v10  of any change in the information provided in the Beneficial Ownership Certification that would result in a  change to the list of beneficial owners identified therein (or, if applicable, the Borrower ceasing to fall  within an express exclusion to the definition of “legal entity customer” under the Beneficial Ownership  Regulation) and (iii) promptly upon the reasonable request of the Administrative Agent or any Lender,  provide the Administrative Agent or directly to such Lender, as the case may be, any information or  documentation requested by it for purposes of complying with the Beneficial Ownership Regulation.    Section 7.3.  Maintenance of Property.   In addition to the requirements of any of the other Loan Documents, the Parent and the Borrower  shall, and shall cause each other Loan Party and each other Subsidiary to, (a)  protect and preserve, and  maintain in good repair, working order and condition, all of its respective material properties, ordinary wear  and tear and casualty and condemnation excepted, and (b) from time to time make or cause to be made all  needed and appropriate repairs, renewals, replacements and additions to such properties, so that the business  carried on in connection therewith may be properly and advantageously conducted at all times.    Section 7.4.  Conduct of Business.   Except as otherwise permitted under Section 9.6., the Parent and the Borrower shall, and shall cause  each other Loan Party and each other Subsidiary to, carry on its respective businesses as described in  Section 6.1.(r).    Section 7.5.  Insurance.   In addition to the requirements of any of the other Loan Documents, the Parent and the Borrower  shall, and shall cause each other Loan Party and each other Subsidiary to, maintain insurance with  financially sound and reputable insurance companies against such risks and in such amounts as is  customarily maintained by Persons engaged in similar businesses or as may be required by Applicable Law.   The Borrower shall from time to time deliver to the Administrative Agent upon reasonable request a detailed  list, together with reasonable evidence of the insurance then in effect, stating the names of the insurance  companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties  and risks covered thereby.      Section 7.6.  Payment of Taxes.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, pay and discharge when due all material taxes, assessments and governmental charges or levies imposed  upon it or upon its income or profits or upon any properties belonging to it which, if unpaid, might become  a Lien (except for Permitted Liens) on any properties of such Person; provided, however, that this Section  shall not require the payment or discharge of any such tax, assessment, charge or levy which is being  contested in good faith by appropriate proceedings which operate to suspend the collection thereof and for  which adequate reserves have been established on the books of such Person, in accordance with GAAP.    Section 7.7.  Books and Records; Inspections.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, keep proper books of record and account in which full, true and correct entries in all material respects  in conformity with GAAP consistently applied shall be made.  The Parent and the Borrower shall, and shall  cause each other Loan Party and each other Subsidiary to, permit representatives of the Administrative  Agent or any Lender to visit and inspect any of their respective properties, to examine and make abstracts  from any of their respective books and records and to discuss their respective affairs, finances and accounts  





 






  - 79 -  LEGAL02/40527467v10  with their respective officers, employees and independent public accountants (in the presence of an officer  of the Borrower), all at such reasonable times during business hours and so long as no Event of Default  exists, with reasonable prior notice; provided, that, unless an Event of Default has occurred and is  continuing, the Administrative Agent and Lenders (taken as a whole) shall not conduct more than one such  inspection in any twelve month period.  The Borrower shall be obligated to reimburse the Administrative  Agent and the Lenders for their costs and expenses incurred in connection with the exercise of their rights  under this Section only if such exercise occurs while a Default or Event of Default exists.  The Borrower  hereby authorizes and instructs its accountants to discuss the financial affairs of the Borrower, any other  Loan Party or any other Subsidiary with the Administrative Agent or any Lender; provided that an officer  of the Borrower shall be given a reasonable opportunity to be present for any discussions with any such  accountants.  Notwithstanding anything to the contrary contained herein, none of the Parent, the Borrower,  any Loan Party or any Subsidiary shall be required to disclose, permit the inspection, examination, or  making copies or abstracts of, or discussion of any document or information (a) that constitutes non- financial trade secrets or non-financial proprietary information; (b) in respect of which disclosure to the  Administrative Agent and the Lenders is prohibited by law; or (c) that is subject to attorney-client privilege  or similar privilege or constitutes attorney work product.     Section 7.8.  Use of Proceeds.   The Borrower will use the proceeds of Loans only (a) to finance acquisitions permitted under this  Agreement; (b) to finance capital expenditures and (c) to provide for the general working capital needs of  the Borrower and its Subsidiaries and for other general corporate purposes of the Borrower and its  Subsidiaries.  The Borrower shall only use Letters of Credit for the same purposes for which it may use the  proceeds of Loans.  The Parent and the Borrower shall not, and shall not permit any other Loan Party or  any other Subsidiary to, use any part of such proceeds to purchase or carry, or to reduce or retire or refinance  any credit incurred to purchase or carry, any margin stock (within the meaning of Regulation U of the Board  of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or  carrying any such margin stock.  The Borrower shall not request any borrowing of any Loans or the issuance  of any Letter of Credit, and the Borrower shall not use, and shall ensure that its Subsidiaries and its or their  respective directors, officers, employees and agents shall not use, the proceeds of any Loan or any Letter  of Credit, directly or, to the knowledge of the Borrower, indirectly, (i) in furtherance of an offer, payment,  promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person  in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws, (ii) for the purpose of funding,  financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any  Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to  any party hereto.    Section 7.9.  Environmental Matters.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, comply with all Environmental Laws the failure with which to comply could reasonably be expected to  have a Material Adverse Effect.  The Parent and the Borrower shall comply, and shall cause each other  Loan Party and each other Subsidiary to comply, and the Parent and the Borrower shall use, and shall cause  each other Loan Party and each other Subsidiary to use, commercially reasonable efforts to cause all other  Persons occupying, using or present on the Properties to comply, with all Environmental Laws the failure  with which to comply could reasonably be expected to have a Material Adverse Effect.  The Parent and the  Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, promptly take all  actions and pay or arrange to pay all costs necessary for it and for the Properties to comply with all  Environmental Laws and all Governmental Approvals, including actions to remove and dispose of all  Hazardous Materials and to clean up the Properties as required under Environmental Laws, in each case,  the failure with which to comply could reasonably be expected to have a Material Adverse Effect.  Nothing  





 






  - 80 -  LEGAL02/40527467v10  in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any  Lender.    Section 7.10.  Further Assurances.   At the Borrower’s cost and expense and upon request of the Administrative Agent, the Parent and  the Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, duly execute and  deliver or cause to be duly executed and delivered, to the Administrative Agent such further instruments,  documents and certificates, and do and cause to be done such further acts that may be reasonably necessary  or advisable in the reasonable opinion of the Administrative Agent to carry out more effectively the  provisions and purposes of this Agreement and the other Loan Documents; provided, however, that, except  as may be expressly required pursuant to the terms of any Loan Document, neither Parent, Borrower, nor  any other Loan Party shall be obligated to deliver any instrument, document or certificate which expands  such Person’s liability or reduces such Person’s express rights hereunder.    Section 7.11.  REIT Status.   The Parent shall maintain its status as, and election to be treated as, a REIT.    Section 7.12.  Exchange Listing.   The Parent shall maintain at least one class of common shares of the Parent having trading  privileges on the New York Stock Exchange or other nationally recognized securities exchange.     ARTICLE VIII. INFORMATION   For so long as this Agreement is in effect, the Borrower shall furnish (including by electronic means  as provided in Section 8.5.) to each Lender (or to the Administrative Agent if so provided below):    Section 8.1.  Quarterly Financial Statements.   As soon as available and in any event within 5 days after the same is required to be filed with the  SEC (but in no event later than 50 days after the end of each of the first, second and third fiscal quarters of  the Parent commencing with the fiscal quarter ending March 31, 2021), the unaudited consolidated balance  sheet of the Parent and its Subsidiaries as at the end of such period and the related unaudited consolidated  statements of operations, stockholders’ equity and cash flows of the Parent and its Subsidiaries for such  period, setting forth in each case in comparative form the figures as of the end of and for the corresponding  periods of the previous fiscal year (if any), all of which shall be certified by the chief executive officer,  chief financial officer or vice president-treasurer of the Parent, in his or her opinion, to present fairly, in  accordance with GAAP in all material respects and consistently applied, the consolidated financial position  of the Parent and its Subsidiaries as at the date thereof and the results of operations for such period (subject,  in each case, to normal year-end audit adjustments and the absence of full footnote disclosure).    Section 8.2.  Year-End Statements.   As soon as available and in any event within 5 days after the same is required to be filed with the  SEC (but in no event later than 120 days after the end of each fiscal year of the Parent), the audited  consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year and the related  audited consolidated statements of operations, stockholders’ equity and cash flows of the Parent and its  Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end of and for the  previous fiscal year (if any), all of which shall be (a) certified by the chief executive officer, chief financial  





 






  - 81 -  LEGAL02/40527467v10  officer or vice president-treasurer of the Parent, in his or her opinion, to present fairly, in all material  respects and in accordance with GAAP consistently applied, the financial position of the Parent and its  Subsidiaries as at the date thereof and the result of operations for such period and (b) accompanied by the  report thereon of Ernst & Young LLP or other independent certified public accountants of recognized  national standing acceptable to the Administrative Agent, whose report shall be unqualified as to “going  concern” (and other like qualifications or exceptions) and to scope.      Section 8.3.  Compliance Certificate.   Not later than 50 days after the end of the first, second and third fiscal quarters of the Parent and  120 days after the end of the fiscal year of the Parent, a certificate substantially in the form of Exhibit K (a  “Compliance Certificate”) executed on behalf of the Parent by the chief executive officer, chief financial  officer or vice president-treasurer of the Parent (a) setting forth in reasonable detail as of the end of such  quarterly accounting period or fiscal year, as the case may be, the calculations required to establish whether  the Parent was in compliance with the covenants contained in Section 9.1. and (b) stating that no Default  or Event of Default exists, or, if such is not the case, specifying such Default or Event of Default and its  nature, when it occurred and the steps being taken by the Parent with respect to such event, condition or  failure.    Section 8.4.  Other Information.   (a) Promptly upon the Administrative Agent’s request, copies of all reports, if any, submitted  to the Parent or its Board of Directors by its independent public accountants including, without limitation,  any management report;     (b) Within 5 Business Days of the filing thereof, copies of all registration statements  (excluding the exhibits thereto (unless requested by the Administrative Agent) and any registration  statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and  all other periodic reports which the Parent, the Borrower, any other Loan Party or any other Subsidiary  shall file with the SEC or any national securities exchange;     (c) Promptly upon the mailing thereof to the shareholders of the Parent generally, copies of all  financial statements, reports and proxy statements so mailed;      (d) At the time financial statements are furnished pursuant to Sections 8.1. and 8.2., (i) a  statement of Funds from Operations certified by the chief executive officer, chief financial officer or vice  president-treasurer of the Parent in form and substance reasonably satisfactory to the Administrative Agent;  and (ii) a report of newly acquired Properties, in form and detail reasonably satisfactory to the  Administrative Agent, which shall include, without limitation, the Net Operating Income of such Property,  the cost of acquisition of such Property and the amount, if any, of Indebtedness secured by a Lien on such  Property;     (e) No later than 30 days after the beginning of each fiscal year of the Parent ending prior to  the latest Termination Date, projected balance sheets, operating statements, profit and loss projections and  cash flow budgets of the Parent and its Subsidiaries on a consolidated basis for such fiscal year, all itemized  in reasonable detail;     (f) If any ERISA Event shall occur that individually, or together with any other ERISA Event  that has occurred and is continuing, could reasonably be expected to have a Material Adverse Effect, a  certificate of the chief executive officer, chief financial officer or vice president-treasurer of the Parent  





 






  - 82 -  LEGAL02/40527467v10  setting forth details as to such occurrence and the action, if any, which the Parent or applicable member of  the ERISA Group is required or proposes to take;     (g) To the extent the Parent, the Borrower, any other Loan Party or any other Subsidiary is  aware of the same, prompt notice of the commencement of any proceeding or investigation by or before  any Governmental Authority and any action or proceeding in any court or other tribunal or before any  arbitrator against or in any other way relating to, or affecting, the Parent, the Borrower, any other Loan  Party or any other Subsidiary or any of their respective properties, assets or businesses which could  reasonably be expected to have a Material Adverse Effect;     (h) Prompt notice of the occurrence of any event which has had, or could reasonably be  expected to have, a Material Adverse Effect;     (i) Prompt notice of the occurrence of any Default or Event of Default;     (j) Promptly upon the request of the Administrative Agent, evidence of the Parent’s  calculation of the Ownership Share with respect to a Subsidiary (other than a Wholly Owned Subsidiary)  or an Unconsolidated Affiliate, such evidence to be in form and detail reasonably satisfactory to the  Administrative Agent;     (k) Promptly upon the request thereof, such other information and documentation required  under applicable “know your customer” rules and regulations, the PATRIOT Act or any applicable Anti- Money Laundering Laws or Anti-Corruption Laws, in each case as from time to time reasonably requested  in writing by the Administrative Agent or any Lender;     (l) Promptly, and in any event within 3 Business Days after the Parent or the Borrower obtains  knowledge thereof, written notice of the occurrence of any of the following:  (i) the Parent, the Borrower,  any other Loan Party or any other Subsidiary shall receive notice that any violation of or noncompliance  with any Environmental Law has or may have been committed; (ii) the Parent, the Borrower, any other  Loan Party or any other Subsidiary shall receive notice that any administrative or judicial complaint, order  or petition has been filed or other proceeding has been initiated, or is about to be filed or initiated against  any such Person alleging any violation of or noncompliance with any Environmental Law or requiring any  such Person to take any action in connection with the release or threatened release of Hazardous Materials;  (iii) the Parent, the Borrower, any other Loan Party or any other Subsidiary shall receive any notice from a  Governmental Authority or private party alleging that any such Person may be liable or responsible for any  costs associated with a response to, or remediation or cleanup of, a release or threatened release of  Hazardous Materials or any damages caused thereby; or (iv) the Parent, the Borrower, any other Loan Party  or any other Subsidiary shall receive notice of any other fact, circumstance or condition that could  reasonably be expected to form the basis of an environmental claim, and in the case of any of the foregoing  of (i) through (iv), such matters, whether individually or in the aggregate, could reasonably be expected to  have a Material Adverse Effect;      (m) Prompt notice of any material change in accounting policies or financial reporting practices  by the Parent, the Borrower, any other Loan Party or any other Subsidiary; and     (n) From time to time and promptly upon each request, such data, certificates, reports,  statements, documents or further information regarding any Property or the business, assets, liabilities,  financial condition, results of operations or business prospects of the Parent, the Borrower, any other Loan  Party or any other Subsidiary as the Administrative Agent or any Lender may reasonably request.    





 






  - 83 -  LEGAL02/40527467v10  Section 8.5.  Electronic Delivery of Certain Information.   (a) Documents required to be delivered pursuant to the Loan Documents may be delivered by  electronic communication and delivery, including, the Internet, e-mail or intranet websites to which the  Administrative Agent and each Lender have access (including a commercial, third-party website or a  website sponsored or hosted by the Administrative Agent or the Parent (including, without limitation, on  the Parent’s website)) provided that the foregoing shall not apply to (i) notices to any Lender (or any Issuing  Bank) pursuant to Article II. and (ii) any Lender that has notified the Administrative Agent and the Parent  that it cannot or does not want to receive electronic communications.  The Administrative Agent, the Parent  or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by  electronic delivery pursuant to procedures approved by it for all or particular notices or communications.   Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e- mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended  recipient (such as by the “return receipt requested” function, as available, return e-mail or other written  acknowledgement) and (ii) documents or notices posted to the Internet or intranet website shall be deemed  to have been delivered 24 hours after the date and time on which the Administrative Agent, the Parent or  the Borrower posts such documents or the documents become available on a commercial website and the  Administrative Agent, the Parent or the Borrower notifies each Lender of said posting and provides a link  thereto; provided that for both clauses (i) and (ii) above, if such notice, email or other communication is  not sent or posted during the normal business hours of the recipient, said delivery or posting date and time  shall be deemed to have occurred as of 11:00 a.m. Central time on the opening of business on the next  business day for the recipient.  Notwithstanding anything contained herein, the Parent shall deliver paper  copies of any documents to the Administrative Agent or to any Lender that requests such paper copies until  a written request to cease delivering paper copies is given by the Administrative Agent or such Lender.   The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of  the documents delivered electronically, and in any event shall have no responsibility to monitor compliance  by the Parent or the Borrower with any such request for delivery.  Each Lender shall be solely responsible  for requesting delivery to it of paper copies and maintaining its paper or electronic documents.      (b) Documents required to be delivered pursuant to Article II. may be delivered electronically  to a website provided for such purpose by the Administrative Agent pursuant to the procedures provided to  the Parent or the Borrower by the Administrative Agent.     Section 8.6.  Public/Private Information.   The Parent and the Borrower shall cooperate with the Administrative Agent in connection with the  publication of certain materials and/or information provided by or on behalf of the Parent or the Borrower.   Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of  the Parent or the Borrower to the Administrative Agent and the Lenders (collectively, “Information  Materials”) pursuant to this Article and the Parent or the Borrower shall designate Information Materials  that are either available to the public or not material with respect to Parent, the Borrower and the other  Subsidiaries or any of their respective securities for purposes of United States federal and state securities  laws, as “Public Information”.  All such Information Materials not so designated as “Public Information”  shall be deemed to be “Private Information”.      Section 8.7.  PATRIOT Act Notice; Compliance.   The PATRIOT Act and federal regulations issued with respect thereto require all financial  institutions to obtain, verify and record certain information that identifies individuals or business entities  which open an “account” with such financial institution.  Consequently, a Lender (for itself and/or as agent  for all Lenders hereunder) may from time-to-time request, and the Parent and the Borrower shall, and shall  





 






  - 84 -  LEGAL02/40527467v10  cause the other Loan Parties to, provide promptly upon any such request to such Lender, such Loan Party’s  name, address, tax identification number and/or such other identification information as shall be necessary  for such Lender to comply with federal law.  An “account” for this purpose may include, without limitation,  a deposit account, cash management service, a transaction or asset account, a credit account, a loan or other  extension of credit, and/or other financial services product.    Section 8.8.  Qualifying Unencumbered Properties.   The Borrower may from time to time but no more frequently than quarterly deliver notice to the  Administrative Agent stating that the Borrower intends to designate a Property to become a Qualifying  Unencumbered Property.  Such notice shall (a) set forth the name of such Property (or, if such Property has  no name, such notice shall otherwise identify such Property), and (b) be accompanied by a statement of  income, certified by the chief executive officer, chief financial officer or vice president-treasurer of the  Parent, for each such Property for the then most recently completed fiscal quarter (or, if such statement of  income is unavailable, a pro forma financial statement setting forth the Net Operating Income with respect  to such Property for the then current fiscal quarter).  If any such Property meets the requirements set forth  in the definition of “Qualifying Unencumbered Properties” and the Administrative Agent fails to deliver  written notice to the Borrower stating that the Requisite Lenders have disapproved the designation of such  Property as a Qualifying Unencumbered Property (it being understood that such notice shall provide the  Borrower with information regarding why such designation was disapproved by the Requisite Lenders and  that the Requisite Lenders will not unreasonably disapprove such designation) within 20 days after receipt  of such information by the Administrative Agent, such Property shall become a Qualifying Unencumbered  Property.    ARTICLE IX. NEGATIVE COVENANTS   For so long as this Agreement is in effect, the Parent and the Borrower, as applicable, shall comply  with the following covenants:    Section 9.1.  Financial Covenants.   (a) Maximum Leverage Ratio.  The Parent shall not permit the ratio of (i) Total Indebtedness  to (ii) Total Asset Value, to exceed 0.60 to 1.00 at any time; provided, however, that if such ratio is greater  than 0.60 to 1.00 but is not greater than 0.65 to 1.00, then the Parent shall be deemed to be in compliance  with this Section 9.1(a) so long as (A) the Borrower completed a Material Acquisition which resulted in  such ratio (after giving effect to such Material Acquisition) exceeding 0.60 to 1.00 at any time during the  fiscal quarter in which such Material Acquisition took place and during the subsequent fiscal quarter  thereafter, (B) the Borrower has maintained compliance with this Section 9.1.(a) in reliance on this proviso  not more than two times during the term of this Agreement, and (C) such ratio (after giving effect to such  Material Acquisition) is not greater than 0.65 to 1.00 at any time.        (b) Maximum Fixed Charge Coverage Ratio.  The Parent shall not permit the ratio of  (i) Adjusted EBITDA for any period of 12 consecutive calendar months ending during the term of this  Agreement to (ii) Fixed Charges of the Parent and its Subsidiaries determined on a consolidated basis for  such period, to be less than 1.40 to 1.00 at any time.     (c) Minimum Unencumbered Debt Yield.  The Parent shall not permit the ratio (expressed as  a percentage) of (i) Unencumbered Net Operating Income for any period of 12 consecutive calendar months  ending during the term of this Agreement to (ii) Unsecured Debt to be less than 9.75% at any time.    





 






  - 85 -  LEGAL02/40527467v10   (d) Minimum Unencumbered Interest Coverage Ratio.  The Parent shall not permit the ratio of  (i) Unencumbered Net Operating Income any fiscal quarter ending during the term of this Agreement to  (ii) Unsecured Interest Expense for such fiscal quarter, to be less than 2.00 to 1.00 at any time.     (e) [Reserved].     (f) Dividends and Other Restricted Payments.  Subject to the following sentence, if an Event  of Default exists, the Parent and the Borrower shall not, and shall not permit any of the other Subsidiaries  to, declare or make any Restricted Payments, except that notwithstanding the existence of an Event of  Default, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the  Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for  the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate  amount not to exceed the amount required for the Parent to maintain its status as a real estate investment trust  and to avoid payment of any income or excise taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the  Internal Revenue Code.  Subsidiaries (other than the Borrower) may make Restricted Payments to the Borrower  and other Subsidiaries at any time.      For purposes of calculating compliance with the financial covenants set forth in this Section 9.1.  and the other covenants contained in this Article IX., each of the following transactions, in each case not  prohibited by the Loan Documents, that occurred during the period for which such financial covenant is to  be calculated, shall be calculated on a pro forma basis assuming that each such transaction had occurred on  the first day of such period (and taking into account (i) cost savings to the extent same would be permitted  to be reflected in pro forma financial information complying with the requirements of GAAP and Article  XI of Regulation S-X under the Securities Act and (ii) such other adjustments as may be reasonably  approved by the Administrative Agent in writing, such approval not to be unreasonably withheld or  delayed): (a) the purchase or other acquisition of (i) property and assets or businesses of any Person or of  assets constituting a business unit, a line of business or division of such Person, (ii) a Property or (iii) Equity  Interests in a Person that, upon the consummation thereof, will be a Subsidiary of such Person (including  as a result of a merger or consolidation); (b) the sale, transfer, license, lease or other disposition (including  any sale and leaseback transaction and any sale or issuance of Equity Interests in a Subsidiary) of any  property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse,  of any notes or accounts receivable or any rights and claims associated therewith; and (c) any incurrence  (including by assumption or Guaranty) or repayment (including by redemption, repayment, retirement or  extinguishment) of any Indebtedness.  All pro forma calculations pursuant to this Section shall be made in  good faith by the chief executive officer, chief financial officer or vice president-treasurer of the Parent.    Section 9.2.  Indebtedness.   The Parent and the Borrower shall not, and shall not permit any of their respective Subsidiaries to,  directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with  respect to, any Indebtedness, except:     (a) the Obligations;     (b) guaranties of the Obligations described in the immediately preceding subsection (a);     (c) in the case of the Borrower and its Subsidiaries, trade debt incurred in the normal course  of business;     (d) in the case of the Borrower and its Subsidiaries, intercompany Indebtedness (including,  without limitation, amounts owing under intercompany leases) owing between Subsidiaries; and  





 






  - 86 -  LEGAL02/40527467v10     (e) Indebtedness which, after giving effect thereto, may be incurred or may remain outstanding  without giving rise to an Event of Default or Default, including without limitation any Default or Event of  Default resulting from noncompliance with any of the terms of Article IX.; provided, however, that the  Parent and the Borrower (i) shall not and shall not permit any of its Subsidiaries to, guarantee or otherwise  become or remain directly or indirectly liable with respect to the Indebtedness of any Unconsolidated  Affiliate, and (ii) shall not permit any Subsidiary (excluding the Borrower) to create, incur, assume or  otherwise become or remain directly or indirectly liable with respect to, any Recourse Indebtedness  (including without limitation Recourse Indebtedness attributable to Accommodation Obligations or other  Guaranties of Indebtedness), in an aggregate amount collectively for both clauses (i) and (ii), in excess of  (A) $50,000,000 for any such Subsidiary or Unconsolidated Affiliate at any time or (B) an amount equal to  5% of Total Asset Value in the aggregate for all Subsidiaries and Unconsolidated Affiliates as measured at  the time of the incurrence of such Indebtedness.    Section 9.3.  Liens.   The Parent and the Borrower shall not, and shall not permit any of their respective Subsidiaries to,  directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to any of its  Property, except:     (a) Permitted Liens;     (b) Liens securing Indebtedness permitted to be incurred and remain outstanding pursuant to  Section 9.2.(d) and (e);     (c) lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor,  materials, supplies and rentals which are being contested in good faith by appropriate proceedings which  operate to suspend the collection thereof and for which adequate reserves have been established in  accordance with GAAP;     (d) with respect to a Property, items listed on Schedule B to the owner’s title insurance policy  of the Borrower or a Subsidiary with respect to such Property, which do not materially detract from the  value of such Property or impair the intended use thereof in the business of the Borrower or such Subsidiary,  as applicable;     (e) Liens in favor of counterparties in respect of any Derivative Contracts;     (f) Liens securing judgments and awards (or appeal or other surety bonds relating to such  judgments) for the payment of money not constituting an Event of Default under Section 10.1.(h);     (g) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash  and Cash Equivalents on deposit in one or more of accounts maintained by the Borrower or any Subsidiary,  in each case granted in the ordinary course of business in favor of the bank or banks with which such  accounts are maintained, securing amounts owing to such bank with respect to cash management and  operating account arrangements, including those involving pooled accounts and netting arrangements;  provided that in no case shall any such Liens secure (either directly or indirectly) the repayment of any  Indebtedness;     (h) licenses or sublicenses granted to others in the ordinary course of business which do not  (i) interfere in any material respect with the business of the Borrower and its Subsidiaries taken as a whole  and (ii) secure any Indebtedness;  





 






  - 87 -  LEGAL02/40527467v10     (i) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code  on the items in the course of collection;     (j) Liens solely on any cash earnest money deposits made by the Borrower or any Subsidiary  in connection with any letter of intent or purchase agreement permitted hereunder;      (k) Liens imposed pursuant to any of the provisions of ERISA or pursuant to any  Environmental Laws not otherwise resulting in a Default or Event of Default; and     (l) other Liens securing obligations (not constituting Indebtedness) outstanding in an  aggregate amount not to exceed $2,000,000 at any time.    Section 9.4.  Negative Pledge.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary (other than an Excluded Subsidiary) to, enter into, assume or otherwise be bound by any  Negative Pledge except for a Negative Pledge contained in (i) an agreement (x) evidencing Indebtedness  which (A) the Parent, the Borrower, such Loan Party or such Subsidiary may create, incur, assume, or  permit or suffer to exist without violation of this Agreement and (B) is secured by a Lien permitted to exist  under the Loan Documents (including Liens permitted under Section 9.3.), and (y) which prohibits the  creation of any other Lien on only the property securing such Indebtedness as of the date such agreement  was entered into; (ii) an agreement relating to the sale of a Subsidiary or assets pending such sale, provided  that in any such case the Negative Pledge applies only to the Subsidiary or the assets that are the subject of  such sale or proceeds or contract related to such sale; (iii) any document or instrument relating to any Lien  permitted under subsections (b), (e), (g), (h), (j) or (k) of Section 9.3. or any Lien referred to in clause (b)  of the definition of the term “Permitted Lien”, provided that in any such case the Negative Pledge applies  only to the assets that are subject to such Lien; or (iv) any Loan Document or Specified Derivatives  Contract.    Section 9.5.  Restrictions on Intercompany Transfers.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary (other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or become  effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary (other than  an Excluded Subsidiary) to: (a) pay dividends or make any other distribution on any of such Subsidiary’s  capital stock or other equity interests owned by the Parent, the Borrower or any other Subsidiary; (b) pay  any Indebtedness owed to the Parent, the Borrower or any other Subsidiary; (c) make loans or advances to  the Parent, the Borrower or any other Subsidiary; or (d) transfer any of its property or assets to the Parent,  the Borrower or any other Subsidiary; other than (i) with respect to the preceding clauses (a) through (d),  those encumbrances or restrictions contained in any Loan Document, (ii) with respect to clause (d),  customary provisions restricting assignment of any lease or other agreement entered into by the Parent, the  Borrower, any other Loan Party or any other Subsidiary in the ordinary course of business, (iii) with respect  to the preceding clauses (a), (c) and (d), which are customary provisions in joint venture agreements and  other similar agreements applicable to joint ventures permitted hereunder and applicable solely to such joint  venture entered into in the ordinary course of business, and (iv) with respect to clause (d), customary  restrictions contained in leases, subleases, licenses or asset sale agreements otherwise permitted hereby so  long as such restrictions relate to the assets subject thereto.    





 






  - 88 -  LEGAL02/40527467v10  Section 9.6.  Merger, Consolidation, Sales of Assets and Other Arrangements.   (a) The Parent and the Borrower shall not, and shall not permit any other Loan Party or any  other Subsidiary to, (w) enter into any transaction of merger, consolidation, reorganization or  recapitalization; (x) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution);  (y) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of  transactions, all or substantially all of its business or assets, or the Equity Interests in any Subsidiary,  whether now owned or hereafter acquired; or (z) acquire all or substantially all of the assets of, or Equity  Interests in, any other Person; provided, however, that:     (i) any Subsidiary (A) may merge with a Loan Party so long as such Loan Party is the  survivor (and in any merger involving the Borrower, the Borrower is the survivor) and (B) that is  not a Loan Party may merge with any other Subsidiary that is not a Loan Party;     (ii) any Subsidiary (A) may sell, transfer or otherwise dispose of its assets to a Loan  Party and (B) that is not a Loan Party may sell, transfer or otherwise dispose of its assets to any  other Subsidiary that is not a Loan Party, in each case, including any disposition that is by its nature  a liquidation;     (iii) (A) a Loan Party (other than the Parent, the Borrower or any Qualifying  Unencumbered Property Owner) and any Subsidiary that is not (and is not required to be) a Loan  Party may convey, sell, transfer or otherwise dispose of, in one transaction or a series of  transactions, all or substantially all of its business or assets, or the capital stock of or other Equity  Interests in any of its Subsidiaries (other than the Borrower or a Qualifying Unencumbered Property  Owner), and (B) any Loan Party and any other Subsidiary may, directly or indirectly, acquire  (whether by purchase, acquisition of Equity Interests of a Person, or as a result of a merger or  consolidation) all or substantially all of the assets of, or acquire Equity Interests in, any other  Person, so long as, in the case of each of clause (A) and (B), (1)  immediately prior thereto, and  immediately thereafter and after giving effect thereto, no Default or Event of Default is or would  be in existence, including, without limitation, a Default or Event of Default resulting from a breach  of any of the covenants contained in Section 9.1.; (2)  to the extent such sale, transfer, disposition  or acquisition of all or substantially all of the assets or Equity Interest of any Subsidiary (other than  the Borrower, a Loan Party or a Qualifying Unencumbered Property Owner) and the consideration  of such transaction equals or exceeds 5% of Total Asset Value immediately prior to giving effect  to such sale, transfer, disposition or acquisition:  (x) the Borrower shall have given the  Administrative Agent and the Lenders at least 15-days prior written notice of such conveyance,  sale, transfer, disposition, acquisition, purchase, merger or consolidation, specifying the nature of  the transaction in reasonable detail; and (y) at the time the Borrower gives notice pursuant to  clause (2)(x) of this subsection, the Borrower shall have delivered to the Administrative Agent for  distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis,  evidencing the continued compliance by the Loan Parties with the terms and conditions of this  Agreement and the other Loan Documents, including without limitation, the covenants contained  in Section 9.1., after giving pro forma effect to such conveyance, sale, transfer, disposition,  acquisition, purchase, merger or consolidation; and (3) in the case of a consolidation or merger  involving the Parent, the Borrower or a Qualifying Unencumbered Property Owner, the Parent, the  Borrower or such Qualifying Unencumbered Property Owner, as the case may be, shall be the  survivor thereof; and     (iv) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries may  lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary  course of their business.   





 






  - 89 -  LEGAL02/40527467v10    Section 9.7.  Plan Assets.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, permit any of its respective assets to become or be deemed to be “plan assets” as defined by  29 C.F.R. 2510.3-101 (as modified by §3(42) of ERISA).    Section 9.8.  Fiscal Year.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or other Subsidiary  to, change its fiscal year from that in effect as of the Agreement Date.    Section 9.9.  Modifications of Organizational Documents.     The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, amend, supplement, restate or otherwise modify its certificate or articles of incorporation or  formation, by-laws, operating agreement, declaration of trust, partnership agreement or other applicable  organizational document if such amendment, supplement, restatement or other modification (a) would  materially and adversely affect the Administrative Agent, the Issuing Banks or the Lenders or their  respective rights and remedies under the Loan Documents or (b) could reasonably be expected to have a  Material Adverse Effect.    Section 9.10.  Transactions with Affiliates.   The Parent and the Borrower shall not permit to exist or enter into, and shall not permit any other  Loan Party or any other Subsidiary to permit to exist or enter into, any transaction (including the purchase,  sale, lease or exchange of any property or the rendering of any service) with any Affiliate, except (a) as set  forth on Schedule 9.10., (b) transactions solely among the Loan Parties, or (c) transactions in the ordinary  course of business of the Parent, the Borrower, such Loan Party or such Subsidiary and upon fair and  reasonable terms which are no less favorable to the Parent, the Borrower, such Loan Party or such  Subsidiary than would be obtained in a comparable arm’s length transaction with a Person that is not an  Affiliate.  Notwithstanding the foregoing, no payments may be made with respect to any items set forth on  such Schedule 9.10. if a Default or Event of Default exists or would result therefrom.    Section 9.11.  Environmental Matters.   The Parent and the Borrower shall not, and shall not permit any other Loan Party, any other  Subsidiary or any other Person to, use, generate, discharge, emit, manufacture, handle, process, store,  release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties  in violation of any Environmental Law, or in a manner that could reasonably be expected to lead to any  claim under Environmental Law or pose a risk to human health, safety or the environment, in each case,  which could reasonably be expected to have a Material Adverse Effect.  Nothing in this Section shall impose  any obligation or liability whatsoever on the Administrative Agent or any Lender.     Section 9.12.  Derivatives Contracts.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, enter into or become obligated in respect of, Derivatives Contracts, other than Derivatives  Contracts entered into by the Parent, the Borrower, such Loan Party or such Subsidiary in the ordinary  course of business and which are intended to establish an effective hedge in respect of liabilities,  commitments or assets held or reasonably anticipated by such Person.  





 






  - 90 -  LEGAL02/40527467v10    ARTICLE X. DEFAULT  Section 10.1.  Events of Default.   Each of the following shall constitute an Event of Default, whatever the reason for such event and  whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or pursuant to  any judgment or order of any Governmental Authority:     (a) Default in Payment.       (i) The Borrower shall fail to pay when due under this Agreement or any other Loan  Document (whether upon demand, at maturity, by reason of acceleration or otherwise) the principal  of any of the Loans or of any Reimbursement Obligation;     (ii) The Borrower shall fail to pay when due under this Agreement or any other Loan  Document (whether upon demand, at maturity, by reason of acceleration or otherwise) any interest  on any of the Loans or on any Reimbursement Obligation and in the case of this subsection (a)(ii)  only, such failure shall continue for a period of 5 days; or     (iii) The Borrower or any other Loan Party shall fail to pay when due under this  Agreement or any other Loan Document (whether upon demand, at maturity, by reason of  acceleration or otherwise) any other payment Obligations owing by the Borrower or such Loan  Party under this Agreement, any other Loan Document or the Fee Letter and in the case of this  subsection (a)(iii) only, such failure shall continue for a period of 5 days after the earlier of (x) the  date upon which a Responsible Officer of the Parent, the Borrower or such other Loan Party obtains  knowledge of such failure or (y) the date upon which the Parent or the Borrower has received  written notice of such failure from the Administrative Agent.     (b) Default in Performance.       (i) Any Loan Party shall fail to perform or observe any term, covenant, condition or  agreement on its part to be performed or observed and contained in Section 7.8., Section 8.4.(i),  Section 9.1., any of Sections 9.4 through Section  9.9. or Section 9.12; or     (ii) Any Loan Party shall fail to perform or observe any term, covenant, condition or  agreement contained in this Agreement or any other Loan Document to which it is a party and not  otherwise mentioned in this Section, and in the case of this subsection (b)(ii) only, such failure shall  continue for a period of 30 days after the earlier of (x) the date upon which a Responsible Officer  of the Parent, the Borrower or such other Loan Party obtains knowledge of such failure or (y) the  date upon which the Parent or the Borrower has received written notice of such failure from the  Administrative Agent.      (c) Misrepresentations.  Any written statement, representation or warranty (other than  (i) financial projections, budgets, forecasts, pro forma financial statements and other forward looking  statements and (ii) general industry information) made or deemed made by or on behalf of any Loan Party  under this Agreement or under any other Loan Document, or any amendment hereto or thereto at any time  furnished by, or at the direction of, any Loan Party to the Administrative Agent, any Issuing Bank or any  Lender, shall at any time prove to have been incorrect or misleading in any material respect when furnished  or made or deemed made.    





 






  - 91 -  LEGAL02/40527467v10   (d) Indebtedness Cross- Default.      (i) The Parent, the Borrower, any other Loan Party or any other Subsidiary shall fail  to make any payment when due and payable (after the applicable grace or cure period, if any,  specified in any agreement or instrument relating to such Recourse Indebtedness) in respect of any  Recourse Indebtedness (other than the Loans and Reimbursement Obligations and any  Indebtedness in respect to any Derivatives Contract) having an aggregate outstanding principal  amount (individually or in the aggregate with all other Indebtedness as to which such a failure  exists) of $50,000,000 or more (all such Indebtedness being “Material Indebtedness”); or      (ii) (x) The maturity of any Material Indebtedness shall have been accelerated in  accordance with the provisions of any indenture, contract or instrument evidencing, providing for  the creation of or otherwise concerning such Material Indebtedness or (y) any Material  Indebtedness shall have been required to be prepaid, repurchased, redeemed or defeased prior to  the stated maturity thereof; or      (iii) Any other event shall have occurred and be continuing which, with or without the  passage of time, the giving of notice, or otherwise, would permit any holder or holders of any  Recourse Indebtedness having an aggregate outstanding principal amount (individually or in the  aggregate with all other Indebtedness as to which such a failure exists) of $75,000,000 or more  (other than the Loans and Reimbursement Obligations and any Indebtedness in respect to any  Derivatives Contract), any trustee or agent acting on behalf of such holder or holders or any other  Person, to accelerate the maturity of any such Recourse Indebtedness or require any such Recourse  Indebtedness to be prepaid, repurchased, redeemed or defeased prior to its stated maturity; or      (iv) The Parent, the Borrower, any other Loan Party or any other Subsidiary shall fail  to pay when due (after giving effect to all applicable notice and cure rights) payments in respect of  Derivatives Contracts in an aggregate amount of $50,000,000 or more.     (e) Voluntary Bankruptcy Proceeding.  The Parent, the Borrower, any other Loan Party or any  other Subsidiary shall:  (i) commence a voluntary case under the Bankruptcy Code or other federal  bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other  Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or  composition or adjustment of debts; (iii) consent to, or fail to contest in a timely and appropriate manner,  any petition filed against it in an involuntary case under such bankruptcy laws or other Applicable Laws or  consent to any proceeding or action described in the immediately following subsection (f); (iv) apply for or  consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of  possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property,  domestic or foreign; (v) admit in writing its inability to pay its debts generally as they become due;  (vi) make a general assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to  creditors under any Applicable Law; or (viii) take any corporate or partnership action for the purpose of  effecting any of the foregoing.     (f) Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced  against the Parent, the Borrower, any other Loan Party or any other Subsidiary in any court of competent  jurisdiction seeking:  (i) relief under the Bankruptcy Code or other federal bankruptcy laws (as now or  hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy,  insolvency, reorganization, winding-up, or composition or adjustment of debts; or (ii) the appointment of a  trustee, receiver, custodian, liquidator or the like of such Person, or of all or any substantial part of the  assets, domestic or foreign, of such Person, and in the case of either clause (i) or (ii) such case or proceeding  shall continue undismissed or unstayed for a period of 60 consecutive days, or an order granting the remedy  





 






  - 92 -  LEGAL02/40527467v10  or other relief requested in such case or proceeding (including, but not limited to, an order for relief under  such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.     (g) Revocation of Loan Documents.  Any Loan Party shall (or shall attempt to) disavow,  revoke or terminate (except as a result of the express terms thereof) any Loan Document or the Fee Letter  to which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court  or before any Governmental Authority the validity or enforceability of any Loan Document or the Fee  Letter or any Loan Document or the Fee Letter shall cease to be in full force and effect (except as a result  of the express terms thereof).     (h) Judgment.   A judgment or order for the payment of money or for an injunction or other  non-monetary relief shall be entered against the Parent, the Borrower, any other Loan Party or any other  Subsidiary by any court or other tribunal and (i) such judgment or order shall continue for a period of 45  days without being paid, stayed or dismissed through appropriate appellate proceedings and (ii) either  (A) the amount of such judgment or order for which insurance has not been acknowledged in writing by  the applicable insurance carrier (or the amount as to which the insurer has denied liability) exceeds,  individually or together with all other such judgments or orders entered against the Loan Parties,  $75,000,000 or (B) in the case of an injunction or other non-monetary relief, such injunction or judgment  or order could reasonably be expected to have a Material Adverse Effect.     (i) Attachment.  A warrant, writ of attachment, execution or similar process shall be issued  against any property of the Borrower, any other Loan Party or any other Subsidiary, which exceeds,  individually or together with all other such warrants, writs, executions and processes, $50,000,000 in  amount and such warrant, writ, execution or process shall not be paid, discharged, vacated, stayed or bonded  for a period of 45 days.    (j) ERISA.  Any ERISA Event shall have occurred that results or could reasonably be expected  to have a Material Adverse Effect.     (k) Loan Documents.  An Event of Default (as defined therein) shall occur under any of the  other Loan Documents.    (l) Change of Control.      (i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of  the Securities Exchange Act of 1934, as amended (the “Exchange Act”))(other than Sam Zell), is  or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,  except that a Person will be deemed to have “beneficial ownership” of all securities that such Person  has the right to acquire, whether such right is exercisable immediately or only after the passage of  time), directly or indirectly, of more than 40.0% of the total voting power of the then outstanding  voting stock of the Parent; or     (ii) during any period of 12 consecutive months ending after the Agreement Date,  individuals who at the beginning of any such 12-month period constituted the Board of Directors  of the Parent (together with any new directors whose election by such Board or whose nomination  for election by the shareholders of the Parent was approved by a vote of a majority of the directors  then still in office who were either directors at the beginning of such period or whose election or  nomination for election was previously so approved) cease for any reason to constitute a majority  of the Board of Directors of the Parent then in office; or    





 






  - 93 -  LEGAL02/40527467v10  (iii) the Parent shall cease to own and control, directly or indirectly, more than 50% of  the outstanding Equity Interests of the Borrower; or    (iv) the Parent shall cease to be the sole general partner of the Borrower or shall cease  to have the sole and exclusive power to exercise all management and control over the Borrower.    Section 10.2.  Remedies Upon Event of Default.   While an Event of Default shall exist, the following provisions shall apply:     (a) Acceleration; Termination of Facilities.      (i) Automatic.  Upon the occurrence of an Event of Default specified in  Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of, and all accrued interest on, the Loans and the  Notes at the time outstanding, (B) an amount equal to the Stated Amount of all Letters of Credit  outstanding as of the date of the occurrence of such Event of Default for deposit into the Letter of  Credit Collateral Account and (C) all of the other Obligations, including, but not limited to, the  other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes  or any of the other Loan Documents shall become immediately and automatically due and payable  without presentment, demand, protest, or other notice of any kind, all of which are expressly waived  by the Parent and the Borrower on behalf of themselves and the other Loan Parties, and (2) the  Commitments and the obligation of each Issuing Bank to issue Letters of Credit hereunder, shall  all immediately and automatically terminate.      (ii) Optional.  While any other Event of Default shall exist, the Administrative Agent  may, and at the direction of the Requisite Lenders shall:  (1) declare (A) the principal of, and  accrued interest on, the Loans and the Notes at the time outstanding, (B) an amount equal to the  Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event  of Default for deposit into the Letter of Credit Collateral Account and (C) all of the other  Obligations, including, but not limited to, the other amounts owed to the Lenders and the  Administrative Agent under this Agreement, the Notes or any of the other Loan Documents to be  forthwith due and payable, whereupon the same shall immediately become due and payable without  presentment, demand, protest or other notice of any kind, all of which are expressly waived by the  Parent and the Borrower on behalf of themselves and the other Loan Parties, and (2) terminate the  Commitments and the obligation of each Issuing Bank to issue Letters of Credit hereunder.       (b) Loan Documents.  The Requisite Lenders may direct the Administrative Agent to, and the  Administrative Agent if so directed shall, exercise any and all of its rights under any and all of the other  Loan Documents.     (c) Applicable Law.  The Requisite Lenders may direct the Administrative Agent to, and the  Administrative Agent if so directed shall, exercise all other rights and remedies it may have under any  Applicable Law.     (d) Appointment of Receiver.  To the extent permitted by Applicable Law, the Administrative  Agent and the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the  Parent, the Borrower, the other Loan Parties and the other Subsidiaries, without notice of any kind  whatsoever and without regard to the adequacy of any security for the Obligations or the solvency of any  party bound for its payment, to take possession of all or any portion of the property and/or the business  operations of the Parent, the Borrower, the other Loan Parties and the other Subsidiaries and to exercise  such power as the court shall confer upon such receiver.  





 






  - 94 -  LEGAL02/40527467v10     (e) Specified Derivatives Contract Remedies.  Notwithstanding any other provision of this  Agreement or other Loan Document, each Specified Derivatives Provider shall have the right, with prompt  notice to the Administrative Agent, but without the approval or consent of or other action by the  Administrative Agent or the Lenders, and without limitation of other remedies available to such Specified  Derivatives Provider under contract or Applicable Law, to undertake any of the following:  (a) to declare  an event of default, termination event or other similar event under any Specified Derivatives Contract and  to create an “Early Termination Date” (as defined therein) in respect thereof, (b) to determine net  termination amounts in respect of any and all Specified Derivatives Contracts in accordance with the terms  thereof, and to set off amounts among such contracts, (c) to set off or proceed against deposit account  balances, securities account balances and other property and amounts held by such Specified Derivatives  Provider to the extent permitted under any applicable Specified Derivatives Contract or Applicable Law,  and (d) to prosecute any legal action against the Borrower, any Loan Party or other Subsidiary to enforce  or collect net amounts owing to such Specified Derivatives Provider pursuant to any Specified Derivatives  Contract.    Section 10.3.  Remedies Upon Default.   Upon the occurrence of a Default specified in Section 10.1.(e), the Commitments and the obligation  of each Issuing Bank to issue Letters of Credit, shall immediately and automatically terminate.      Section 10.4.  Marshaling; Payments Set Aside.   No Lender Party shall be under any obligation to marshal any assets in favor of any Loan Party or  any other party or against or in payment of any or all of the Guaranteed Obligations.  To the extent that any  Loan Party makes a payment or payments to a Lender Party, or a Lender Party enforces its security interest  or exercises its right of setoff, and such payment or payments or the proceeds of such enforcement or setoff  or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or  required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law,  common law or equitable cause, then to the extent of such recovery, the Guaranteed Obligations, or part  thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and  continued in full force and effect as if such payment had not been made or such enforcement or setoff had  not occurred.    Section 10.5.  Allocation of Proceeds.   If an Event of Default exists, all payments received by the Administrative Agent (or any Lender as  a result of its exercise of remedies permitted under Section 12.3.) under any of the Loan Documents in  respect of any Guaranteed Obligations shall be applied in the following order and priority:    (a) to payment of that portion of the Guaranteed Obligations constituting fees,  indemnities, expenses and other amounts, including attorney fees, payable to the Administrative  Agent in its capacity as such, the applicable Issuing Bank in its capacity as such, ratably among the  Administrative Agent and each Issuing Bank in proportion to the respective amounts described in  this clause (a) payable to them;    (b) to payment of that portion of the Guaranteed Obligations constituting fees,  indemnities and other amounts (other than principal and interest) payable to the Lenders under the  Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective  amounts described in this clause (b) payable to them;    





 






  - 95 -  LEGAL02/40527467v10  (c) [reserved];    (d) to payment of that portion of the Guaranteed Obligations constituting accrued and  unpaid interest on the Loans and Reimbursement Obligations, ratably among the Lenders and the  Issuing Banks in proportion to the respective amounts described in this clause (d) payable to them;    (e) [reserved];    (f) to payment of that portion of the Guaranteed Obligations constituting unpaid  principal of the Loans, Reimbursement Obligations, other Letter of Credit Liabilities and payment  obligations then owing under Specified Derivatives Contracts, ratably among the Lenders, the  Issuing Banks and the Specified Derivatives Providers in proportion to the respective amounts  described in this clause (f) payable to them; provided, however, to the extent that any amounts  available for distribution pursuant to this clause are attributable to the issued but undrawn amount  of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent for  deposit into the Letter of Credit Collateral Account; and    (g) the balance, if any, after all of the Guaranteed Obligations have been indefeasibly  paid in full, to the Borrower or as otherwise required by Applicable Law.    Notwithstanding the foregoing, Guaranteed Obligations arising under Specified Derivatives Contracts shall  be excluded from the application described above if the Administrative Agent has not received written  notice thereof, together with such supporting documentation as the Administrative Agent may request, from  the applicable Specified Derivatives Provider.  Each Specified Derivatives Provider not a party to this  Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be  deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the  terms of Article XI. for itself and its Affiliates as if a “Lender” party hereto.  Excluded Swap Obligations  with respect to the Guarantor shall not be paid with amounts received from the Guarantor or the Guarantor’s  assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to  preserve the allocations otherwise set forth above in this Section.    Section 10.6.  Letter of Credit Collateral Account.   (a) As collateral security for the prompt payment in full when due of all Letter of Credit  Liabilities and the other Obligations, the Borrower hereby pledges and grants to the Administrative Agent,  for the ratable benefit of the Administrative Agent, the Issuing Banks and the Revolving Lenders as  provided herein, a security interest in all of its right, title and interest in and to the Letter of Credit Collateral  Account and the balances from time to time in the Letter of Credit Collateral Account (including the  investments and reinvestments therein provided for below).  The balances from time to time in the Letter  of Credit Collateral Account shall not constitute payment of any Letter of Credit Liabilities until applied  by the applicable Issuing Bank as provided herein.  Anything in this Agreement to the contrary  notwithstanding, funds held in the Letter of Credit Collateral Account shall be subject to withdrawal only  as provided in this Section.       (b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and  reinvested by the Administrative Agent in such Cash Equivalents as the Administrative Agent shall  determine in its sole discretion.  All such investments and reinvestments shall be held in the name of and  be under the sole dominion and control of the Administrative Agent for the ratable benefit of the  Administrative Agent, the Issuing Banks and the Revolving Lenders, provided, that all earnings on such  investments will be credited to and retained in the Letter of Credit Collateral Account.  The Administrative  Agent shall exercise reasonable care in the custody and preservation of any funds held in the Letter of Credit  





 






  - 96 -  LEGAL02/40527467v10  Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment  substantially equivalent to that which the Administrative Agent accords other funds deposited with the  Administrative Agent, it being understood that the Administrative Agent shall not have any responsibility  for taking any necessary steps to preserve rights against any parties with respect to any funds held in the  Letter of Credit Collateral Account.     (c) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of  such Letter of Credit, the Borrower and the Revolving Lenders authorize the Administrative Agent to use  the monies deposited in the Letter of Credit Collateral Account to reimburse the applicable Issuing Bank  for the payment made by such Issuing Bank to the beneficiary with respect to such drawing or the payee  with respect to such presentment.      (d) If an Event of Default exists, the Administrative Agent may (and, if instructed by the  Requisite Lenders, shall) in its (or their) discretion at any time and from time to time elect to liquidate any  such investments and reinvestments and apply the proceeds thereof to the Obligations in accordance with  Section 10.5.  Notwithstanding the foregoing, the Administrative Agent shall not be required to liquidate  and release any such amounts if such liquidation or release would result in the amount available in the  Letter of Credit Collateral Account to be less than the Stated Amount of all Extended Letters of Credit that  remain outstanding.       (e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in  or credited to the Letter of Credit Collateral Account exceed the aggregate amount of the Letter of Credit  Liabilities then due and owing, the Administrative Agent shall, from time to time, at the request of the  Borrower, deliver to the Borrower within 10 Business Days after the Administrative Agent’s receipt of such  request from the Borrower, against receipt but without any recourse, warranty or representation whatsoever,  such amount of the credit balances in the Letter of Credit Collateral Account as exceeds the aggregate  amount of Letter of Credit Liabilities at such time.  Upon the expiration, termination or cancellation of an  Extended Letter of Credit for which the Lenders reimbursed (or funded participations in) a drawing deemed  to have occurred under the fourth sentence of Section 2.3.(b) for deposit into the Letter of Credit Collateral  Account but in respect of which the Lenders have not otherwise received payment for the amount so  reimbursed or funded, the Administrative Agent shall promptly remit to the Lenders the amount so  reimbursed or funded for such Extended Letter of Credit that remains in the Letter of Credit Collateral  Account, pro rata in accordance with the respective unpaid reimbursements or funded participations of the  Lenders in respect of such Extended Letter of Credit, against receipt but without any recourse, warranty or  representation whatsoever.  When all of the Obligations shall have been indefeasibly paid in full (other than  contingent indemnification obligations in respect of which no claims have been asserted) and no Letters of  Credit remain outstanding, the Administrative Agent shall deliver to the Borrower, against receipt but  without any recourse, warranty or representation whatsoever, the balances remaining in the Letter of Credit  Collateral Account.     (f) The Borrower shall pay to the Administrative Agent from time to time such fees as the  Administrative Agent normally charges for similar services in connection with the Administrative Agent’s  administration of the Letter of Credit Collateral Account and investments and reinvestments of funds  therein.    Section 10.7.  Rescission of Acceleration by Requisite Lenders.  If at any time after acceleration of the maturity of the Loans and the other Obligations, the Borrower  shall pay all arrears of interest and all payments on account of principal of the Obligations which shall have  become due otherwise than by acceleration (with interest on principal and, to the extent permitted by  Applicable Law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and  





 






  - 97 -  LEGAL02/40527467v10  Defaults (other than nonpayment of principal of and accrued interest on the Obligations due and payable  solely by virtue of acceleration) shall become remedied or waived to the satisfaction of the Requisite  Lenders, then by written notice to the Borrower, the Requisite Lenders may elect, in the sole discretion of  such Requisite Lenders, to rescind and annul the acceleration and its consequences.  The provisions of the  preceding sentence are intended merely to bind all of the Lenders to a decision which may be made at the  election of the Requisite Lenders, and are not intended to benefit the Borrower and do not give the Borrower  the right to require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set  forth herein are satisfied.    Section 10.8.  Performance by Administrative Agent.   If the Parent, the Borrower or any other Loan Party shall fail to perform any covenant, duty or  agreement contained in any of the Loan Documents, the Administrative Agent may, after notice to the  Borrower, perform or attempt to perform such covenant, duty or agreement on behalf of the Parent, the  Borrower or such other Loan Party, as applicable, after the expiration of any cure or grace periods set forth  herein.  In such event, the Borrower shall, at the request of the Administrative Agent, promptly pay any  amount reasonably expended by the Administrative Agent in such performance or attempted performance  to the Administrative Agent, together with interest thereon from the date of such expenditure until paid at  the interest rate applicable to Base Rate Loans or at the Post-Default Rate if then applicable under  Section 2.5.(a).  Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall have  any liability or responsibility whatsoever for the performance of any obligation of the Borrower under this  Agreement or any other Loan Document.    Section 10.9.  Rights Cumulative.   (a) Generally.  The rights and remedies of the Administrative Agent, the Lenders and the  Issuing Banks under this Agreement, each of the other Loan Documents and the Fee Letter and of the  Specified Derivatives Providers under the Specified Derivatives Contract shall be cumulative and not  exclusive of any rights or remedies which any of them may otherwise have under Applicable Law.  In  exercising their respective rights and remedies the Administrative Agent, the Lenders, the Issuing Banks  and the Specified Derivatives Providers may be selective and no failure or delay by any such Lender Party  in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power  or right preclude its other or further exercise or the exercise of any other power or right.     (b) Enforcement by Administrative Agent.  Notwithstanding anything to the contrary  contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder  and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively  in, and all actions and proceedings at law in connection with such enforcement shall be instituted and  maintained exclusively by, the Administrative Agent in accordance with Article X. for the benefit of all the  Lenders and the Issuing Banks; provided that the foregoing shall not prohibit (i) 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, (ii) the Issuing Banks from  exercising the rights and remedies that inure to their benefit (solely in their capacity as an Issuing Bank)  hereunder or under the other Loan Documents, (iii) any Specified Derivatives Provider from exercising the  rights and remedies that inure to its benefit under any Specified Derivatives Contract, (iv) any Lender from  exercising setoff rights in accordance with Section 12.3. (subject to the terms of Section 3.3.), or (v) any  Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency  of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at  any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,  then (x) the Requisite Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant  to Article X. and (y) in addition to the matters set forth in clauses (ii), (iv) and (v) of the preceding proviso  





 






  - 98 -  LEGAL02/40527467v10  and subject to Section 3.3., any Lender may, with the consent of the Requisite Lenders, enforce any rights  and remedies available to it and as authorized by the Requisite Lenders.    ARTICLE XI. THE ADMINISTRATIVE AGENT  Section 11.1.  Appointment and Authorization.   Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take such  action as contractual representative on such Lender’s behalf and to exercise such powers under this  Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the  terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation  of the foregoing, each Lender authorizes and directs the Administrative Agent to enter into the Loan  Documents for the benefit of the Lenders.  Each Lender hereby agrees that, except as otherwise set forth  herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or  the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein,  together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon  all of the Lenders.  Nothing herein shall be construed to deem the Administrative Agent a trustee or  fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those  expressly provided for herein.  Without limiting the generality of the foregoing, the use of the terms  “Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents with reference to the  Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations  arising under agency doctrine of any Applicable Law.  Instead, use of such terms is merely a matter of  market custom, and is intended to create or reflect only an administrative relationship between independent  contracting parties.  The Administrative Agent shall deliver or otherwise make available to each Lender,  promptly upon receipt thereof by the Administrative Agent, copies of each of the financial statements,  certificates, notices and other documents delivered to the Administrative Agent pursuant to Article VIII.  that the Parent or the Borrower is not otherwise required to deliver directly to the Lenders.  The  Administrative Agent will furnish to any Lender, upon the request of such Lender, a copy (or, where  appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the  Administrative Agent by the Parent, the Borrower, any other Loan Party or any other Affiliate of the Parent,  pursuant to this Agreement or any other Loan Document not already delivered or otherwise made available  to such Lender pursuant to the terms of this Agreement or any such other Loan Document.  As to any  matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or  collection of any of the Obligations), the Administrative Agent shall not be required to exercise any  discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully  protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of the  Lenders if explicitly required under any other provision of this Agreement), and such instructions shall be  binding upon all Lenders and all holders of any of the Obligations; provided, however, that, notwithstanding  anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action  which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any  other Loan Document or Applicable Law.  Not in limitation of the foregoing, the Administrative Agent  may exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence  of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative Agent  otherwise.  Without limiting the foregoing, no Lender shall have any right of action whatsoever against the  Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this  Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite  Lenders, or where applicable, all the Lenders.    





 






  - 99 -  LEGAL02/40527467v10  Section 11.2.  Wells Fargo as Lender.   Wells Fargo, as a Lender or as a Specified Derivatives Provider, as the case may be, shall have the  same rights and powers under this Agreement and any other Loan Document and under any Specified  Derivatives Contract, as the case may be, as any other Lender or Specified Derivatives Provider and may  exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders”  shall, unless otherwise expressly indicated, include Wells Fargo in each case in its individual capacity.   Wells Fargo and its Affiliates may each accept deposits from, maintain deposits or credit balances for,  invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally  engage in any kind of business with the Parent, the Borrower, any other Loan Party or any other Affiliate  thereof as if it were any other bank and without any duty to account therefor to the Lenders, the Issuing  Banks or any Specified Derivatives Providers.  Further, the Administrative Agent and any Affiliate may  accept fees and other consideration from the Parent, the Borrower, any other Loan Party or any other  Subsidiary for services in connection with this Agreement or any Specified Derivatives Contract, or  otherwise without having to account for the same to the Lenders, the Issuing Banks or any Specified  Derivatives Providers.  The Issuing Banks and the Lenders acknowledge that, pursuant to such activities,  Wells Fargo or its Affiliates may receive information regarding the Parent, the Borrower, other Loan  Parties, other Subsidiaries and other Affiliates (including information that may be subject to confidentiality  obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no  obligation to provide such information to them.    Section 11.3.  Approvals of Lenders.   All communications from the Administrative Agent to any Lender requesting such Lender’s  determination, consent or approval (a) shall be given in the form of a written notice to such Lender, (b) shall  be accompanied by a description of the matter or issue as to which such determination, consent or approval  is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be  inspected, or shall otherwise describe the matter or issue to be resolved and (c) shall include, if reasonably  requested by such Lender and to the extent not previously provided to such Lender, written materials  provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved.   Unless a Lender shall give written notice to the Administrative Agent that it specifically objects to the  requested determination, consent or approval within 10 Business Days (or such lesser or greater period as  may be specifically required under the express terms of the Loan Documents) of receipt of such  communication, such Lender shall be deemed to have conclusively approved such requested determination,  consent or approval.  The provisions of this Section shall not apply to any amendment, waiver or consent  regarding any of the matters described in Section 12.6.(b) or (c).    Section 11.4.  Notice of Events of Default.   The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a  Default or Event of Default unless the Administrative Agent has received notice from a Lender or the  Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of  Default and stating that such notice is a “notice of default.”  If any Lender (excluding the Lender which is  also serving as the Administrative Agent) becomes aware of any Default or Event of Default, it shall  promptly send to the Administrative Agent such a “notice of default”; provided, a Lender’s failure to  provide such a “notice of default” to the Administrative Agent shall not result in any liability of such Lender  to any other party to any of the Loan Documents.  Further, if the Administrative Agent receives such a  “notice of default,” the Administrative Agent shall give prompt notice thereof to the Lenders.    





 






  - 100 -  LEGAL02/40527467v10  Section 11.5.  Administrative Agent’s Reliance.   Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the  Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by it  under or in connection with this Agreement or any other Loan Document, except for its or their own gross  negligence or willful misconduct in connection with its duties expressly set forth herein or therein as  determined by a court of competent jurisdiction in a final non-appealable judgment.  Without limiting the  generality of the foregoing, the Administrative Agent may consult with legal counsel (including its own  counsel or counsel for the Parent, the Borrower or any other Loan Party), independent public accountants  and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good  faith by it in accordance with the advice of such counsel, accountants or experts.  Neither the Administrative  Agent nor any of its Related Parties: (a) makes any warranty or representation to any Lender, any Issuing  Bank or any other Person or shall be responsible to any Lender, any Issuing Bank or any other Person for  any statement, warranty or representation made or deemed made by the Parent, the Borrower, any other  Loan Party or any other Person in or in connection with this Agreement or any other Loan Document; (b)  shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms,  covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions  precedent under this Agreement or any Loan Document on the part of the Borrower or other Persons or to  inspect the property, books or records of the Borrower or any other Person; (c) shall be responsible to any  Lender or any Issuing Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency  or value of this Agreement or any other Loan Document, any other instrument or document furnished  pursuant thereto; (d) shall have any liability in respect of any recitals, statements, certifications,  representations or warranties contained in any of the Loan Documents or any other document, instrument,  agreement, certificate or statement delivered in connection therewith; and (e) shall incur any liability under  or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate  or other instrument or writing (which may be by telephone, telecopy or electronic mail) believed by it to be  genuine and signed, sent or given by the proper party or parties.  The Administrative Agent may execute  any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall  not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the  absence of gross negligence or willful misconduct in the selection of such agent or attorney-in-fact as  determined by a court of competent jurisdiction in a final non-appealable judgment.    Section 11.6.  Indemnification of Administrative Agent.   Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the  Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such  Lender’s respective Pro Rata Share (determined as of the time the applicable unreimbursed expense or  indemnity payment is sought), from and against any and all liabilities, obligations, losses, damages,  penalties, actions, judgments, suits, reasonable out-of-pocket costs and 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 its capacity as Administrative Agent but not as a Lender) in any way relating to  or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken  or omitted by the Administrative Agent under the Loan Documents (collectively, “Indemnifiable  Amounts”); provided, further, that no Lender shall be liable for any portion of such Indemnifiable Amounts  to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct as  determined by a court of competent jurisdiction in a final, non-appealable judgment; provided, further, that  no action taken in accordance with the directions of the Requisite Lenders (or all of the Lenders, if expressly  required hereunder) shall be deemed to constitute gross negligence or willful misconduct for purposes of  this Section.  Without limiting the generality of the foregoing, each Lender agrees to reimburse the  Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of  the Borrower to do so) promptly upon demand for its Pro Rata Share of any out-of-pocket expenses  





 






  - 101 -  LEGAL02/40527467v10  (including the reasonable fees and expenses of the counsel to the Administrative Agent) incurred by the  Administrative Agent in connection with the preparation, negotiation, execution, administration, or  enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect  to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by the  Administrative Agent to enforce the terms of the Loan Documents and/or collect any Obligations, any  “lender liability” suit or claim brought against the Administrative Agent and/or the Lenders, and any claim  or suit brought against the Administrative Agent and/or the Lenders arising under any Environmental Laws.   Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of  the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is not  entitled to indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the  Administrative Agent will reimburse the Lenders if it is actually and finally determined by a court of  competent jurisdiction that the Administrative Agent is not so entitled to indemnification.  The agreements  in this Section shall survive the payment of the Loans and all other Obligations and the termination of this  Agreement.  If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount  following payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount  pursuant to this Section, the Administrative Agent shall share such reimbursement on a ratable basis with  each Lender making any such payment.    Section 11.7.  Lender Credit Decision, Etc.   Each of the Lenders and each Issuing Bank expressly acknowledges and agrees that neither the  Administrative Agent nor any of its Related Parties has made any representations or warranties to such  Issuing Bank or such Lender and that no act by the Administrative Agent hereafter taken, including any  review of the affairs of the Parent, the Borrower, any other Loan Party or any other Subsidiary or Affiliate,  shall be deemed to constitute any such representation or warranty by the Administrative Agent to any  Issuing Bank or any Lender.  Each of the Lenders and each Issuing Bank acknowledges that it has made its  own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated  hereby, independently and without reliance upon the Administrative Agent, any other Lender or counsel to  the Administrative Agent, or any of their respective Related Parties, and based on the financial statements  of the Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other Affiliates, and inquiries  of such Persons, its independent due diligence of the business and affairs of the Parent, the Borrower, the  other Loan Parties, the other Subsidiaries and other Persons, its review of the Loan Documents, the legal  opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents  and information as it has deemed appropriate.  Each of the Lenders and each Issuing Bank also  acknowledges that it will, independently and without reliance upon the Administrative Agent, any other  Lender or counsel to the Administrative Agent or any of their respective officers, directors, employees and  agents, and based on such review, advice, documents and information as it shall deem appropriate at the  time, continue to make its own decisions in taking or not taking action under the Loan Documents.  The  Administrative Agent shall not be required to keep itself informed as to the performance or observance by  the Parent, the Borrower or any other Loan Party of the Loan Documents or any other document referred  to or provided for therein or to inspect the properties or books of, or make any other investigation of, the  Parent, the Borrower, any other Loan Party or any other Subsidiary.  Except for notices, reports and other  documents and information expressly required to be furnished to the Lenders and the Issuing Banks by the  Administrative Agent under this Agreement or any of the other Loan Documents, the Administrative Agent  shall have no duty or responsibility to provide any Lender or any Issuing Bank with any credit or other  information concerning the business, operations, property, financial and other condition or creditworthiness  of the Parent, the Borrower, any other Loan Party or any other Affiliate thereof which may come into  possession of the Administrative Agent or any of its Related Parties.  Each of the Lenders and each Issuing  Bank acknowledges that the Administrative Agent’s legal counsel in connection with the transactions  contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as  counsel to any Lender or any Issuing Bank.  





 






  - 102 -  LEGAL02/40527467v10     Further, the Administrative Agent shall not be responsible or have any liability for, or have any  duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to  Competitors.  Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be  obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or  Participant is a Competitor or (y) have any liability with respect to or arising out of any assignment or  participation of Commitments or Loans, or disclosure of confidential information, to any Competitor.    Section 11.8.  Successor Administrative Agent.   The Administrative Agent may resign at any time as Administrative Agent under the Loan  Documents by giving written notice thereof to the Lenders and the Borrower.  Upon any such resignation,  the Requisite Lenders shall have the right to appoint a successor Administrative Agent which appointment  shall, provided no Event of Default exists, be subject to the Borrower’s approval, which approval shall not  be unreasonably withheld or delayed (except that the Borrower shall, in all events, be deemed to have  approved each Lender and any of its Affiliates as a successor Administrative Agent).  If no successor  Administrative Agent shall have been so appointed in accordance with the immediately preceding sentence,  and shall have accepted such appointment, within 30 days after the current Administrative Agent’s giving  of notice of resignation, then the current Administrative Agent may, on behalf of the Lenders and the Issuing  Banks, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing  to serve, and otherwise shall be an Eligible Assignee; provided that if the Administrative Agent shall notify  the Borrower and the Lenders that no Lender has accepted such appointment, then such resignation shall  nonetheless become effective in accordance with such notice and (1) the Administrative Agent shall be  discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all  payments, communications and determinations provided to be made by, to or through the Administrative  Agent shall instead be made to each Lender and each Issuing Bank directly, until such time as a successor  Administrative Agent has been appointed as provided for above in this Section; provided, further that such  Lenders and such Issuing Bank so acting directly shall be and be deemed to be protected by all indemnities  and other provisions herein for the benefit and protection of the Administrative Agent as if each such Lender  or each such Issuing Bank were itself the Administrative Agent.  Upon the acceptance of any appointment  as 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 current Administrative Agent, and the current Administrative Agent shall be discharged from its duties  and obligations under the Loan Documents.  Any resignation by an Administrative Agent shall also  constitute the resignation as an Issuing Bank by the Lender then acting as Administrative Agent (the  “Resigning Lender”).  Upon the acceptance of a successor’s appointment as Administrative Agent  hereunder (i) the Resigning Lender shall be discharged from all duties and obligations of an Issuing Bank  hereunder and under the other Loan Documents and (ii) any successor Issuing Bank shall issue letters of  credit in substitution for all Letters of Credit issued by the Resigning Lender as an Issuing Bank outstanding  at the time of such succession (which letters of credit issued in substitutions shall be deemed to be Letters  of Credit issued hereunder) or make other arrangements satisfactory to the Resigning Lender to effectively  assume the obligations of the Resigning Lender with respect to such Letters of Credit.  After any  Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article XI.  shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was  Administrative Agent under the Loan Documents.  Notwithstanding anything contained herein to the  contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any of its  Affiliates by giving the Borrower and each Lender prior written notice.    





 






  - 103 -  LEGAL02/40527467v10  Section 11.9.  Titled Agents.   Each of the Lead Arrangers, the Syndication Agent and the Documentation Agents (each a “Titled  Agent”) in each such respective capacity, assumes no responsibility or obligation hereunder, including,  without limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an agent  hereunder for the Lenders.  The titles given to the Titled Agents are solely honorific and imply no fiduciary  responsibility on the part of the Titled Agents to the Administrative Agent, any Lender, any Issuing Bank,  the Borrower or any other Loan Party and the use of such titles does not impose on the Titled Agents any  duties or obligations greater than those of any other Lender or entitle the Titled Agents to any rights other  than those to which any other Lender is entitled.    Section 11.10.  Specified Derivatives Contracts.   No Specified Derivatives Provider that obtains the benefits of Section 10.5. by virtue of the  provisions hereof or of any Loan Document shall have any right to notice of any action or to consent to,  direct or object to any action hereunder or under any other Loan Document or otherwise in respect of any  Loan Document other than in its capacity as a Lender and, in such case, only to the extent expressly  provided in the Loan Documents.  Notwithstanding any other provision of this Article to the contrary, the  Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements  have been made with respect to, Specified Derivatives Contracts unless the Administrative Agent has  received written notice of such Specified Derivatives Contracts, together with such supporting  documentation as the Administrative Agent may request, from the applicable Specified Derivatives  Provider.    ARTICLE XII. MISCELLANEOUS  Section 12.1.  Notices.   Unless otherwise provided herein (including without limitation as provided in Section 8.5.),  communications provided for hereunder shall be in writing and shall be mailed, telecopied, or delivered as  follows:     If to the Parent or the Borrower:    Equity LifeStyle Properties, Inc.  or  MHC Operating Limited Partnership  Two North Riverside Place, Suite 800  Chicago, Illinois  60606  Attention:  David Eldersveld, General Counsel  Telephone: (312) 279-1442  Email:  david_eldersveld@equitylifestyle.com    with a copy to:    Equity LifeStyle Properties, Inc.  or  MHC Operating Limited Partnership  Two North Riverside Place, Suite 800  Chicago, Illinois  60606  Attention:  Paul Seavey, Executive Vice-President and Chief Financial Officer  





 






  - 104 -  LEGAL02/40527467v10  Telephone: (312) 279-1488  Email:  paul_seavey@equitylifestyle.com     with a copy to (which shall not constitute notice):    Kirkland & Ellis LLP  300 N. LaSalle Street  Chicago, IL 60654  Attention: Daniel J. Perlman, P.C. and Rachel S. Brown, P.C.  Telephone:  (312) 862-5275  Email:  rachel.brown@kirkland.com      If to the Administrative Agent:    Wells Fargo Bank, National Association  10 South Wacker Drive, 32nd Floor  Chicago, Illinois 60606  Attention:  Scott Solis  Telephone: (312) 269-4818  Email:  scott.s.solis@wellsfargo.com     If to the Administrative Agent under Article II.:    Wells Fargo Bank, National Association  600 South 4th St., 8th Floor  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone: 612-667-4773  Email:  david.r.deangelis@wellsfargo.com        If to Wells Fargo Bank, as an Issuing Bank:    Wells Fargo Bank, National Association  10 South Wacker Drive, 32nd Floor  Chicago, Illinois 60606  Attention:  Scott Solis  Telephone: (312) 269-4818  Email:  scott.s.solis@wellsfargo.com     If to Bank of America, as an Issuing Bank:    Bank of America, N.A.  One Fleet Way  PA6-580-02-30  Scranton, PA 18507-1999  Attention: Standby Letter Of Credit Unit  Telephone: 800-370-7519  Email:       Scranton_standby_lc@bankofamerica.com     





 






  - 105 -  LEGAL02/40527467v10   If to any other Lender:    To such Lender’s address or telecopy number as set forth in the applicable Administrative  Questionnaire    or, as to each party at such other address as shall be designated by such party in a written notice to the other  parties delivered in compliance with this Section; provided, a Lender or an Issuing Bank shall only be  required to give notice of any such other address to the Administrative Agent and the Borrower.  All such  notices and other communications shall be effective (i) if mailed, upon the first to occur of receipt or the  expiration of three (3) days after the deposit in the United States Postal Service mail, postage prepaid and  addressed to the address of the Borrower or the Administrative Agent, the Issuing Banks and Lenders at the  addresses specified; (ii) if hand delivered or sent by overnight courier, when delivered; or (iii) if delivered  in accordance with Section 8.5. to the extent applicable; provided, however, that, in the case of the  immediately preceding clauses (i) and (ii), non-receipt of any communication as of the result of any change  of address of which the sending party was not notified or as the result of a refusal to accept delivery shall  be deemed receipt of such communication.  Notwithstanding the immediately preceding sentence, all  notices or communications to the Administrative Agent, the Issuing Banks or any Lender under Article II.  shall be effective only when actually received.  None of the Administrative Agent, any Issuing Bank or any  Lender shall incur any liability to any Loan Party (nor shall the Administrative Agent incur any liability to  the Issuing Banks or the Lenders) for acting upon any telephonic notice referred to in this Agreement which  the Administrative Agent, such Issuing Bank or such Lender, as the case may be, believes in good faith to  have been given by a Person authorized to deliver such notice or for otherwise acting in good faith  hereunder.  Failure of a Person designated to get a copy of a notice to receive such a copy shall not affect  the validity of notice properly given to another Person.    Section 12.2.  Expenses.   The Borrower agrees (a) to pay or reimburse the Administrative Agent for all of its reasonable and  invoiced out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and  execution of, and any amendment, supplement or modification to, any of the Loan Documents (including  due diligence expense and reasonable travel expenses related to closing), and the consummation of the  transactions contemplated hereby and thereby, including the reasonable and invoiced fees and  disbursements of outside counsel to the Administrative Agent and all costs and expenses of the  Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar information  transmission systems in connection with the Loan Documents, (b) to pay to each Issuing Bank all  reasonable out-of-pocket costs and expenses incurred by such Issuing Bank in connection with the issuance,  amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (c) to pay  or reimburse the Administrative Agent, each Issuing Bank and the Lenders for all their out-of-pocket costs  and expenses incurred in connection with the enforcement or preservation of any rights under the Loan  Documents and the Fee Letter, including the reasonable fees and disbursements of their respective counsel  and any payments in indemnification or otherwise payable by the Lenders to the Administrative Agent  pursuant to the Loan Documents, (d) to pay, and indemnify and hold harmless the Administrative Agent,  each Issuing Bank and the Lenders from, any and all recording and filing fees, if any, which may be payable  or determined to be payable in connection with the execution and delivery of any of the Loan Documents,  or consummation of any amendment, supplement or modification of, or any waiver or consent under or in  respect of, any Loan Document and (e) to the extent not already covered by any of the preceding  subsections, to pay or reimburse the fees and disbursements of counsel to the Administrative Agent, any  Issuing Bank and any Lender incurred in connection with the representation of the Administrative Agent,  any Issuing Bank or such Lender in any matter relating to or arising out of any bankruptcy or other  proceeding of the type described in Sections 10.1.(e) or 10.1.(f), including, without limitation (i) any motion  for relief from any stay or similar order, (ii) the negotiation, preparation, execution and delivery of any  





 






  - 106 -  LEGAL02/40527467v10  document relating to the Obligations and (iii) the negotiation and preparation of any debtor-in-possession  financing or any plan of reorganization of the Parent, the Borrower or any other Loan Party, whether  proposed by the Parent, the Borrower, such Loan Party, the Lenders or any other Person, and whether such  fees and expenses are incurred prior to, during or after the commencement of such proceeding or the  confirmation or conclusion of any such proceeding.  If the Borrower shall fail to pay any amounts required  to be paid by it pursuant to this Section, the Administrative Agent and/or the Lenders may pay such amounts  on behalf of the Borrower and such amounts shall be deemed to be Obligations owing hereunder.    Section 12.3.  Setoff.   Subject to Section 3.3. and in addition to any rights now or hereafter granted under Applicable Law  and not by way of limitation of any such rights, the Borrower hereby authorizes the Administrative Agent,  each Issuing Bank, each Lender, each Affiliate of the Administrative Agent, any Issuing Bank or any  Lender, and each Participant, at any time or from time to time while an Event of Default exists, without  notice to the Borrower or to any other Person, any such notice being hereby expressly waived, but in the  case of an Issuing Bank, a Lender, an Affiliate of an Issuing Bank or a Lender, or a Participant subject to  receipt of the prior written consent of the Requisite Lenders exercised in their sole discretion, to set off and  to appropriate and to apply any and all deposits (general or special, including, but not limited to,  indebtedness evidenced by certificates of deposit, whether matured or unmatured, but excluding trust,  payroll and tax withholding accounts) and any other indebtedness at any time held or owing by the  Administrative Agent, such Issuing Bank, such Lender, any Affiliate of the Administrative Agent, such  Issuing Bank or such Lender, or such Participant, to or for the credit or the account of the Borrower against  and on account of any of the Obligations, irrespective of whether or not any or all of the Loans and all other  Obligations have been declared to be, or have otherwise become, due and payable as permitted by  Section 10.2., and to the extent permitted under Applicable Law such Obligations as shall be contingent or  unmatured.  Notwithstanding anything to the contrary in this Section, if any Defaulting Lender shall  exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section 3.9. 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 (y) such 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.    Section 12.4.  Litigation; Jurisdiction; Other Matters; Waivers.     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR  CONTROVERSY BETWEEN OR AMONG THE PARENT, THE BORROWER, THE  ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY OF THE LENDERS WOULD BE  BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN  DELAY AND EXPENSE TO THE PARTIES.  ACCORDINGLY, TO THE EXTENT PERMITTED BY  APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT, EACH ISSUING  BANK, THE PARENT, AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY  JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR  TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY  HERETO ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE FEE  LETTER OR IN CONNECTION WITH ANY COLLATERAL OR BY REASON OF ANY OTHER SUIT,  CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE PARENT, THE  BORROWER, THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY OF THE LENDERS  OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.    





 






  - 107 -  LEGAL02/40527467v10   (b) EACH OF THE BORROWER AND THE PARENT IRREVOCABLY AND  UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION  OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER  IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY  LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY  RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE  TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE  COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND OF THE  UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION  OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT  OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL  COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH  ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED  IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER  PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT  SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY  ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING  RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE  BORROWER OR THE PARENT OR EITHER OR THEIR RESPECTIVE PROPERTIES IN THE  COURTS OF ANY JURISDICTION.  EACH PARTY FURTHER WAIVES ANY OBJECTION THAT  IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING  IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN  INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.  THE  CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE  THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR  ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT, ANY ISSUING  BANK OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER  APPROPRIATE JURISDICTION.     (c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH  PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE  LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS  AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN  DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE  TERMINATION OF THIS AGREEMENT.    Section 12.5.  Successors and Assigns.   (a) Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon  and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby,  except that none of the Parent, the Borrower or any other Loan Party may assign or otherwise transfer any  of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each  Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder or under  any other Loan Document except (i) to an Eligible Assignee in accordance with the provisions of the  immediately following subsection (b), (ii) by way of participation in accordance with the provisions of the  immediately following subsection (d) or (iii) by way of pledge or assignment of a security interest subject  to the restrictions of the immediately following subsection (e) (and, subject to the last sentence of the  immediately following subsection (b), any other attempted assignment or transfer by any party hereto shall  





 






  - 108 -  LEGAL02/40527467v10  be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any  Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants  to the extent provided in the immediately following subsection (d) and, to the extent expressly contemplated  hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right,  remedy or claim under or by reason of this Agreement.      (b) Assignments by Lenders.  Any Lender may at any time assign to one or more Eligible  Assignees (an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all  or a portion of its Commitment, if any, and the Loans at the time owing to it); provided that any such  assignment shall be subject to the following conditions:      (i) Minimum Amounts.       (A) in the case of an assignment of the entire remaining amount of an assigning  Lender’s Commitment and/or the Loans of a given Class at the time owing to it, or in the  case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no  minimum amount need be assigned; and     (B) subject to Section 12.5.(b)(iii)(D), in any case not described in the  immediately preceding subsection (A), the aggregate amount of a Commitment (which for  this purpose includes Loans of such Class outstanding thereunder) or, if the Commitments  are not then in effect, the principal outstanding balance of the Loans of such Class of the  assigning Lender subject to each such assignment (in each case, determined as of the date  the Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption,  as of the Trade Date) shall not be less than $5,000,000; provided, however, that if after  giving effect to such assignment, the amount of the Commitment held by such assigning  Lender or the outstanding principal balance of the Loans of such Class of such assigning  Lender, as applicable, would be less than $5,000,000, then such assigning Lender shall  assign the entire amount of its Commitment and the Loans of such Class at the time owing  to it.      (ii) Proportionate Amounts.  Each partial assignment shall be made as an assignment  of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement  with respect to the Class of Loan or the Commitment assigned, except that this clause (ii) shall not  prohibit any Lender from assigning all or a portion of its rights and obligations among separate  Classes of Loans and Commitments on a non-rata basis.     (iii) Required Consents.  No consent shall be required for any assignment except:     (A) the consent of the Borrower (such consent not to be unreasonably withheld  or delayed) shall be required unless (x) an Event of Default shall exist at the time of such  assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved  Fund; provided that the Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative Agent  within 10 Business Days after having received notice thereof;     (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of (x) a  Revolving Commitment if such assignment is to a Person that is not already a Revolving  Lender, an Affiliate of such a Lender or an Approved Fund with respect to such a Lender  





 






  - 109 -  LEGAL02/40527467v10  or (y) a Term Loan to a Person who is not a Lender, an Affiliate of a Lender or Approved  Fund;      (C) the consent of the applicable Issuing Bank (such consent not to be  unreasonably withheld or delayed) shall be required for any assignment in respect of a  Revolving Commitment; and     (D) except as provided in Section 12.5.(b)(i)(A), the consent of the  Administrative Agent and, so long as no Event of Default shall exist, the Borrower (each  such consent not to be unreasonably withheld or delayed), shall be required for any  assignment of a Commitment (or, if the Commitments are not then in effect or in the case  of Term Loans, the principal outstanding balance of the Loans of such Class), which is less  than $5,000,000 in an aggregate amount (unless such amount represents the entire amount  of the assigning Lender’s Commitment or, if the Commitments are not then in effect or in  the case of Term Loans, the entire amount of all Loans of such Class at the time owing to  it); provided that the Borrower shall be deemed to have consented to any such assignment  unless it shall object thereto by written notice to the Administrative Agent within 10  Business Days after having received notice thereof.     (iv) Assignment and Assumption; Notes.  The parties to each assignment shall (A)  execute and deliver to the Administrative Agent an Assignment and Assumption, together with a  processing and recordation fee of $4,500 for each assignment (which fee the Administrative Agent  may, in its sole discretion, elect to waive), and the assignee, if it is not a Lender, shall deliver to the  Administrative Agent an Administrative Questionnaire and (B) deliver the documents required  under Section 3.10.(g).  If requested by the transferor Lender or the Assignee, upon the  consummation of any assignment, the transferor Lender, the Administrative Agent and the  Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee and  such transferor Lender, as appropriate.     (v) No Assignment to Certain Persons.  No such assignment shall be made to (A) the  Parent, the Borrower or any of the Affiliates or Subsidiaries of the Parent or the Borrower, (B) to  any Defaulting Lender or any of its Subsidiaries, or to any Person who, upon becoming a Lender  hereunder, would constitute any of the foregoing Persons described in this clause (B) or (C) a  Competitor.     (vi) No Assignment to Natural Persons.  No such assignment shall be made to a natural  person (or holding company, investment vehicle or trust for, or owned and operated for the primary  benefit of a natural person).     (vii) Certain Additional Payments.  In connection with any assignment of rights and  obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and  until, in addition to the other conditions thereto set forth herein, the parties to 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 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, the Issuing Banks and  each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as  appropriate) its full pro rata share of all Loans and, in the case of a Defaulting Lender that is a  





 






  - 110 -  LEGAL02/40527467v10  Revolving Lender, participations in Letters of Credit in accordance with its Revolving Commitment  Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and  obligations of any Defaulting Lender hereunder shall become effective under Applicable Law  without compliance with the provisions of this paragraph, then the assignee of such interest shall  be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance  occurs.    Subject to acceptance and recording thereof by the Administrative Agent pursuant to the immediately  following subsection (c), from and after the effective date specified in each Assignment and Assumption,  the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the  assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and  Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and  Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 4.4.,  12.2. and 12.9. and the other provisions of this Agreement and the other Loan Documents as provided in  Section 12.10. with respect to facts and circumstances occurring prior to the effective date of such  assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender having been a Defaulting Lender.  Any assignment or transfer by a Lender of rights  or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes  of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance  with the immediately following subsection (d).     (c) Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent  of the Borrower, shall maintain at the Principal Office a copy of each Assignment and Assumption delivered  to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of,  and principal amounts and stated interest of the Loans owing to, each Lender pursuant to the terms hereof  from time to time (the “Register”).  The entries in the Register shall be conclusive (absent manifest error),  and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded  in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,  notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower and  any Lender, at any reasonable time and from time to time upon reasonable prior notice.  It is the intent of  the parties to this Agreement that the Loans and Commitments be in registered form within the meanings  of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and  any successor provisions).     (d) Participations.  Any Lender may at any time, without the consent of, or notice to, the Parent,  the Borrower, the Administrative Agent, the Issuing Banks, sell participations to any Person (other than a  Defaulting Lender or a natural person (or holding company, investment vehicle or trust for, or owned and  operated for the primary benefit of a natural person) or the Borrower or any of the Borrower’s Affiliates or  Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this  Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that  (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain  solely responsible to the other parties hereto for the performance of such obligations and (iii) the Parent,  the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall continue to deal solely  and directly with such Lender in connection with such Lender’s rights and obligations under this  Agreement.  Any agreement 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  





 






  - 111 -  LEGAL02/40527467v10  (i) increase such Lender’s Commitment, (ii) extend the date fixed for the payment of principal on the Loans  or portions thereof owing to such Lender, (iii) reduce the rate at which interest is payable thereon or  (iv) release the Guarantor from its Obligations under the Guaranty, in each case, as applicable to that portion  of such Lender’s rights and/or obligations that are subject to the participation.  The Borrower agrees that  each Participant shall be entitled to the benefits of Sections 3.10., 4.1., 4.4. (subject to the requirements and  limitations therein, including the requirements under Section 3.10.(g) (it being understood that the  documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this  Section; provided that such Participant (A) agrees to be subject to the provisions of Section 4.6. as if it were  an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment  under Sections 4.1. or 3.10., with respect to any participation, than its participating Lender would have been  entitled to receive, except to the extent such entitlement to receive a greater payment results from a  Regulatory Change that occurs after the Participant acquired the applicable participation.  Each Lender that  sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate  with the Borrower to effectuate the provisions of Section 4.6. with respect to any Participant.  To the extent  permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 12.3. as  though it were a Lender; provided that such Participant agrees to be subject to Section 3.3. as though it were  a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent  of the Borrower, maintain a register on which it enters the name and address of each Participant and the  principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under  the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to  disclose all or any portion of the Participant Register (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.     (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or  any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge  or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment  shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee  for such Lender as a party hereto.       (f) No Registration.  Each Lender agrees that, without the prior written consent of the  Borrower and the Administrative Agent, it will not make any assignment hereunder in any manner or under  any circumstances that would require registration or qualification of, or filings in respect of, any Loan or  Note under the Securities Act or any other securities laws of the United States of America or of any other  jurisdiction.     (g) USA Patriot Act Notice; Compliance.  In order for the Administrative Agent to comply  with “know your customer” and anti-money laundering rules and regulations, including without limitation,  the Patriot Act, prior to any Lender that is organized under the laws of a jurisdiction outside of the United  States of America becoming a party hereto, the Administrative Agent may request, and such Lender shall  provide to the Administrative Agent, its name, address, tax identification number and/or such other  identification information as shall be necessary for the Administrative Agent to comply with federal law.      (h) Competitors.    





 






  - 112 -  LEGAL02/40527467v10    (i)  No assignment or participation shall be made to any Person that was a Competitor as  of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to  sell and assign or participate all or a portion of its rights and obligations under this Agreement to  such Person (unless the Borrower has consented to such assignment or participation in writing in  its sole and absolute discretion, in which case such Person will not be considered a Competitor for  the purpose of such assignment or participation).  For the avoidance of doubt, with respect to any  assignee that becomes a Competitor after the applicable Trade Date, (x) such assignee shall not  retroactively be disqualified from becoming a Lender and  (y) the execution by the Borrower of an  Assignment and Assumption with respect to such assignee will not by itself result in such assignee  no longer being considered a Competitor. Any assignment in violation of this clause (h)(i) shall not  be void, but the other provisions of this clause (h) shall apply.      (ii) If any assignment or participation is made to any Competitor without the  Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a  Competitor after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon  notice to the applicable Competitor and the Administrative Agent, (A) terminate any Revolving  Commitment of such Competitor and repay all obligations of the Borrower owing to such  Competitor in connection with such Revolving Commitment, (B) in the case of outstanding Term  Loans held by Competitors, purchase or prepay such Term Loan by paying the lesser of (x) the  principal amount thereof and (y) the amount that such Competitor paid to acquire such Term Loans,  in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts)  payable to it hereunder and/or (C) require such Competitor to assign, without recourse (in  accordance with and subject to the restrictions contained in this Section 12.5), all of its interest,  rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x)  the principal amount thereof and (y) the amount that such Competitor paid to acquire such interests,  rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other  than principal amounts) payable to it hereunder.      (iii) Notwithstanding anything to the contrary contained in this Agreement,  Competitors (A) will not (x) have the right to receive information, reports or other materials  provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or  participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any  electronic site established for the Lenders or confidential communications from counsel to or  financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any  consent to any amendment, waiver or modification of, or any action under, and for the purpose of  any direction to the Administrative Agent or any Lender to undertake any action (or refrain from  taking any action) under this Agreement or any other Loan Document, each Competitor will be  deemed to have consented in the same proportion as the Lenders that are not Competitors consented  to such matter, and (y) for purposes of voting on any plan of reorganization, each Competitor party  hereto hereby agrees (1) not to vote on such plan, (2) if such Competitor does vote on such plan of  reorganization notwithstanding the restriction in the foregoing clause (1), such vote will be deemed  not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy  Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted  in determining whether the applicable class has accepted or rejected such plan of reorganization in  accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other  Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the  Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing  clause (2).    





 






  - 113 -  LEGAL02/40527467v10  (iv) The Administrative Agent shall have the right, and the Borrower hereby expressly  authorizes the Administrative Agent, to (A) post the list of Competitors provided by the Borrower  and any updates thereto from time to time (collectively, the “Competitors List”) on the IntraLinks,  SyndTrak or other similar information transmission systems, including that portion of such  platform that is designated for “public side” Lenders and/or (B) provide the Competitors List to  each Lender requesting the same.    Section 12.6.  Amendments and Waivers.   (a) Generally.  Except as otherwise expressly provided in this Agreement (including Section  4.2.(b)), (i) any consent or approval required or permitted by this Agreement or any other Loan Document  to be given by the Lenders may be given, (ii) any provision of this Agreement or of any other Loan  Document may be amended, (iii) the performance or observance by the Parent, the Borrower or any other  Loan Party or any other Subsidiary of any terms of this Agreement or such other Loan Document may be  waived, and (iv) the continuance of any Default or Event of Default may be waived (either generally or in  a particular instance and either retroactively or prospectively) with, but only with, the written consent of  the Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders), and,  in the case of an amendment to any Loan Document, the written consent of each Loan Party which is party  thereto.  Any term of this Agreement or of any other Loan Document relating solely to the rights or  obligations of the Lenders of one Class, and not Lenders of the other Class, may be amended, and the  performance or observance by the Borrower or any other Loan Party or any Subsidiary of any such terms  may be waived (either generally or in a particular instance and either retroactively or prospectively) with,  and only with, the written consent of the Requisite Class Lenders for such Class of Lenders (and, in the  case of an amendment to any Loan Document, the written consent of each Loan Party which is a party  thereto).       (b) Additional Lender Consents.  In addition to the foregoing requirements, no amendment,  waiver or consent shall:     (i) increase (or reinstate) a Commitment of a Lender or subject a Lender to any  additional obligations without the written consent of such Lender;     (ii) reduce the principal of, or interest that has accrued or the rates of interest that will  be charged on the outstanding principal amount of, any Loans or other Obligations, or postpone  any date fixed for, or forgive, any payment of principal of, or interest on, any Loan or for the  payment of Fees or any other Obligations, in each case, owing to any of the Lenders, without the  written consent of each Lender directly affected thereby; provided, however, only the written  consent of the Requisite Lenders shall be required for the waiver of interest payable at the Post- Default Rate, retraction of the imposition of interest at the Post-Default Rate and amendment of the  definition of “Post-Default Rate”;     (iii) reduce the amount of any Fees payable to a Lender without the written consent of  such Lender;     (iv) modify the definitions of “Revolving Termination Date” (except in accordance  with Section 2.13.) or “Revolving Commitment Percentage”, modify clause (a) of the definition of  the term “Termination Date”, or extend the expiration date of any Letter of Credit beyond the  Revolving Termination Date, in each case, without the written consent of each Revolving Lender;    





 






  - 114 -  LEGAL02/40527467v10   (v) modify the definition of “Term Loan Termination Date” or modify clause (b) of  the definition of the term “Termination Date”, in each case, without the written consent of each  Term Loan Lender;     (vi) while any Term Loans remain outstanding, amend, modify or waive (A)  Section 5.2. or any other provision of this Agreement if the effect of such amendment, modification  or waiver is to require the Revolving Lenders to make Revolving Loans or the Issuing Banks to  issue Letters of Credit when such Lenders or the Issuing Banks, as applicable, would not otherwise  be required to do so, or (B) the L/C Commitment Amount, in each case, without the prior written  consent of the Requisite Class Lenders for the Revolving Lenders;     (vii) modify the definition of “Pro Rata Share” or amend or otherwise modify the  provisions of Section 3.2., Section 3.3., or Section 10.5. without the written consent of each Lender;     (viii) amend this Section or amend the definitions of the terms used in this Agreement  or the other Loan Documents insofar as such definitions affect the substance of this Section without  the written consent of each Lender;     (ix) modify the definition of the term “Requisite Lenders” or modify in any other  manner the number or percentage of all of the Lenders required to make any determinations or  waive any rights hereunder or to modify any provision hereof without the written consent of each  Lender;     (x) modify the definition of the term “Requisite Class Lenders” as it relates to a Class  of Lenders, or modify in any other manner the number or percentage of a Class of Lenders required  to make any determinations or waive any rights hereunder or to modify any provision hereof, in  each case, solely with respect to such Class of Lenders, without the written consent of each Lender  in such Class;     (xi) release the Guarantor from its obligations under the Guaranty without the written  consent of each Lender; or     (xii) amend, or waive the Borrower’s compliance with, Section 2.15. without the  written consent of each Revolving Lender.    Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or  disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which  by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent  of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting  Lender may not be increased, reinstated or extended without the written consent of such Defaulting Lender  and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender  that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the  written consent of such Defaulting Lender.       (c) Amendment of Administrative Agent’s Duties, Etc.  No amendment, waiver or consent  unless in writing and signed by the Administrative Agent, in addition to the Lenders required hereinabove  to take such action, shall affect the rights or duties of the Administrative Agent under this Agreement or  any of the other Loan Documents.  Any amendment, waiver or consent relating to Section 2.3. or the  obligations of the Issuing Banks under this Agreement or any other Loan Document shall, in addition to the  Lenders required hereinabove to take such action, require the written consent of the applicable Issuing  Bank.  Any amendment, waiver or consent with respect to any Loan Document that (i) diminishes the rights  





 






  - 115 -  LEGAL02/40527467v10  of a Specified Derivatives Provider in a manner or to an extent dissimilar to that affecting the Lenders or  (ii) increases the liabilities or obligations of a Specified Derivatives Provider shall, in addition to the  Lenders required hereinabove to take such action, require the consent of the Lender that is (or having an  Affiliate that is) such Specified Derivatives Provider.  No waiver shall extend to or affect any obligation  not expressly waived or impair any right consequent thereon and any amendment, waiver or consent shall  be effective only in the specific instance and for the specific purpose set forth therein.  No course of dealing  or delay or omission on the part of the Administrative Agent or any Lender in exercising any right shall  operate as a waiver thereof or otherwise be prejudicial thereto.  Any Event of Default occurring hereunder  shall continue to exist until such time as such Event of Default is waived in writing in accordance with the  terms of this Section, notwithstanding any attempted cure or other action by the Parent, the Borrower, any  other Loan Party or any other Person subsequent to the occurrence of such Event of Default; provided,  however, that any Event of Default resulting solely from the failure of any Loan Parties to give notice of a  Default pursuant as required by Section 8.4.(i) shall be deemed to be waived upon the cure or waiver of  such Default without any further action hereunder.  Except as otherwise explicitly provided for herein or in  any other Loan Document, no notice to or demand upon the Borrower shall entitle the Borrower to other or  further notice or demand in similar or other circumstances.     (d) Technical Amendments.  Notwithstanding anything to the contrary in this Section 12.6., if  the Administrative Agent and the Borrower have jointly identified an ambiguity, omission, mistake or  defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the  Administrative Agent and the Borrower shall be permitted to amend such provision or provisions to cure  such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect  the interests of the Lenders and the Issuing Banks.  Any such amendment shall become effective without  any further action or consent of any of other party to this Agreement and the Administrative Agent shall  promptly forward any such amendment to the Lenders.    Section 12.7.  Nonliability of Administrative Agent and Lenders.   (a) The relationship between the Borrower, on the one hand, and the Lenders, the Issuing  Banks and the Administrative Agent, on the other hand, shall be solely that of borrower and lender.  None  of the Administrative Agent, any Issuing Bank or any Lender shall have any fiduciary responsibilities to  the Parent, the Borrower or any other Loan Party and no provision in this Agreement or in any of the other  Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to  create any fiduciary duty owing by the Administrative Agent, any Issuing Bank or any Lender to any  Lender, the Parent, the Borrower, any Subsidiary or any other Loan Party.  None of the Administrative  Agent, any Issuing Bank or any Lender undertakes any responsibility to the Parent or the Borrower to  review or inform the Parent or the Borrower of any matter in connection with any phase of the business or  operations of the Parent or the Borrower.     (b) In connection with all aspects of the Loan Documents, the Borrower and the Parent  acknowledge and agree that: (i) this Agreement and each transaction contemplated hereby is an arm’s- length commercial transaction between the Borrower, on the one hand, and the Lenders, the Issuing Banks  and the Administrative Agent, on the other hand, and the Borrower is capable of evaluating and  understanding and understand and accept the terms, risks and conditions of this Agreement and the other  Loan Documents, (ii) none of the Lenders, the Issuing Banks or the Administrative Agent has assumed or  will assume an advisory, agency or fiduciary responsibility in the Borrower’s, the Parent’s or their  respective Affiliates’ favor with respect to any of the transaction contemplated by the Loan Documents and  none of the Lenders, the Issuing Banks or the Administrative Agent has any obligation to the Borrower, the  Parent or their respective Affiliates with respect to the transaction contemplated by the Loan Documents  except those obligations expressly set forth in the Loan Documents, (iii) the Lenders, the Issuing Banks,  the Administrative Agent and their respective Affiliates may be engaged in a broad range of transactions  





 






  - 116 -  LEGAL02/40527467v10  that involve interests that differ from the Borrower, the Parent and their respective Affiliates and none of  the Lenders, the Issuing Banks or the Administrative Agent shall have any obligation to disclose any of  such interests, and (iv) none of the Lenders, the Issuing Banks or the Administrative Agent has provided  any legal, accounting, regulatory or tax advice with respect to this Agreement and the other Loan  Documents and the Borrower, the Parent and their respective Affiliates have consulted their own legal,  accounting, regulatory and tax advisors to the extent they have deemed appropriate.      Section 12.8.  Confidentiality.   Except as otherwise provided by Applicable Law, the Administrative Agent, each Issuing Bank  and each Lender shall maintain the confidentiality of all Information (as defined below) in accordance with  its customary procedure for handling confidential information of this nature and in accordance with safe  and sound banking practices but in any event may make disclosure: (a) to its Affiliates and to its and its  Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (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) subject to an  agreement containing provisions substantially the same as (or at least as restrictive as) those of this Section,  to (i) any actual or proposed Assignee, Participant or other transferee in connection with a potential transfer  of any Commitment or participation therein as permitted hereunder, or (ii) any actual or prospective, direct  or indirect, counterparty (or its advisors) to any swap or derivative transaction relating to any Loan Party  and its obligations; (c) as required or requested by any Governmental Authority or representative thereof  or pursuant to legal process or in connection with any legal proceedings, or as otherwise required by  Applicable Law (and prior to such disclosure, to the extent permitted under Applicable Law, the  Administrative Agent, the applicable Issuing Bank or applicable Lender shall provide written notice thereof  to the Borrower); (d) to the Administrative Agent’s, Issuing Bank’s or such Lender’s independent auditors  and other professional advisors (provided they shall be notified of the confidential nature of the  information); (e) in connection with the exercise of any remedies under any Loan Document (or any  Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any such  Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to the extent such  Information (i) becomes publicly available other than as a result of a breach of this Section actually known  by the Administrative Agent or such Lender to be a breach of this Section or (ii) becomes available to the  Administrative Agent, any Lender or any Affiliate of the Administrative Agent or any Lender on a  nonconfidential basis from a source other than the Parent, the Borrower or any of their respective Affiliates;  (g) to the extent requested by, or required to be disclosed to, any nationally recognized rating agency or  regulatory or similar authority (including any self-regulatory authority, such as the National Association of  Insurance Commissioners) having or purporting to have jurisdiction over it; (h) to bank trade publications,  such information to consist of deal terms and other information customarily found in such publications;  (i) to any other party hereto; and (j) with the consent of the Borrower.  Notwithstanding the foregoing, the  Administrative Agent, each Issuing Bank, each Lender, and their respective Affiliates may disclose any  such confidential information, without notice to the Parent, the Borrower or any other Loan Party, to  Governmental Authorities or self-regulatory authorities (including, without limitations, bank and securities  examiners) having or claiming to have authority to regulate or oversee any aspect of the respective  businesses of the Administrative Agent, any Issuing Bank, any Lender or any of their respective Affiliates  in connection with any regulatory examination of the Administrative Agent, such Issuing Bank or such  Lender or in accordance with the regulatory compliance policy of the Administrative Agent, such Issuing  Bank, such Lender or such Affiliate.  As used in this Section, the term “Information” means all information  received from the Parent, the Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to  any Loan Party or any of their respective businesses, other than any such information that is available to  the Administrative Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by  the Parent, the Borrower, any other Loan Party, any other Subsidiary or any Affiliate.  Any Person required  to maintain the confidentiality of Information as provided in this Section shall be considered to have  





 






  - 117 -  LEGAL02/40527467v10  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.  The  obligations of any Person required to maintain the confidentiality of Information as provided in this Section  shall survive the termination of this Agreement but shall terminate on the date one year following the latest  Termination Date.      Section 12.9.  Indemnification.   (a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the  Administrative Agent, each of the Lenders, each Issuing Bank and their respective Related Parties (each  referred to herein as an “Indemnified Party”) from and against any and all of the following (collectively,  the “Indemnified Costs”): actual losses, costs, claims, penalties, damages, liabilities, deficiencies,  judgments or out-of-pocket expenses of every kind and nature (including, without limitation, amounts paid  in settlement, court costs and the fees and disbursements of counsel incurred in connection with any  litigation, investigation, claim or proceeding or any advice rendered in connection therewith, but excluding  Indemnified Costs indemnification in respect of which is specifically covered by Section 3.10. or 4.1. or  expressly excluded from the coverage of such Sections) incurred by an Indemnified Party in connection  with, arising out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or settlement,  consent decree or other proceeding (the foregoing referred to herein as an “Indemnity Proceeding”) which  is in any way related directly or indirectly to: (i) this Agreement or any other Loan Document or the  transactions contemplated thereby; (ii) the making of any Loans or issuance of Letters of Credit hereunder;  (iii) any actual or proposed use by the Borrower of the proceeds of the Loans or Letters of Credit; (iv) the  Administrative Agent’s, any Issuing Bank’s or any Lender’s entering into this Agreement; (v) the fact that  the Administrative Agent, the Issuing Banks and the Lenders have established the credit facility evidenced  hereby in favor of the Borrower; (vi) the fact that the Administrative Agent, the Issuing Banks and the  Lenders are creditors of the Borrower and have or are alleged to have information regarding the financial  condition, strategic plans or business operations of the Parent, the Borrower and the Subsidiaries; (vii) the  fact that the Administrative Agent, the Issuing Banks and the Lenders are material creditors of the Borrower  and are alleged to influence directly or indirectly the business decisions or affairs of the Parent, the  Borrower and the Subsidiaries or their financial condition; (viii) the exercise of any right or remedy the  Administrative Agent, the Issuing Banks or the Lenders may have under this Agreement or the other Loan  Documents; (ix) any civil penalty or fine assessed by the OFAC against, and all costs and expenses  (including out-of-pocket counsel fees and disbursements) incurred in connection with defense thereof by,  the Administrative Agent, any Issuing Bank or any Lender as a result of conduct of the Parent, the Borrower,  any other Loan Party or any other Subsidiary that violates a sanction administered or enforced by the OFAC;  or (x) any violation or non-compliance by the Parent, the Borrower, any other Loan Party or any other  Subsidiary of any Applicable Law (including any Environmental Law) including, but not limited to, any  Indemnity Proceeding commenced by (A) the Internal Revenue Service or state taxing authority or (B) any  Governmental Authority or other Person under any Environmental Law, including any Indemnity  Proceeding commenced by a Governmental Authority or other Person seeking remedial or other action to  cause the Parent or its Subsidiaries (or its respective properties) (or the Administrative Agent and/or the  Lenders and/or the Issuing Banks as successors to the Borrower) to be in compliance with such  Environmental Laws; provided, however, that the Borrower shall not be obligated to indemnify any  Indemnified Party for any acts or omissions of such Indemnified Party in connection with matters described  in this subsection to the extent arising from the gross negligence, bad faith or willful misconduct of such  Indemnified Party, as determined by a court of competent jurisdiction in a final, non-appealable judgment.   This paragraph (a) of this Section shall not apply with respect to Taxes other than any Taxes that represent  losses, claims or damages arising from any non-Tax claim.     (b) The Borrower’s indemnification obligations under this Section shall apply to all Indemnity  Proceedings arising out of, or related to, the foregoing whether or not an Indemnified Party is a named party  





 






  - 118 -  LEGAL02/40527467v10  in such Indemnity Proceeding.  In this connection, this indemnification shall cover all Indemnified Costs  of any Indemnified Party in connection with any deposition of any Indemnified Party or compliance with  any subpoena (including any subpoena requesting the production of documents).  This indemnification  shall, among other things, apply to any Indemnity Proceeding commenced by other creditors of the Parent,  the Borrower or any Subsidiary, any shareholder of the Parent or any Subsidiary (whether such  shareholder(s) are prosecuting such Indemnity Proceeding in their individual capacity or derivatively on  behalf of the Borrower), any account debtor of the Parent, the Borrower or any Subsidiary or by any  Governmental Authority.       (c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency  of any bankruptcy proceeding filed by or against the Parent, the Borrower and/or any Subsidiary.     (d) An Indemnified Party may conduct its own investigation and defense of, and may  formulate its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as  provided above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed by the  Borrower.  No action taken by legal counsel chosen by an Indemnified Party in investigating or defending  against any such Indemnity Proceeding shall vitiate or in any way impair the obligations and duties of the  Borrower hereunder to indemnify and hold harmless each such Indemnified Party; provided, however, that  if (i) the Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower has  provided evidence reasonably satisfactory to such Indemnified Party that the Borrower has the financial  wherewithal to reimburse such Indemnified Party for any amount paid by such Indemnified Party with  respect to such Indemnity Proceeding, such Indemnified Party shall not settle or compromise any such  Indemnity Proceeding without the prior written consent of the Borrower (which consent shall not be  unreasonably withheld or delayed).  Notwithstanding the foregoing, an Indemnified Party may settle or  compromise any such Indemnity Proceeding without the prior written consent of the Borrower where (x) no  monetary relief is sought against such Indemnified Party in such Indemnity Proceeding or (y) there is an  allegation of a violation of law by such Indemnified Party.     (e) If and to the extent that the obligations of the Borrower under this Section are  unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the  payment and satisfaction of such obligations which is permissible under Applicable Law.     (f) The Borrower’s obligations under this Section shall survive any termination of this  Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are in  addition to, and not in substitution of, any of the other obligations set forth in this Agreement or any other  Loan Document to which it is a party.    References in this Section 12.9. to “Lender” or “Lenders” shall be deemed to include such Persons (and  their Affiliates) in their capacity as Specified Derivatives Providers.    Section 12.10.  Termination; Survival.   This Agreement shall terminate at such time as (a) all of the Commitments have been terminated,  (b) all Letters of Credit have terminated or expired or have been canceled (other than Extended Letters of  Credit in respect of which the Borrower has satisfied the requirements to provide Cash Collateral as required  in Section 2.3.(b)), (c) none of the Lenders is obligated any longer under this Agreement to make any Loans  and each Issuing Bank is no longer obligated to issue Letters of Credit under this Agreement and (d) all  Obligations (other than obligations which survive as provided in the following sentence) have been paid  and satisfied in full. The indemnities to which the Administrative Agent, the Issuing Banks and the Lenders  are entitled under the provisions of Sections 3.10., 4.1., 4.4., 11.6., 12.2. and 12.9. and any other provision  of this Agreement and the other Loan Documents, and the provisions of Section 12.4., shall continue in full  





 






  - 119 -  LEGAL02/40527467v10  force and effect and shall protect the Administrative Agent, the Issuing Banks and the Lenders  (i) notwithstanding any termination of this Agreement, or of the other Loan Documents, against events  arising after such termination as well as before and (ii) at all times after any such party ceases to be a party  to this Agreement with respect to all matters and events existing on or prior to the date such party ceased  to be a party to this Agreement.    Section 12.11.  Severability of Provisions.   If any provision of this Agreement or the other Loan Documents shall be determined by a court of  competent jurisdiction to be invalid or unenforceable, that provision shall be deemed severed from the Loan  Documents, and the validity, legality and enforceability of the remaining provisions shall remain in full  force as though the invalid, illegal, or unenforceable provision had never been part of the Loan Documents.    Section 12.12.  GOVERNING LAW.   THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE  WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,  AND TO BE FULLY PERFORMED, IN SUCH STATE.    Section 12.13.  Counterparts.   To facilitate execution, this Agreement and any amendments, waivers, consents or supplements  may be executed in any number of counterparts as may be convenient or required (which may be effectively  delivered by facsimile, in portable document format (“PDF”) or other similar electronic means).  It shall  not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required  to bind any party, appear on each counterpart.  All counterparts shall collectively constitute a single  document.  It shall not be necessary in making proof of this document to produce or account for more than  a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.      Section 12.14.  Obligations with Respect to Loan Parties.   The obligations of the Parent and the Borrower to direct or prohibit the taking of certain actions by  the other Loan Parties as specified herein shall be absolute and not subject to any defense the Parent or the  Borrower may have that the Parent or the Borrower does not control such Loan Parties.    Section 12.15.  Independence of Covenants.   All covenants hereunder shall be given in any jurisdiction independent effect so that if a particular  action or condition is not permitted by any of such covenants, the fact that it would be permitted by an  exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of  a Default or an Event of Default if such action is taken or condition exists.    Section 12.16.  Limitation of Liability.   None of the Administrative Agent, any Issuing Bank, any Lender or any of their respective Related  Parties shall have any liability with respect to, and each of the Parent and the Borrower hereby waives,  releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or  consequential damages suffered or incurred by the Parent or the Borrower in connection with, arising out  of, or in any way related to, this Agreement, any of the other Loan Documents or the Fee Letter, or any of  the transactions contemplated by this Agreement or any of the other Loan Documents.  Each of the Parent  and the Borrower hereby waives, releases, and agrees not to sue the Administrative Agent, any Issuing  





 






  - 120 -  LEGAL02/40527467v10  Bank, any Lender or any of their respective Related Parties for punitive damages in respect of any claim in  connection with, arising out of, or in any way related to, this Agreement, any of the other Loan Documents,  the Fee Letter, or any of the transactions contemplated by this Agreement or financed hereby.    Section 12.17.  Entire Agreement.   This Agreement, the Notes, the other Loan Documents and the Fee Letter embody the final, entire  agreement among the parties hereto and supersede any and all prior commitments, agreements,  representations, and understandings, whether written or oral, relating to the subject matter hereof and  thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral  agreements or discussions of the parties hereto.  To the extent any term of this Agreement is inconsistent  with a term of any other Loan Document to which the parties of this Agreement are party, the term of this  Agreement shall control to the extent of such inconsistency.  There are no oral agreements among the parties  hereto.    Section 12.18.  Construction.   The Administrative Agent, each Issuing Bank, each Lender, the Parent and the Borrower  acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded  an opportunity to review this Agreement and the other Loan Documents with its legal counsel and agree  that this Agreement and the other Loan Documents shall be construed as if jointly drafted by the  Administrative Agent, each Issuing Bank, each Lender, the Parent and the Borrower.    Section 12.19.  Headings.   The paragraph and section headings in this Agreement are provided for convenience of reference  only and shall not affect its construction or interpretation.    Section 12.20.  Acknowledgement and Consent to Bail-in of Affected Financial Institutions.     Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability of  any Affected Financial Institution arising under any Loan Document, to the extent such liability is  unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority  and agrees and consents to, and acknowledges and agrees to be bound by:      (a) the application of any Write-Down and Conversion Powers by the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  Affected Financial Institution; and     (b) the effects of any Bail-in Action on any such liability, including, if applicable:    (i) a reduction in full or in part or cancellation of any such liability;    (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such Affected  Financial Institution, its parent undertaking, or a bridge  institution that may be issued to it or otherwise conferred on it, and that such shares or  other instruments of ownership will be accepted by it in lieu of any rights with respect to  any such liability under this Agreement or any other Loan Document; or    





 






  - 121 -  LEGAL02/40527467v10  (iii) the variation of the terms of such liability in connection with the exercise of the  write-down and conversion powers of the applicable Resolution Authority.    Section 12.21.  Acknowledgement Regarding any Supported QFCs.   To the extent that the Loan Documents provide support, through a guarantee or otherwise, for  a  Derivatives Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit  Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together  with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the  Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of  New York and/or of the United States or any other state of the United States):    In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and  the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC  and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit  Support) from such Covered Party will be effective to the same extent as the transfer would be effective  under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any  such interest, obligation and rights in property) were governed by the laws of the United States or a state of  the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject  to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that  might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States. Without limitation of the foregoing,  it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall  in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit  Support    Section 12.22.  No Novation.   (a) Existing Credit Agreement.  Upon satisfaction of the conditions precedent set forth in  Sections 5.1. and 5.2. of this Agreement, this Agreement and the other Loan Documents shall exclusively  control and govern the mutual rights and obligations of the parties hereto with respect to the Existing Credit  Agreement, and the Existing Credit Agreement shall be superseded in all respects, in each case, on a  prospective basis only.     (b) NO NOVATION.  THE PARTIES HERETO HAVE ENTERED INTO THIS  AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS  OWING UNDER, THE EXISTING CREDIT AGREEMENT.  THE PARTIES DO NOT INTEND THIS  AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS  AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE  CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE  BORROWER UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR  ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT  AGREEMENT).      





 






  - 122 -  LEGAL02/40527467v10  [Signatures on Following Pages]  





 






 





 






  [Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      WELLS FARGO BANK, NATIONAL ASSOCIATION, as  Administrative Agent, as an Issuing Bank and as a Lender      By: ________________________________        Name:    Scott S. Solis       Title:      Managing Director                                                              [Signatures Continued on Next Page]    





 






[Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      BANK OF AMERICA, N.A., as an Issuing Bank, a  Syndication Agent and as a Lender      By: ________________________________        Name: ___________________________        Title: ____________________________                                                               [Signatures Continued on Next Page]        Cheryl Sneor Vice President 





 






  Internal Use  [Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      REGIONS BANK, as a Lender          By: ________________________________        Name: _Nicholas R. Frerman__________       Title: _Vice President________________                                                               [Signatures Continued on Next Page]       





 






  [Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      TRUIST BANK, as a Lender      By: ________________________________        Name: Ryan Almond       Title:   Director                                                              [Signatures Continued on Next Page]       





 






 





 






 





 






 





 






 





 






 





 






  LEGAL02/40527467v8  [Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      MORGAN STANLEY BANK, N.A., as a Lender      By: ________________________________        Name: Michael King        Title: Authorized Signatory         [Signatures Continued on Next Page] 





 






  LEGAL02/40527467v8  [Signature Page to Third Amended and Restated Credit Agreement   with MHC Operating Limited Partnership]      GOLDMAN SACHS BANK USA, as a Lender      By: ________________________________        Name: Kevin Raisch       Title: Authorized Signatory        





 






  LEGAL02/40527467v10  SCHEDULE I    Revolving Commitments and Term Loans Commitments    Lender Revolving  Commitment  Term Loan  Commitment   Wells Fargo Bank, National Association $60,000,000 $45,000,000  Bank of America, N.A. $60,000,000 $45,000,000  Regions Bank $55,000,000 $40,000,000  Truist Bank $55,000,000 $40,000,000  U.S. Bank National Association $55,000,000 $40,000,000  Bank of Montreal $40,000,000 $25,000,000  Capital One, National Association $40,000,000 $25,000,000  PNC Bank, National Association $40,000,000 $25,000,000  Associated Bank, National Association $25,000,000 $15,000,000  Morgan Stanley Bank, N.A.  $35,000,000 $0  Goldman Sachs Bank USA $35,000,000 $0  TOTAL $500,000,000 $300,000,000    





 






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





 






  A-2        ______________________________   [Assignor [is] [is not] a Defaulting Lender]    2. Assignee[s]:  ______________________________        ______________________________   [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]    3. Borrower(s):  MHC Operating Limited Partnership    4. Administrative Agent: Wells Fargo Bank, National Association, as the administrative agent  under the Credit Agreement    5. Credit Agreement: The $800,000,000.00 Third Amended and Restated Credit Agreement  dated as of April 19, 2021 among MHC Operating Limited Partnership,  Equity LifeStyle Properties, Inc., the Lenders parties thereto, Wells  Fargo Bank, National Association, as Administrative Agent, and the  other parties thereto.    6.  Assigned Interest[s]:    Assignor[s]5 Assignee[s]6  Facility  Assigned7  Aggregate Amount  of  Commitment/Loans  for all Lenders8  Amount of  Commitment/Loans  Assigned8  Percentage  Assigned of  Commitment/  Loans9  CUSIP  Number     $ $ %      $ $ %      $ $ %     [7. Trade Date:  ______________]10    [Page break]    5 List each Assignor, as appropriate.  6 List each Assignee, as appropriate.  7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being  assigned under this Assignment (e.g., “Revolving Credit Commitment,” “Term Loan Commitment,” etc.)  8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made  between the Trade Date and the Effective Date.  9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  10 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to  be determined as of the Trade Date.  





 






  A-3        Effective Date:   _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND  WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE  REGISTER THEREFOR.]    The terms set forth in this Assignment and Assumption are hereby agreed to:    ASSIGNOR[S]11  [NAME OF ASSIGNOR]      By:______________________________     Name:  _________________________      Title:  __________________________    [NAME OF ASSIGNOR]      By:______________________________     Name:  _________________________      Title:  __________________________    ASSIGNEE[S]12  [NAME OF ASSIGNEE]      By:______________________________     Name:  _________________________      Title:  __________________________      [NAME OF ASSIGNEE]      By:______________________________     Name:  _________________________      Title:  __________________________      11 Add additional signature blocks as needed.   12 Add additional signature blocks as needed.   





 






  A-4  [Consented to and]13 Accepted:    WELLS FARGO BANK, NATIONAL ASSOCIATION, as     Administrative Agent      By: _________________________________    Name:  _____________________________    Title:  ______________________________    [Consented to:]14     [NAME OF RELEVANT PARTY]      By: ________________________________        Name: ___________________________        Title: ____________________________       13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit  Agreement.  14 To be added only if the consent of the Borrower and/or other parties (e.g. an Issuing Bank) is required by  the terms of the Credit Agreement.    





 






  A-5  ANNEX 1    [__________________]15    STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION     1. Representations and Warranties.       1.1 Assignor[s].  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and  clear of any lien, encumbrance or other adverse claim, (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 Document16, (ii) the execution, legality, validity,  enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii)  the financial condition of the Parent, the Borrower, any of their respective Subsidiaries or Affiliates or  any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by  the Parent, the Borrower, any of their respective Subsidiaries or Affiliates or any other Person of any of  their respective obligations under any Loan Document.     1.2.  Assignee[s].  [The][Each] Assignee (a) represents and warrants that (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and  to consummate the transactions contemplated hereby and to become a Lender under the Credit  Agreement, (ii) it meets all the requirements to be an Eligible Assignee as defined in the Credit  Agreement (subject to such consents, if any, as may be required under such definition), (iii) from and  after the Effective Date specified for this Assignment and Assumption, it shall be bound by the provisions  of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest,  shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to  acquire assets of the type represented by the Assigned Interest and either it, or the person exercising  discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of  such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the  opportunity to receive copies of the most recent financial statements delivered pursuant to Section 8.1 or  8.2, as applicable, and such other documents and information as it deems appropriate to make its own  credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]  Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent, the  Assignor or any other Lender and based on such documents and information as it has deemed appropriate,  made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase  [the][such] Assigned Interest, and (vii) 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][such] Assignee; and (b) agrees that (i) it will,  independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender,  and based on such documents and information as it shall deem appropriate at the time, continue to make  its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform    15 Describe Credit Agreement at option of Administrative Agent.  16 The term “Loan Document” should be conformed to that used in the Credit Agreement.  





 






  A-6  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.     2.  Payments.  From and after the Effective Date, the Administrative Agent shall make all  payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and  other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the  Effective Date specified for this Assignment and Assumption.  The Assignor[s] and the Assignee[s] shall  make all appropriate adjustments in payments by the Administrative Agent for periods prior to such  Effective Date or with respect to the making of this assignment directly between themselves.     3.  General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the  benefit of, the parties hereto and their respective successors and assigns.  This Assignment and  Assumption may be executed in any number of counterparts, which together shall constitute one  instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption  by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and  Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with,  the law of the State of New York.  





 






  B-1  EXHIBIT B    FORM OF THIRD AMENDED AND RESTATED GUARANTY       THIS GUARANTY dated as of April 19, 2021 (this “Guaranty”) executed and delivered by  EQUITY LIFESTYLE PROPERTIES, INC. (the “Guarantor”) in favor of WELLS FARGO BANK,  NATIONAL ASSOCIATION, in its capacity as Administrative Agent (the “Administrative Agent”) for  the Lenders under that certain Third Amended and Restated Credit Agreement dated as of the date hereof  (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  by and among MHC Operating Limited Partnership (the “Borrower”), the Guarantor, the financial  institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), the  Administrative Agent and the other parties thereto, for its benefit and the benefit of the Lenders and the  Specified Derivatives Providers (the Administrative Agent, the Lenders and the Specified Derivatives  Providers, each individually a “Guarantied Party” and collectively, the “Guarantied Parties”).     WHEREAS, pursuant to the Credit Agreement, the Guarantied Parties have agreed to make  available to the Borrower certain financial accommodations on the terms and conditions set forth in the  Credit Agreement;     WHEREAS, the Guarantor previously executed and delivered to the Administrative Agent that  certain Second Amended, Restated and Consolidated Guaranty dated as of October 27, 2017 (as amended  and in effect immediately prior to the date hereof, the “Existing Guaranty”);     WHEREAS, the Specified Derivatives Providers may from time to time enter into Specified  Derivatives Contracts, as applicable, with the Borrower and/or its Subsidiaries;     WHEREAS, the Borrower and the Guarantor, though separate legal entities, are mutually  dependent on each other in the conduct of their respective businesses as an integrated operation and have  determined it to be in their mutual best interests to obtain financing from the Guarantied Parties through  their collective efforts;     WHEREAS, the Guarantor acknowledges that it will receive direct and indirect benefits from the  Guarantied Parties making such financial accommodations available to the Borrower under the Credit  Agreement and, accordingly, the Guarantor is willing to guarantee the Borrower’s obligations to the  Guarantied Parties on the terms and conditions contained herein; and     WHEREAS, the amendment and restatement of the Existing Guaranty effected by the  Guarantor’s execution and delivery of this Guaranty is a condition to the Guarantied Parties’ making, and  continuing to make, such financial accommodations to the Borrower.     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged by the Guarantor, the Guarantor agrees that the Existing Guaranty is amended  and restated as follows:     Section 1.  Guaranty.  The Guarantor hereby absolutely, irrevocably and unconditionally  guaranties the due and punctual payment and performance when due, whether at stated maturity, by  acceleration or otherwise, of all of the following (collectively referred to as the “Guarantied  Obligations”), without duplication: (a) all indebtedness and obligations owing by the Borrower or any  other Loan Party to any Lender, any Issuing Bank or the Administrative Agent under or in connection  with the Credit Agreement or any other Loan Document, including without limitation, the repayment of  





 






  B-2  all principal of the Revolving Loans and Term Loans, and the Reimbursement Obligations, and the  payment of all interest, fees, charges, attorneys’ fees and other amounts payable to any Lender, any  Issuing Bank or the Administrative Agent thereunder or in connection therewith; (b) all existing or future  payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other  than any Excluded Swap Obligation); (c) any and all extensions, renewals, modifications, amendments or  substitutions of the foregoing; (d) all reasonable out-of-pocket expenses, including, without limitation,  reasonable attorneys’ fees and disbursements, that are incurred by the Administrative Agent or any other  Guarantied Party in the enforcement of any of the foregoing or any obligation of such Guarantor  hereunder; and (e) all other Guaranteed Obligations.     Section 2.  Guaranty of Payment and Not of Collection.  This Guaranty is a guaranty of payment,  and not of collection, and a debt of the Guarantor for its own account.  Accordingly, the Guarantied  Parties shall not be obligated or required before enforcing this Guaranty against the Guarantor: (a) to  pursue any right or remedy the Guarantied Parties may have against the Borrower, any other Loan Party  or any other Person or commence any suit or other proceeding against the Borrower, any other Loan Party  or any other Person in any court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of  the Borrower, any other Loan Party or any other Person; or (c) to make demand of the Borrower, any  other Loan Party or any other Person or to enforce or seek to enforce or realize upon any collateral  security held by the Guarantied Parties which may secure any of the Guarantied Obligations.       Section 3.  Guaranty Absolute.  The Guarantor guarantees that the Guarantied Obligations will be  paid strictly in accordance with the terms of the documents evidencing the same, regardless of any  Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of  the Guarantied Parties with respect thereto.  The liability of the Guarantor under this Guaranty shall be  absolute, irrevocable and unconditional in accordance with its terms and shall remain in full force and  effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise  affected by, any circumstance or occurrence whatsoever, including without limitation, the following  (whether or not the Guarantor consents thereto or has notice thereof):     (a) (i) any change in the amount, interest rate or due date or other term of any of the  Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or any portion of  the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the departure from or other  indulgence with respect to, the Credit Agreement, any other Loan Document, any Specified Derivatives  Contract, or any other document, instrument or agreement evidencing or relating to any Guarantied  Obligations (the “Guarantied Documents”), or (iv) any waiver, renewal, extension, addition, or  supplement to, or deletion from, or any other action or inaction under or in respect of, any Guarantied  Document or any assignment or transfer of any Guarantied Document;     (b) any lack of validity or enforceability of any Guarantied Document or any assignment or  transfer of any Guarantied Document;     (c) any furnishing to any of the Guarantied Parties of any security for any of the Guarantied  Obligations, or any sale, exchange, release or surrender of, or realization on, any collateral securing any  of the Guarantied Obligations;     (d) any settlement or compromise of any of the Guarantied Obligations, any security  therefor, or any liability of any other party with respect to any of the Guarantied Obligations, or any  subordination of the payment of any of the Guarantied Obligations to the payment of any other liability of  the Borrower or any other Loan Party;    





 






  B-3   (e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,  liquidation or other like proceeding relating to the Guarantor, the Borrower, any other Loan Party or any  other Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court,  in any such proceeding;     (f) any act or failure to act by the Borrower, any other Loan Party or any other Person which  may adversely affect the Guarantor’s subrogation rights, if any, against any other Loan Party or any other  Person to recover payments made under this Guaranty;     (g) any nonperfection or impairment of any security interest or other Lien on any collateral,  if any, securing in any way any of the Guarantied Obligations;     (h) any application of sums paid by the Borrower, or any other Person with respect to the  liabilities of the any Loan Party to the Guarantied Parties, regardless of what liabilities of the Borrower  remain unpaid;     (i) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the  exercise thereof;      (j) any defense, set off, claim or counterclaim (other than payment and performance in full  of the Guarantied Obligations) which may at any time be available to or be asserted by the Borrower, or  any Loan Party or any other Person against the Administrative Agent or any other Guarantied Party;      (k) any change in corporate existence, structure or ownership of the Borrower or any other  Loan Party;      (l) any statement, representation or warranty made or deemed made by or on behalf of the  Borrower, or any other Loan Party under any Guarantied Document, or any amendment hereto or thereto,  proves to have been incorrect or misleading in any respect; or     (m) any other circumstance which might otherwise constitute a defense available to, or a  discharge of, the Guarantor hereunder (other than payment and performance in full or release or  termination of the obligations of the Guarantor hereunder as provided by the terms of the Credit  Agreement).       Section 4.  Action with Respect to Guarantied Obligations.  The Guaranteed Parties may, at any  time and from time to time, without the consent of, or notice to, the Guarantor, and without discharging  the Guarantor from its obligations hereunder, take any and all actions described in Section 3. and may  otherwise: (a) amend, modify, alter or supplement the terms of any of the Guarantied Obligations,  including, but not limited to, extending or shortening the time of payment of any of the Guarantied  Obligations or changing the interest rate that may accrue on any of the Guarantied Obligations;  (b) amend, modify, alter or supplement any Guarantied Document; (c) sell, exchange, release or otherwise  deal with all, or any part, of any collateral securing any of the Guarantied Obligations; (d) release any  Loan Party or other Person liable in any manner for the payment or collection of any of Guarantied  Obligations; (e) exercise, or refrain from exercising, any rights against the Borrower, any other Loan  Party or any other Person; and (f) apply any sum, by whomsoever paid or however realized, to the  Guarantied Obligations in such order as the Guarantied Parties shall elect.     Section 5.  Representations and Warranties.  The Guarantor hereby makes to the Administrative  Agent and the other Guarantied Parties all of the representations and warranties made by the Borrower  





 






  B-4  with respect to or in any way relating to the Guarantor in the Credit Agreement and the other Guarantied  Documents, as if the same were set forth herein in full.     Section 6.  Covenants.  The Guarantor will comply with all covenants which the Borrower is to  cause the Guarantor to comply with under the terms of the Credit Agreement or any of the other  Guarantied Documents.     Section 7.  Waiver. The Guarantor, to the fullest extent permitted by Applicable Law, hereby  waives notice of acceptance hereof or any presentment, demand, protest or notice of any kind, and any  other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent  might vary the risk of the Guarantor or which otherwise might operate to discharge the Guarantor from its  obligations hereunder.     Section 8.  Inability to Accelerate Loan.  If the Guarantied Parties or any of them are prevented  under Applicable Law or otherwise from demanding or accelerating payment of any one of the  Guarantied Obligations by reason of any automatic stay or otherwise, the Administrative Agent and/or the  other Guarantied Parties shall be entitled to receive from the Guarantor, upon demand therefor, the sums  which otherwise would have been due had such demand or acceleration occurred.     Section 9.  Reinstatement of Guarantied Obligations.  If claim is ever made on the Administrative  Agent or any other Guarantied Party for repayment or recovery of any amount or amounts received in  payment or on account of any of the Guarantied Obligations, and the Administrative Agent or such other  Guarantied Party repays all or part of said amount by reason of (a) any judgment, decree or order of any  court or administrative body of competent jurisdiction, or (b) any settlement or compromise of any such  claim effected by the Administrative Agent or such other Guarantied Party with any such claimant  (including the Borrower or a trustee in bankruptcy for the Borrower), then and in such event the  Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding on it,  notwithstanding any revocation hereof or the cancellation of any of the Guarantied Documents, or any  other instrument evidencing any liability of the Borrower, and the Guarantor shall be and remain liable to  the Administrative Agent or such other Guarantied Party for the amounts so repaid or recovered to the  same extent as if such amount had never originally been paid to the Administrative Agent or such other  Guarantied Party.     Section 10.  Subrogation.  Upon the making by the Guarantor of any payment hereunder for the  account of another Loan Party, the Guarantor shall be subrogated to the rights of the payee against such  Loan Party; provided, however, that the Guarantor shall not enforce any right or receive any payment by  way of subrogation or otherwise take any action in respect of any other claim or cause of action the  Guarantor may have against such Loan Party arising by reason of any payment or performance by the  Guarantor pursuant to this Guaranty, unless and until all of the Guarantied Obligations have been paid  and performed in full.  If any amount shall be paid to the Guarantor on account of or in respect of such  subrogation rights or other claims or causes of action, the Guarantor shall hold such amount in trust for  the benefit of the Guarantied Parties and shall forthwith pay such amount to the Administrative Agent to  be credited and applied against the Guarantied Obligations, whether matured or unmatured, in accordance  with the terms of the Credit Agreement or to be held by the Administrative Agent as collateral security for  any Guarantied Obligations existing with respect to Letter of Credit Liabilities.      Section 11. Payments Free and Clear.  All sums payable by the Guarantor hereunder, whether of  principal, interest, fees, expenses, premiums or otherwise, shall be paid in full, without set-off or  counterclaim or any deduction or withholding whatsoever (including any Taxes, subject to Section 3.10.  of the Credit Agreement), and if the Guarantor is required by Applicable Law or by any Governmental  Authority to make any such deduction or withholding, subject to Section 3.10. of the Credit Agreement,   





 






  B-5  the Guarantor shall pay to the Administrative Agent and the Lenders such additional amount as will result  in the receipt by the Administrative Agent and the Lenders of the full amount payable hereunder had such  deduction or withholding not occurred or been required.    Section 12.  Set-off.  In addition to any rights now or hereafter granted under any of the other  Guarantied Documents or Applicable Law and not by way of limitation of any such rights, the Guarantor  hereby authorizes each Guarantied Party, each Affiliate of a Guarantied Party, and each Participant, at any  time while an Event of Default exists, subject to and pursuant to Section 12.3. of the Credit Agreement,  without any prior notice to such Guarantor or to any other Person, any such notice being hereby expressly  waived, but in the case of a Guarantied Party (other than the Administrative Agent), an Affiliate of a  Guarantied Party (other than the Administrative Agent), or a Participant, subject to receipt of the prior  written consent of the Requisite Lenders exercised in their sole discretion, to set-off and to appropriate  and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced  by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or  owing by a Guarantied Party, an Affiliate of a Guarantied Party or such Participant to or for the credit or  the account of the Guarantor against and on account of any of the Guarantied Obligations, although such  obligations shall be contingent or unmatured.  The Guarantor agrees, to the fullest extent permitted by  Applicable Law, that any Participant may exercise rights of setoff or counterclaim and other rights with  respect to its participation as fully as if such Participant were a direct creditor of the Guarantor in the  amount of such participation, to the extent permitted under the Credit Agreement.     Section 13.  Subordination.  The Guarantor hereby expressly covenants and agrees for the benefit  of the Guarantied Parties that all obligations and liabilities of any other Loan Party to the Guarantor of  whatever description, including without limitation, all intercompany receivables of the Guarantor from  any other Loan Party (collectively, the “Junior Claims”) shall be subordinate and junior in right of  payment to all Guarantied Obligations.  If an Event of Default shall exist, then the Guarantor shall not  accept any direct or indirect payment (in cash, property or securities, by setoff or otherwise) from any  other Loan Party on account of or in any manner in respect of any Junior Claim until all of the Guarantied  Obligations have been paid in full.     Section 14.  Avoidance Provisions.  It is the intent of the Guarantor and the Guarantied Parties  that in any Proceeding, the Guarantor’s maximum obligation hereunder shall equal, but not exceed, the  maximum amount which would not otherwise cause the obligations of the Guarantor hereunder (or any  other obligations of the Guarantor to the Guarantied Parties) to be avoidable or unenforceable against the  Guarantor in such Proceeding as a result of Applicable Law, including without limitation, (a) Section 548  of the Bankruptcy Code and (b) any state fraudulent transfer or fraudulent conveyance act or statute  applied in such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code or otherwise.  The  Applicable Laws under which the possible avoidance or unenforceability of the obligations of the  Guarantor hereunder (or any other obligations of the Guarantor to the Guarantied Parties) shall be  determined in any such Proceeding are referred to as the “Avoidance Provisions”.  Accordingly, to the  extent that the obligations of the Guarantor hereunder would otherwise be subject to avoidance under the  Avoidance Provisions, the maximum Guarantied Obligations for which the Guarantor shall be liable  hereunder shall be reduced to that amount which, as of the time any of the Guarantied Obligations are  deemed to have been incurred under the Avoidance Provisions, would not cause the obligations of the  Guarantor hereunder (or any other obligations of the Guarantor to the Guarantied Parties), to be subject to  avoidance under the Avoidance Provisions.  This Section is intended solely to preserve the rights of the  Administrative Agent and the other Guarantied Parties hereunder to the maximum extent that would not  cause the obligations of the Guarantor hereunder to be subject to avoidance under the Avoidance  Provisions, and the Guarantor or any other Person shall not have any right or claim under this Section as  against the Guarantied Parties that would not otherwise be available to such Person under the Avoidance  Provisions.  





 






  B-6     Section 15.  Information.  The Guarantor assumes all responsibility for being and keeping itself  informed of the financial condition of the Borrower and the other Loan Parties, and of all other  circumstances bearing upon the risk of nonpayment of any of the Guarantied Obligations and the nature,  scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that neither of  the Administrative Agent nor any other Guarantied Party shall have any duty whatsoever to advise the  Guarantor of information regarding such circumstances or risks.     Section 16.  Governing Law.  THIS GUARANTY SHALL BE GOVERNED BY, AND  CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW  YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH  STATE.     SECTION 17.  WAIVER OF JURY TRIAL.      (a) THE GUARANTOR, AND EACH OF THE ADMINISTRATIVE AGENT AND THE  OTHER GUARANTIED PARTIES BY ACCEPTING THE BENEFITS HEREOF, ACKNOWLEDGES  THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE GUARANTOR, THE  ADMINISTRATIVE AGENT OR ANY OF THE OTHER GUARANTIED PARTIES WOULD BE  BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN  DELAY AND EXPENSE TO THE PARTIES.  ACCORDINGLY, TO THE EXTENT PERMITTED BY  APPLICABLE LAW, THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE OTHER  GUARANTIED PARTIES BY ACCEPTING THE BENEFITS HEREOF, HEREBY WAIVES ITS  RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE  IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR  AGAINST ANY PARTY HERETO ARISING OUT OF THIS GUARANTY.     (b) THE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT  IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR  OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY OTHER GUARANTIED PARTY,  OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS  GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING  HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW  YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT OF  THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY  THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY  SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN  RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND  DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES  HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR  PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS  BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING  IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT  THAT THE ADMINISTRATIVE AGENT OR ANY OTHER GUARANTIED PARTY MAY  OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS  GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST THE GUARANTOR OR ITS  PROPERTIES IN THE COURTS OF ANY JURISDICTION.  EACH PARTY FURTHER WAIVES  ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH  ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING  





 






  B-7  WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR  CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE  DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY ANY GUARANTIED PARTY OR  THE ENFORCEMENT BY ANY GUARANTIED PARTY OF ANY JUDGMENT OBTAINED IN  SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.     (c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH  PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE  LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS  AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER GUARANTIED  DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE  TERMINATION OF THIS GUARANTY.     Section 18.  Loan Accounts.  The Administrative Agent and each other Guarantied Party may  maintain books and accounts setting forth the amounts of principal, interest and other sums paid and  payable with respect to the Guarantied Obligations arising under or in connection with the Guarantied  Documents, and in the case of any dispute relating to any of the outstanding amount, payment or receipt  of any of such Guarantied Obligations or otherwise, the entries in such books and accounts shall be  deemed conclusive evidence of amounts and other matters set forth herein, absent manifest error.  The  failure of the Administrative Agent or any other Guarantied Party to maintain such books and accounts  shall not in any way relieve or discharge the Guarantor of any of its obligations hereunder.     Section 19.  Waiver of Remedies.  No delay or failure on the part of the Administrative Agent or  any other Guarantied Party in the exercise of any right or remedy it may have against the Guarantor  hereunder or otherwise shall operate as a waiver thereof, and no single or partial exercise by the  Administrative Agent or any other Guarantied Party of any such right or remedy shall preclude any other  or further exercise thereof or the exercise of any other such right or remedy.     Section 20.  Termination.  Notwithstanding any provision contained herein to the contrary, except  as provided in Section 9, this Guaranty shall remain in full force and effect with respect to the Guarantor  until payment in full of the Guarantied Obligations and the termination of the Credit Agreement in  accordance with Section 12.10 thereof, in each case other than contingent indemnification obligations for  which no claim has been made, and the termination or cancellation of the Credit Agreement in accordance  with its terms.     Section 21.  Successors and Assigns.  Each reference herein to the Administrative Agent or any  other Guarantied Party shall be deemed to include such Person’s respective successors and assigns  (including, but not limited to, any holder of the Guarantied Obligations) in whose favor the provisions of  this Guaranty also shall inure, and each reference herein to the Guarantor shall be deemed to include the  Guarantor’s successors and assigns, upon whom this Guaranty also shall be binding.  The Guarantied  Parties may, in accordance with the applicable provisions of the Guarantied Documents, assign, transfer  or sell any Guarantied Obligation, or grant or sell participations in any Guarantied Obligations, to any  Person without the consent of, or notice to, the Guarantor and without releasing, discharging or modifying  the Guarantor’s obligations hereunder.  Subject to Section 12.8 of the Credit Agreement, each Guarantor  hereby consents to the delivery by the Administrative Agent and any other Guarantied Party to any  Assignee or Participant (or any prospective Assignee or Participant) of any financial or other information  regarding the Borrower or the Guarantor.  The Guarantor may not assign or transfer its obligations  hereunder to any Person without the prior written consent of all Lenders and any such assignment or other  transfer to which all of the Lenders have not so consented shall be null and void.    





 






  B-8   Section 22.  Amendments.  This Guaranty may not be amended except in writing signed by the  Administrative Agent and the Guarantor, subject to Section 12.6 of the Credit Agreement.     Section 23.  Payments.  All payments to be made by the Guarantor pursuant to this Guaranty shall  be made in Dollars, in immediately available funds to the Administrative Agent at its Principal Office, not  later than 1:00 p.m. Central time, on the date of demand therefor.     Section 24.  Notices.  All notices, requests and other communications hereunder shall be in  writing (including facsimile transmission or similar writing) and shall be given (a) to the Guarantor at its  address set forth below its signature hereto, (b) to the Administrative Agent or any other Guarantied Party  at its respective address for notices provided for in the Guarantied Documents, as applicable, or (c) as to  each such party at such other address as such party shall designate in a written notice to the other parties.   Each such notice, request or other communication shall be effective (i) if mailed, when received; or (ii) if  hand delivered or sent by overnight courier, when delivered; provided, however, that in the case of the  immediately preceding clauses (i) and (ii), non-receipt of any communication as the result of any change  of address of which the sending party was not notified or as the result of a refusal to accept delivery shall  be deemed receipt of such communication.     Section 25.  Severability.  In case any provision of this Guaranty shall be invalid, illegal or  unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions  shall not in any way be affected or impaired thereby.     Section 26.  Headings.  Section headings used in this Guaranty are for convenience only and shall  not affect the construction of this Guaranty.     Section 27.  Limitation of Liability.  None of the Administrative Agent, any other Guarantied  Party or any of their respective Related Parties, shall have any liability with respect to, and the Guarantor  hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect,  incidental, or consequential damages suffered or incurred by the Guarantor in connection with, arising out  of, or in any way related to, this Guaranty, any of the other Guarantied Documents, or any of the  transactions contemplated by this Guaranty or any of the other Guarantied Documents.  The Guarantor  hereby waives, releases, and agrees not to sue the Administrative Agent, any other Guarantied Party or  any of their respective Related Parties for punitive damages in respect of any claim in connection with,  arising out of, or in any way related to, this Guaranty, any of the other Guarantied Documents, or any of  the transactions contemplated by hereby or thereby.     Section 28. Electronic Delivery of Certain Information.  The Guarantor acknowledges and agrees  that information regarding the Guarantor may be delivered electronically pursuant to Section 8.5. of the  Credit Agreement.      Section 29.  Keepwell.  Each Qualified ECP Guarantor hereby jointly and severally absolutely,  unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from  time to time by each other Loan Party to honor all of its obligations under this Guaranty in respect of  Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this  Section for the maximum amount of such liability that can be hereby incurred without rendering its  obligations under this Section, or otherwise under this Guaranty, voidable under applicable law relating to  fraudulent conveyance or fraudulent transfer, and not for any greater amount).  The obligations of each  Qualified ECP Guarantor under this Section shall remain in full force and effect until termination of this  Guaranty in accordance with Section 20 hereof.  Each Qualified ECP Guarantor intends that this Section  constitute, and this Section shall be deemed to constitute, a “keepwell, support, or other agreement” for  





 






  B-9  the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity  Exchange Act.    Section 30.  Definitions.  (a) For the purposes of this Guaranty:     “Proceeding” means any of the following:  (i) a voluntary or involuntary case concerning the  Guarantor shall be commenced under the Bankruptcy Code; (ii) a custodian (as defined in such  Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or takes charge of, all or any  substantial part of the property of the Guarantor; (iii) any other proceeding under any Applicable Law,  domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up or composition for  adjustment of debts, whether now or hereafter in effect, is commenced relating to the Guarantor; (iv) the  Guarantor is adjudicated insolvent or bankrupt; (v) any order of relief or other order approving any such  case or proceeding is entered by a court of competent jurisdiction; (vi) the Guarantor makes a general  assignment for the benefit of creditors; (vii) the Guarantor shall fail to pay, or shall state that it is unable  to pay, or shall be unable to pay, its debts generally as they become due; (viii) the Guarantor shall call a  meeting of its creditors with a view to arranging a composition or adjustment of its debts; (ix) the  Guarantor shall by any act or failure to act indicate its consent to, approval of or acquiescence in any of  the foregoing; or (x) any corporate action shall be taken by the Guarantor for the purpose of effecting any  of the foregoing.     “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party  (including the 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.      (b) As used herein, “Guarantor” shall mean, as the context requires, collectively, (a) each  Subsidiary identified as a “Guarantor” on the signature pages hereto, (b) each Person that joins this  Guaranty as a Guarantor pursuant to the Credit Agreement, (c) with respect to (i) any Specified  Derivatives Obligations between any Loan Party (other than the Borrower) and any Specified Derivatives  Provider, the Borrower and (ii) the payment and performance by each other Loan Party of its obligations  under the Guaranty with respect to all Swap Obligations, the Borrower, and (d) the successors and  permitted assigns of the foregoing.     (c) Terms not otherwise defined herein are used herein with the respective meanings given  them in the Credit Agreement.    Section 31.  Novation.  PARTIES HERETO HAVE ENTERED INTO THIS GUARANTY TO  AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING UNDER, THE  EXISTING GUARANTY.  THE PARTIES DO NOT INTEND THIS GUARANTY OR THE  TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS GUARANTY AND THE  TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A  NOVATION OF ANY OF THE OBLIGATIONS OWING BY ANY GUARANTOR UNDER OR IN  CONNECTION WITH THE EXISTING GUARANTY.  THE AMENDMENT AND RESTATEMENT  OF THE EXISTING GUARANTY EFFECTED BY THIS GUARANTY SHALL BE EFFECTIVE ON  A PROSPECTIVE BASIS ONLY.        [Signatures on Following Page]  





 






  B-10    





 






  B-11   IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this Amended,  Restated and Consolidated Guaranty as of the date and year first written above.    GUARANTOR:    EQUITY LIFESTYLE PROPERTIES, INC.,   a Maryland corporation        By: ________________________________        Name: ___________________________        Title: ____________________________       Address for Notices to Guarantor:    c/o MHC Operating Limited Partnership  Two North Riverside Place  Suite 800  Chicago, Illinois  60606  Attention: David P. Eldersveld, General Counsel      Telephone: (312) 279-1442                           





 






  B-12  BORROWER:    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________  





 






  C-1  EXHIBIT C    FORM OF NOTICE OF REVOLVING BORROWING    ____________, 20__    Wells Fargo Bank, National Association, as  Administrative Agent  600 South 4th St., Floor 08  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone:  612-667-4773  Email: david.r.deangelis@wellsfargo.com    Ladies and Gentlemen:    Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), the financial  institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wells Fargo  Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties  thereto.  Capitalized terms used herein, and not otherwise defined herein, have their respective meanings  given them in the Credit Agreement.    1. Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower hereby requests that  the Revolving Lenders make Revolving Loans to the Borrower in an aggregate principal  amount equal to $___________________.    2. The Borrower requests that such Revolving Loans be made available to the Borrower on  ____________, 20__.    3. The Borrower hereby requests that such Revolving Loans be of the following Type:    [Check one box only]    Same-Day Borrowing Base Rate Loans   Base Rate Loans (non-Same-Day Borrowing)   Same-Day LIBOR Loans (bearing interest at the LIBOR Market Index Rate)   LIBOR Loans, with an initial Interest Period for a duration of:  [Check one box only]   one month   three months   six months    4. The proceeds of such Revolving Loans will be used for  ___________________________________________.    The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date  hereof and as of the date of the making of the requested Revolving Loans, and immediately after giving  effect thereto, (a) no Default or Event of Default exists or shall exist, and none of the limits specified in  Section 2.15. of the Credit Agreement shall be violated; and (b) the representations and warranties made  or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them  





 






  C-2  is a party are and shall be true and correct in all material respects (except in the case of a representation or  warranty qualified by materiality, in which case such representation or warranty is and shall be true and  correct in all respects) with the same force and effect as if made on and as of such date except to the  extent that such representations and warranties expressly relate solely to an earlier date (in which case  such representations and warranties shall have been true and correct in all material respects (except in the  case of a representation or warranty qualified by materiality, in which case such representation or  warranty was true and correct in all respects) on and as of such earlier date) and except for changes in  factual circumstances not prohibited under the Loan Documents.  In addition, the Borrower certifies to the  Administrative Agent and the Lenders that all conditions to the making of the requested Revolving Loans  contained in Article V. of the Credit Agreement will have been satisfied (or waived in accordance with  the applicable provisions of the Loan Documents) at the time such Revolving Loans are made.    [Signatures on Following Page]  





 






  C-3   IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of  Borrowing as of the date first written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________     





 






  D-1  EXHIBIT D    FORM OF NOTICE OF CONTINUATION    ____________, 20__    Wells Fargo Bank, National Association, as  Administrative Agent  600 South 4th St., Floor 08  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone:  612-667-4773  Email: david.r.deangelis@wellsfargo.com    Ladies and Gentlemen:    Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), the financial  institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wells Fargo  Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties  thereto.  Capitalized terms used herein, and not otherwise defined herein, have their respective meanings  given them in the Credit Agreement.    Pursuant to Section 2.9. of the Credit Agreement, the Borrower hereby requests a Continuation of  LIBOR Loans under the Credit Agreement, and in connection with such a request, sets forth below the  information relating to such Continuation as required by such Section of the Credit Agreement:    1. The proposed date of such Continuation is ____________, 20__.    2. The Class of Loans subject to such Continuation is:        Revolving Loans    Term Loans     3. The aggregate principal amount of the Loans subject to the requested Continuation is  $________________________ and the portion of such principal amount subject to such  Continuation is $__________________________.    4. The current Interest Period for each of the Loans subject to such Continuation ends on  ________________, 20__.    5. The duration of the new Interest Period for each of such Loans or portion thereof subject  to such Continuation is:     [Check one box only]      one month    three months    six months    





 






  D-2  6. The portion of the principal amount of such Loans subject to a Specified Derivatives  Contract is $______________________________.    7. The Specified Derivatives Contract(s) to which such Loans is/are subject:    _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________       The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date  hereof, as of the proposed date of the requested Continuation, and after immediately giving effect thereto,  no Event of Default exists or will exist.    If notice of the requested Continuation was given previously by telephone, this notice is to be  considered the written confirmation of such telephone notice required by Section 2.9. of the Credit  Agreement.      [Signatures on Following Page]  





 






  D-3   IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of  Continuation as of the date first written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________     





 






  E-1  EXHIBIT E    FORM OF NOTICE OF CONVERSION    ____________, 20__    Wells Fargo Bank, National Association, as  Administrative Agent  600 South 4th St., Floor 08  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone:  612-667-4773  Email: david.r.deangelis@wellsfargo.com    Ladies and Gentlemen:    Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), the financial  institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wells Fargo  Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties  thereto.  Capitalized terms used herein, and not otherwise defined herein, have their respective meanings  given them in the Credit Agreement.    Pursuant to Section 2.10. of the Credit Agreement, the Borrower hereby requests a Conversion of  a borrowing of Loans of one Type into Loans of another Type under the Credit Agreement, and in  connection with such a request, sets forth below the information relating to such Conversion as required  by such Section of the Credit Agreement:    1. The proposed date of such Conversion is ______________, 20__.    2. The Class of Loans to be converted is:        Revolving Loans    Term Loans    3. The Type of Loans to be Converted pursuant hereto is currently:    [Check one box only]     Base Rate Loan   LIBOR Loan    4. The aggregate principal amount of the Loans subject to the requested Conversion is  $_____________________ and the portion of such principal amount subject to such  Conversion is $___________________.    





 






  E-2  5. The amount of such Loans to be so Converted is to be converted into Loans of the  following Type:     [Check one box only]      Base Rate Loan   LIBOR Loan, with an initial Interest Period for a duration of:    [Check one box only]      one month     three months    six months    6.  The amount of such Loans to be so Converted into a LIBOR Loan subject to a Specified  Derivatives Contract is $_____________________________________.    7. The Specified Derivatives Contract(s) to which such Loans to be so Converted into a  LIBOR Loan is/are subject:   ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ____________________________________________________________________    The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date  hereof and, as of the proposed date of the requested Conversion, and immediately after giving effect  thereto, no Default or Event of Default exists or will exist.     If notice of the requested Conversion was given previously by telephone, this notice is to be  considered the written confirmation of such telephone notice required by Section 2.10. of the Credit  Agreement.       [Signatures on Following Page]    





 






  E-3  IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of  Conversion as of the date first written above.      MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________     





 






  F-1  EXHIBIT F    [RESERVED]      





 






  G-1  EXHIBIT G    FORM OF THIRD AMENDED AND RESTATED REVOLVING NOTE    $______________ _________, 20__    FOR VALUE RECEIVED, the undersigned, MHC OPERATING LIMITED PARTNERSHIP, a  limited partnership formed under the laws of the State of Illinois (the “Borrower”) hereby unconditionally  promises to pay to  ___________________________ or registered assigns (the “Lender”), in care of  Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), to its  address as Wells Fargo Bank, National Association, 600 South 4th St., Floor 08, Minneapolis, Minnesota  55415, or at such other address as may be specified in writing by the Administrative Agent to the  Borrower, the principal sum of ___________________ AND ___/100 DOLLARS ($_____________)(or  such lesser amount as shall equal the aggregate unpaid principal amount of Revolving Loans made by the  Lender to the Borrower under the Credit Agreement (defined below)), on the dates and in the principal  amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount owing  hereunder, at the rates and on the dates provided in the Credit Agreement.    This Note is one of the “Revolving Notes” referred to in the Third Amended and Restated Credit  Agreement dated as of April 19, 2021 (as amended, restated, supplemented or otherwise modified from  time to time, the “Credit Agreement”), by and among the Borrower, Equity LifeStyle Properties, Inc. (the  “Parent”), the financial institutions party thereto and their assignees under Section 12.5. thereof, the  Administrative Agent, and the other parties thereto, and is subject to, and entitled to, all provisions and  benefits thereof.  Capitalized terms used herein and not defined herein shall have the respective meanings  given to such terms in the Credit Agreement.      The Credit Agreement, among other things, (a) provides for the making of Loans evidenced by  this Note by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any  time the outstanding Dollar amount first above mentioned, (b) permits the prepayment of the Loans  evidenced by this Note by the Borrower subject to certain terms and conditions and (c) provides for the  acceleration of the maturity of the Loans evidenced by this Note upon the occurrence of certain specified  events.    Except as permitted by Section 12.5. of the Credit Agreement, this Note may not be assigned by  the Lender to any other Person.    [This Note is being issued in replacement of that certain Amended and Restated Revolving Note  dated as of October 27, 2017, executed and delivered by Borrower party thereto and payable to the order  of the Lender, as amended and in effect immediately prior to the date hereof.  THIS NOTE IS NOT  INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE  OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER REVOLVING  NOTE.]    THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,  THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND  TO BE FULLY PERFORMED, IN SUCH STATE.    The Borrower hereby waives presentment, demand, protest and notice of any kind.  No failure to  exercise, and no delay in exercising any rights hereunder on the part of the holder hereof shall operate as a  waiver of such rights.    





 






  G-2  Time is of the essence for this Note.      [Signatures on Following Page]  





 






  G-3  IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note  under seal as of the date written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________         





 






  H-1  EXHIBIT H    [RESERVED]      





 






  I-1  EXHIBIT I    FORM OF DISBURSEMENT INSTRUCTION AGREEMENT      Borrower:  MHC Operating Limited Partnership      Administrative Agent:  Wells Fargo Bank, National Association       Loan:  Loan number 6023ZMC made pursuant to that certain “Third Amended and Restated Credit Agreement”  dated as of April 19, 2021 between Borrower, Equity LifeStyle Properties, Inc., each of the financial institutions  initially a signatory thereto together with their assignees under Section 12.5. thereof (the “Lenders”), Wells Fargo  Bank, National Association, as the Administrative Agent for the Lenders (the “Administrative Agent”) and the other  parties thereto, as amended from time to time (the “Credit Agreement”)      Effective Date:  April [__], 2021      Check applicable box:     New – This is the first Disbursement Instruction Agreement submitted in connection with the Loan.   Replace Previous Agreement – This is a replacement Disbursement Instruction Agreement.  All prior  instructions submitted in connection with this Loan are cancelled as of the Effective Date set forth above.      This Agreement must be signed by the Borrower and is used for the following purposes:    (1) to designate an individual or individuals with authority to request disbursements of Loan proceeds, whether  at the time of Loan closing/origination or thereafter;  (2) to designate an individual or individuals with authority to request disbursements of funds from Restricted  Accounts (as defined in the Terms and Conditions attached to this Agreement), if applicable; and  (3) to provide Administrative Agent with specific instructions for wiring or transferring funds on Borrower’s  behalf.    Any of the disbursements, wires or transfers described above are referred to herein as a “Disbursement.”    Specific dollar amounts for Disbursements must be provided to Administrative Agent at the time of the applicable  Disbursement in the form of a signed closing statement, an email instruction or other written communication, or  telephonic request pursuant to Section 2.4(b) of the Credit Agreement (each, a “Disbursement Request”) from an  applicable Authorized Representative (as defined in the Terms and Conditions attached to this Agreement).    A new Disbursement Instruction Agreement must be completed and signed by the Borrower if (i) all or any portion  of a Disbursement is to be transferred to an account or an entity not described in this Agreement or (ii) Borrower  wishes to add or remove any Authorized Representatives.     See the Additional Terms and Conditions attached hereto for additional information and for definitions of  certain capitalized terms used in this Agreement.  





 






  I-2    Disbursement of Loan Proceeds at Origination/Closing      Closing Disbursement Authorizers:  Administrative Agent is authorized to accept one or more Disbursement  Requests from any of the individuals named below (each, a “Closing Disbursement Authorizer”) to disburse Loan  proceeds on or about the date of the Loan origination/closing and to initiate Disbursements in connection therewith  (each, a “Closing Disbursement”):     Individual’s Name Title  1.    2.    3.      Describe Restrictions, if any, on the authority of the Closing Disbursement Authorizers (dollar amount limits,  wire/deposit destinations, etc.):  DESCRIBE APPLICABLE RESTRICTIONS OR INDICATE “N/A”  If there are no restrictions described here, any Closing Disbursement Authorizer may submit a Disbursement  Request for all available Loan proceeds.    DELETE FOLLOWING SECTION IF NO WIRE TRANSFERS AT ORIGINATION/CLOSING    Permitted Wire Transfers:  Disbursement Requests for the Closing Disbursement(s) to be made by wire transfer  must specify the amount and applicable Receiving Party.  Each Receiving Party included in any such Disbursement  Request must be listed below.  Administrative Agent is authorized to use the wire instructions that have been  provided directly to Administrative Agent by the Receiving Party or Borrower and attached as the Closing Exhibit.   All wire instructions must be in the format specified on the Closing Exhibit.     Names of Receiving Parties for the Closing Disbursement(s) (may include as many parties as needed; wire  instructions for each Receiving Party must be attached as the Closing Exhibit)  1.   2.   3.     DELETE FOLLOWING SECTION IF NO DEPOSITS INTO WFB ACCOUNTS AT ORIGINATION/CLOSING    Direct Deposit:  Disbursement Requests for the Closing Disbursement(s) to be deposited into an account at Wells  Fargo Bank, N.A. must specify the amount and applicable account.  Each account included in any such  Disbursement Request must be listed below.      Name on Deposit Account:   Wells Fargo Bank, N.A. Deposit Account Number:   Further Credit Information/Instructions:       





 






  I-3    Disbursements of Loan Proceeds Subsequent to Loan Closing/Origination      Subsequent Disbursement Authorizers:  Administrative Agent is authorized to accept one or more Disbursement  Requests from any of the individuals named below (each, a “Subsequent Disbursement Authorizer”) to disburse  Loan proceeds after the date of the Loan origination/closing and to initiate Disbursements in connection therewith  (each, a “Subsequent Disbursement”):     Individual’s Name Title  1.    2.    3.      Describe Restrictions, if any, on the authority of the Subsequent Disbursement Authorizers (dollar amount limits,  wire/deposit destinations, etc.):    DESCRIBE APPLICABLE RESTRICTIONS OR INDICATE “N/A”  If there are no restrictions described here, any Subsequent Disbursement Authorizer may submit a  Disbursement Request for all available Loan proceeds.    DELETE FOLLOWING SECTION IF NO SUBSEQUENT WIRE TRANSFERS ANTICIPATED    Permitted Wire Transfers:  Disbursement Requests for Subsequent Disbursements to be made by wire transfer must  specify the amount and applicable Receiving Party.  Each Receiving Party included in any such Disbursement  Request must be listed below.  Administrative Agent is authorized to use the wire instructions that have been  provided directly to Administrative Agent by the Receiving Party or Borrower and attached as the Subsequent  Disbursement Exhibit. All wire instructions must be in the format specified on the Subsequent Disbursement  Exhibit.     Names of Receiving Parties for Subsequent Disbursements (may include as many parties as needed; wire  instructions for each Receiving Party must be attached as the Subsequent Disbursement Exhibit)  1.   2.   3.     DELETE FOLLOWING SECTION IF NO SUBSEQUENT DEPOSITS INTO WFB ACCOUNTS ANTICIPATED    Direct Deposit:  Disbursement Requests for Subsequent Disbursements to be deposited into an account at Wells  Fargo Bank, N.A. must specify the amount and applicable account.  Each account included in any such  Disbursement Request must be listed below.      Name on Deposit Account:   Wells Fargo Bank, N.A. Deposit Account Number:   Further Credit Information/Instructions:   





 






  I-4  Restricted Account Disbursements       Restricted Account Disbursement Authorizers:  Administrative Agent is authorized to accept one or more  Disbursement Requests from any of the individuals named below (each, a “Restricted Account Disbursement  Authorizer”) to disburse funds from a Restricted Account and to initiate Disbursements in connection therewith  (each, a “Restricted Account Disbursement”):     Individual’s Name Title  1.    2.    3.      Describe Restrictions, if any, on the authority of the Restricted Account Disbursement Authorizers (dollar amount  limits, wire/deposit destinations, etc.):  [DESCRIBE APPLICABLE RESTRICTIONS OR INDICATE “N/A”]  If there are no restrictions described here, any Restricted Account Disbursement Authorizer may submit a  Disbursement Request for all available funds.    [DELETE FOLLOWING SECTION IF NO WIRE TRANSFERS FROM RESRTICTED ACCOUNT  ANTICIPATED]    Permitted Wire Transfers:  Disbursement Requests for Restricted Account Disbursements to be made by wire  transfer must specify the amount and applicable Receiving Party.  Each Receiving Party included in any such  Disbursement Request must be listed below.  Administrative Agent is authorized to use the wire instructions that  have been provided directly to Administrative Agent by the Receiving Party or Borrower and attached as the  Restricted Account Disbursement Exhibit. All wire instructions must be in the format specified on the  Restricted Account Disbursement Exhibit.       Names of Receiving Parties for Restricted Account Disbursements (may include as many parties as needed;  wire instructions for each Receiving Party must be attached as the Restricted Account Disbursement Exhibit)  1.   2.   3.     [DELETE FOLLOWING SECTION IF NO DEPOSITS INTO WFB ACCOUNTS FROM RESTRICTED  ACCOUNTS ANTICIPATED]    Direct Deposit:  Disbursement Requests for Restricted Account Disbursements to be deposited into an account at  Wells Fargo Bank, N.A. must specify the amount and applicable account.  Each account included in any such  Disbursement Request must be listed below.      Name on Deposit Account:   Wells Fargo Bank, N.A. Deposit Account Number:   Further Credit Information/Instructions:   





 






  I-5  Borrower acknowledges that all of the information in this Agreement is correct and agrees to the terms and  conditions set forth herein and in the Additional Terms and Conditions on the following page.      MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________     





 






  I-6  Additional Terms and Conditions to the Disbursement Instruction Agreement    Definitions.  The following capitalized terms shall have the meanings set forth below:    “Authorized Representative” means any or all of the Closing Disbursement Authorizers, Subsequent Disbursement Authorizers and  Restricted Account Disbursement Authorizers, as applicable.  “Receiving Bank” means the financial institution where a Receiving Party maintains its account.  “Receiving Party” means the ultimate recipient of funds pursuant to a Disbursement Request.  “Restricted Account” means an account at Wells Fargo Bank, N.A. associated with the Loan to which Borrower’s access is  restricted.    Capitalized terms used in these Additional Terms and Conditions to Disbursement Instruction Agreement and not otherwise defined herein shall  have the meanings given to such terms in the body of the Agreement.    Disbursement Requests. Except as expressly provided in the Credit Agreement, Administrative Agent must receive Disbursement Requests in  writing.    Disbursement Requests will only be accepted from the applicable Authorized Representatives designated in the Disbursement  Instruction Agreement. Disbursement Requests will be processed subject to satisfactory completion of Administrative Agent’s customer  verification procedures. Administrative Agent is only responsible for making a good faith effort to execute each Disbursement Request and may  use agents of its choice to execute Disbursement Requests.  Funds disbursed pursuant to a Disbursement Request may be transmitted directly to  the Receiving Bank, or indirectly to the Receiving Bank through another bank, government agency, or other third party that Administrative Agent  considers to be reasonable.  Administrative Agent will, in its sole discretion, determine the funds transfer system and the means by which each  Disbursement will be made.  Administrative Agent may delay or refuse to accept a Disbursement Request if the Disbursement would: (i) violate  the terms of this Agreement; (ii) require use of a bank unacceptable to Administrative Agent or Lenders or prohibited by government authority;  (iii) cause Administrative Agent or Lenders to violate any Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise  cause Administrative Agent or Lenders to violate any applicable law or regulation.    Limitation of Liability. Administrative Agent, any Issuing Bank and Lenders shall not be liable to Borrower or any other parties for: (i) errors,  acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower’s requested  Disbursements may be made or information received or transmitted, and no such entity shall be deemed an agent of the Administrative Agent,  any Issuing Bank or any Lender; (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures,  acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Administrative Agent’s, any  Issuing Banks’s or any Lender’s control; or (iii) any special, consequential, indirect or punitive damages, whether or not (A) any claim for these  damages is based on tort or contract or (B) Administrative Agent, any Issuing Bank, any Lender or Borrower knew or should have known the  likelihood of these damages in any situation.  Neither Administrative Agent, any Issuing Bank, nor any Lender makes any representations or  warranties other than those expressly made in this Agreement.  IN NO EVENT WILL ADMINISTRATIVE AGENT, ANY ISSUING BANK OR  ANY LENDER BE LIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY IF A DISBURSEMENT REQUEST IS EXECUTED  BY ADMINISTRATIVE AGENT IN GOOD FAITH AN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.    Reliance on Information Provided. Administrative Agent is authorized to rely on the information provided by Borrower or any Authorized  Representative in or in accordance with this Agreement when executing a Disbursement Request until Administrative Agent has received a new  Agreement signed by Borrower.  Borrower agrees to be bound by any Disbursement Request: (i) authorized or transmitted by Borrower; or (ii)  made in Borrower’s name and accepted by Administrative Agent in good faith and in compliance with this Agreement, even if not properly  authorized by Borrower.  Administrative Agent may rely solely (i) on the account number of the Receiving Party, rather than the Receiving  Party’s name, and (ii) on the bank routing number of the Receiving Bank, rather than the Receiving Bank’s name, in executing a Disbursement  Request.  Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by Borrower  or an Authorized Representative.  If Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of  transfers or requests or takes any actions in an attempt to detect unauthorized Disbursement Requests, Borrower agrees that, no matter how many  times Administrative Agent takes these actions, Administrative Agent will not in any situation be liable for failing to take or correctly perform  these actions in the future, and such actions shall not become any part of the Disbursement procedures authorized herein, in the Loan Documents,  or in any agreement between Administrative Agent and Borrower.    International Disbursements. A Disbursement Request expressed in US Dollars will be sent in US Dollars, even if the Receiving Party or  Receiving Bank is located outside the United States. Administrative Agent will not execute Disbursement Requests expressed in foreign currency  unless permitted by the Credit Agreement.    Errors. Borrower agrees to notify Administrative Agent of any errors in the Disbursement of any funds or of any unauthorized or improperly  authorized Disbursement Requests within fourteen (14) days after Administrative Agent’s confirmation to Borrower of such Disbursement.     Finality of Disbursement Requests. Disbursement Requests will be final and will not be subject to stop payment or recall; provided that  Administrative Agent may, at Borrower’s request, make an effort to effect a stop payment or recall but will incur no liability whatsoever for its  failure or inability to do so. 





 






  I-7  CLOSING EXHIBIT  WIRE INSTRUCTIONS    ADMINISTRATIVE AGENT TO ATTACH WIRE INSTRUCTIONS FROM RECEIVING PARTIES    All wire instructions must contain the following information:      Transfer/Deposit Funds to (Receiving Party Account Name)    Receiving Party Deposit Account Number    Receiving Bank Name, City and State      Receiving Bank Routing (ABA) Number  Further identifying information, if applicable (title escrow number, borrower name, loan number, etc.)      





 






  I-8  SUBSEQUENT DISBURSEMENT EXHIBIT  WIRE INSTRUCTIONS    ADMINISTRATIVE AGENT TO ATTACH WIRE INSTRUCTIONS FROM RECEIVING PARTIES    All wire instructions must contain the following information:      Transfer/Deposit Funds to (Receiving Party Account Name)    Receiving Party Deposit Account Number    Receiving Bank Name, City and State      Receiving Bank Routing (ABA) Number  Further identifying information, if applicable (title escrow number, borrower name, loan number, etc.)      





 






  I-9  RESTRICTED ACCOUNT DISBURSEMENT EXHIBIT  WIRE INSTRUCTIONS    ADMINISTRATIVE AGENT TO ATTACH WIRE INSTRUCTIONS FROM RECEIVING PARTIES    All wire instructions must contain the following information:      Transfer/Deposit Funds to (Receiving Party Account Name)    Receiving Party Deposit Account Number    Receiving Bank Name, City and State      Receiving Bank Routing (ABA) Number  Further identifying information, if applicable (title escrow number, borrower name, loan number, etc.)          





 






  J-1    EXHIBIT J    FORM OF OPINION OF COUNSELTO THE BORROWER AND GUARANTORS    [Attached]        





 






  K-1    EXHIBIT K    FORM OF COMPLIANCE CERTIFICATE    _____________________, 20__    Wells Fargo Bank, National Association  10 South Wacker Drive, 32nd Floor  Chicago, Illinois 60606  Attention:  Scott Solis  Telecopy: (312) 782-0969  Telephone: (312) 269-4818    Each of the Lenders Party to the Credit Agreement referred to below    Ladies and Gentlemen:     Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), Equity  LifeStyle Properties, Inc. (the “Parent”), the financial institutions party thereto and their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as  Administrative Agent (the “Administrative Agent”), and the other parties thereto.  Capitalized terms  used herein, and not otherwise defined herein, have their respective meanings given to them in the  Credit Agreement.     Pursuant to Section 8.3. of the Credit Agreement, the undersigned hereby certifies, in such  person’s corporate and not individual capacity, to the Administrative Agent, any Issuing Bank and the  Lenders that:     1. The undersigned is the [Chief Executive Officer][Chief Financial Officer][Vice  President-Treasurer] of the Parent.    2. The undersigned has examined the books and records of the Parent and the Borrower  and has conducted such other examinations and investigations as are reasonably necessary to provide  this Compliance Certificate.     3. As of the date of this Compliance Certificate, to the best of my knowledge,  information and belief after due inquiry, no Default or Event of Default exists and the Parent, the  Borrower and their respective Subsidiaries are in compliance with all applicable covenants under the  Credit Agreement. [if such is not the case, specify such Default, Event of Default or covenant non- compliance and its nature, when it occurred and whether it is continuing and the steps being taken by  the Borrower with respect to such event, condition or failure].    4. Attached hereto as Schedule 1 are reasonably detailed calculations establishing  whether or not the Parent, the Borrower and their respective Subsidiaries were in compliance with the  covenants contained in Sections 9.1. of the Credit Agreement.      





 






  K-2   5. Attached hereto as Schedule 2 is a report setting forth a statement of Funds From  Operations as of the last day of the [fiscal [quarter/year]].    6. Attached hereto as Schedule 3 is a report of newly acquired Properties of the Parent,  the Borrower and each of the other Subsidiaries, including their Net Operating Income of such  Property for the trailing four (4) fiscal quarters ending ________, the cost of acquisition of such  Property and the amount, if any, of Indebtedness secured by a Lien on such Property    7. As of the date hereof the aggregate outstanding principal amount of all outstanding  Revolving Loans is less than or equal to the aggregate amount of Revolving Commitments at such  time.      8. The representations and warranties of the Borrower and the other Loan Parties  contained in the Credit Agreement and the other Loan Documents to which any is a party, are true and  correct in all material respects on and as of the date hereof (except in the case of a representation or  warranty qualified by materiality, in which case such representation or warranty is and shall be true  and correct in all respects), except to the extent that representations and warranties expressly relate  solely to an earlier date (in which case such representations and warranties shall have been true and  correct in all material respects (except in the case of a representation or warranty qualified by  materiality, in which case such representation or warranty was true and correct in all respects) on and  as of such earlier date) and except for changes in factual circumstances not prohibited under the Credit  Agreement or the other Loan Documents.     IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate on and  as of the date first written above.      _________________________________________  [INSERT NAME], as [Chief Financial Officer][Chief  Executive Officer][Vice President-Treasurer] of Equity  LifeStyle Properties, Inc.    





 






  L-1  EXHIBIT L    FORM OF TERM NOTE    $______________ _________, 20__    FOR VALUE RECEIVED, the undersigned, MHC OPERATING LIMITED PARTNERSHIP, a  limited partnership formed under the laws of the State of Illinois (the “Borrower”) hereby unconditionally  promises to pay to ___________________________ or registered assigns (the “Lender”), in care of Wells  Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), to its address  at Wells Fargo Bank, National Association, 600 South 4th St., Floor 08, Minneapolis, Minnesota 55415,  or at such other address as may be specified in writing by the Administrative Agent to the Borrower, the  principal sum of ___________________ AND ___/100 DOLLARS ($_____________)(or such lesser  amount as shall equal the aggregate unpaid principal amount of the Term Loan made by the Lender to the  Borrower under the Credit Agreement (defined below)), on the dates and in the principal amounts  provided in the Credit Agreement, and to pay interest on the unpaid principal amount owing hereunder, at  the rates and on the dates provided in the Credit Agreement.    This Note is one of the “Term Notes” referred to in the Third Amended and Restated Credit  Agreement dated as of April 19, 2021 (as amended, restated, supplemented or otherwise modified from  time to time, the “Credit Agreement”), by and among the Borrower, Equity LifeStyle Properties, Inc. (the  “Parent”), the financial institutions party thereto and their assignees under Section 12.5. thereof, the  Administrative Agent, and the other parties thereto, and is subject to, and entitled to, all provisions and  benefits thereof.  Capitalized terms used herein and not defined herein shall have the respective meanings  given to such terms in the Credit Agreement.      The Credit Agreement, among other things, (a) permits the prepayment of the Loans evidenced  by this Note by the Borrower subject to certain terms and conditions and (b) provides for the acceleration  of the maturity of the Loans evidenced by this Term Note upon the occurrence of certain specified events.    Except as permitted by Section 12.5. of the Credit Agreement, this Note may not be assigned by  the Lender to any other Person.    THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,  THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND  TO BE FULLY PERFORMED, IN SUCH STATE.    The Borrower hereby waives presentment, demand, protest and notice of any kind.  No failure to  exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as  a waiver of such rights.    Time is of the essence for this Note.      [Signatures on Following Page]  





 






  L-2  IN WITNESS WHEREOF, the undersigned has executed and delivered this Term Note under seal  as of the date written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________       





 






  M-1  EXHIBIT M    FORM OF NOTICE OF TERM BORROWING    ____________, 20__    Wells Fargo Bank, National Association, as  Administrative Agent  600 South 4th St., Floor 08  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone:  612-667-4773  Email: david.r.deangelis@wellsfargo.com    Ladies and Gentlemen:    Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), the financial  institutions party thereto and their assignees under Section 12.5. thereof (the “Lenders”), Wells Fargo  Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties  thereto.  Capitalized terms used herein, and not otherwise defined herein, have their respective meanings  given them in the Credit Agreement.    1. Pursuant to [Section 2.16][Section 2.2] of the Credit Agreement, the Borrower hereby  requests that the Term Loan Lenders make [Additional] Term Loans to the Borrower in  an aggregate amount equal to $___________________.    2. The Borrower requests that such [Additional] Term Loans be made available to the  Borrower on ____________, 20__.    3. The proceeds of such [Additional] Term Loans will be used for  ___________________________________________.    4. The Borrower hereby requests that such [Additional] Term Loans be of the following  Type:    [Check one box only]    Base Rate Loans   LIBOR Loans, with an initial Interest Period for a duration of:    [Check one box only]   one month   three months   six months    The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date  hereof and, as of the date of the making of the requested [Additional] Term Loans, and immediately after  giving effect thereto, (a) no Default or Event of Default exists or shall exist; and (b) the representations  and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents  to which any of them is a party are and shall be true and correct in all material respects (except in the case  





 






  M-2  of a representation or warranty qualified by materiality, in which case such representation or warranty is  and shall be true and correct in all respects) with the same force and effect as if made on and as of such  date except to the extent that such representations and warranties expressly relate solely to an earlier date  (in which case such representations and warranties shall have been true and correct in all material respects  (except in the case of a representation or warranty qualified by materiality, in which case such  representation or warranty was true and correct in all respects) on and as of such earlier date) and except  for changes in factual circumstances not prohibited under the Loan Documents.  In addition, the Borrower  certifies to the Administrative Agent and the Lenders that all conditions to the making of the requested  [Additional] Term Loans contained in Article V. of the Credit Agreement will have been satisfied (or  waived in accordance with the applicable provisions of the Loan Documents) at the time such  [Additional] Term Loans are made.    [Signatures on Following Page]  





 






  M-3   IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of  Borrowing as of the date first written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________   





 






  N-1-1  EXHIBIT N-1    FORM OF U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)      Reference is hereby made to the Third Amended and Restated Credit Agreement dated as of April  19, 2021 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),  by and among MHC Operating Limited Partnership (the “Borrower”), Equity LifeStyle Properties, Inc.  (the “Parent”), each of the financial institutions initially a signatory thereto together with their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as the  Administrative Agent (the “Administrative Agent”), and the other parties thereto.      Pursuant to the provisions of Section 3.10. of the Credit Agreement, the undersigned hereby  certifies that (i) 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, (ii) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower  within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation  related to the Borrower as described in Section 881(c)(3)(C) of the Code.    The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its  non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E.  By executing this certificate, the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all  times furnished the 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 calendar years preceding such payments.     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement.        [NAME OF LENDER]      By: _________________________        Name: ____________________        Title: _____________________     Date: ________ __, 20__    





 






  N-2-1  EXHIBIT N-2  FORM OF U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)      Reference is hereby made to the Third Amended and Restated Credit Agreement dated as of April  19, 2021 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),  by and among MHC Operating Limited Partnership (the “Borrower”), Equity LifeStyle Properties, Inc.  (the “Parent”), each of the financial institutions initially a signatory thereto together with their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as the  Administrative Agent (the “Administrative Agent”), and the other parties thereto.        Pursuant to the provisions of Section 3.10. of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is  providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the  Code, and (iv) it is not a controlled foreign corporation related to the 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 or W-8BEN-E.  By executing this certificate, the undersigned agrees that  (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such  Lender in writing, and (2) 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 calendar years preceding such payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement.    [NAME OF PARTICIPANT]      By: _________________________        Name: ____________________        Title: _____________________     Date: ________ __, 20__    





 






  N-3-1  EXHIBIT N-3  FORM OF U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)      Reference is hereby made to the Third Amended and Restated Credit Agreement dated as of April  19, 2021 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),  by and among MHC Operating Limited Partnership (the “Borrower”), Equity LifeStyle Properties, Inc.  (the “Parent”), each of the financial institutions initially a signatory thereto together with their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as the  Administrative Agent (the “Administrative Agent”), and the other parties thereto.        Pursuant to the provisions of Section 3.10. of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the participation in respect of which it is providing this  certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,  (iii) with respect to such participation, 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, (iv) none of its  direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of  Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled  foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.     The undersigned has furnished its participating Lender 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: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an  IRS Form W-8BEN or W-8BEN-E 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 (1) if  the information provided on this certificate changes, the undersigned shall promptly so inform such  Lender and (2) 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 calendar years preceding such payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement.    [NAME OF PARTICIPANT]      By: _________________________        Name: ____________________        Title: _____________________     Date: ________ __, 20__      





 






  N-4-1  EXHIBIT N-4  FORM OF U.S. TAX COMPLIANCE CERTIFICATE    (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)      Reference is hereby made to the Third Amended and Restated Credit Agreement dated as of April  19, 2021 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),  by and among MHC Operating Limited Partnership (the “Borrower”), Equity LifeStyle Properties, Inc.  (the “Parent”), each of the financial institutions initially a signatory thereto together with their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as the  Administrative Agent (the “Administrative Agent”), and the other parties thereto.        Pursuant to the provisions of Section 3.10. of the Credit Agreement, the undersigned hereby  certifies that (i) 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, (ii) 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)), (iii) 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, (iv) none of its direct or indirect partners/members is a ten percent  shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its  direct or indirect partners/members is a controlled foreign corporation related to the Borrower as  described in Section 881(c)(3)(C) of the Code.    The undersigned has furnished the Administrative Agent and the 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: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY  accompanied by an IRS Form W-8BEN or W-8BEN-E 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 (1) if the information provided on this certificate changes, the undersigned shall promptly so  inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times  furnished the 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 calendar years preceding such payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement.    [NAME OF LENDER]      By: _________________________        Name: ____________________        Title: _____________________     Date: ________ __, 20__      





 






  O-1  EXHIBIT O  FORM OF SUSTAINABILITY GRID NOTICE    _____________________, 20__      Wells Fargo Bank, National Association  10 South Wacker Drive, 32nd Floor  Chicago, Illinois 60606  Attention:  Scott Solis  Telecopy: (312) 782-0969  Telephone: (312) 269-4818    Wells Fargo Bank, National Association  600 South 4th St., 8th Floor  Minneapolis, Minnesota 55415  Attention:  David DeAngelis, Syndications Administrator  Telephone: 612-667-4773  Email:  david.r.deangelis@wellsfargo.com       Reference is made to that certain Third Amended and Restated Credit Agreement dated as of  April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), by and among MHC Operating Limited Partnership (the “Borrower”), Equity  LifeStyle Properties, Inc. (the “Parent”), the financial institutions party thereto and their assignees  under Section 12.5. thereof (the “Lenders”), Wells Fargo Bank, National Association, as  Administrative Agent (the “Administrative Agent”), and the other parties thereto.  Capitalized terms  used herein, and not otherwise defined herein, have their respective meanings given to them in the  Credit Agreement.     Pursuant to the terms of the Credit Agreement, the undersigned hereby certifies, in such  person’s corporate and not individual capacity, to the Administrative Agent that:     The Borrower hereby certifies the following for the fiscal year ending December 31, [202__]:    1. The 2020 Baseline was [____].  a. “Smart” water submeters installed = [_____].  b. Total water submeters eligible for replacement = [_____].    2. The total number of water conserving “smart” water submeters installed as a  replacement to a traditional water submeter on an existing water line, as a percentage of the total water  submeters eligible for replacement as of the Agreement Date at all Properties owned by Borrower  and/or the Borrower’s Subsidiaries for such fiscal year was:  [_____].  a.    “Smart” water submeters installed during such fiscal year = [_____].  b.     Total water submeters eligible for replacement = [_____].    3. The Sustainability Metric for such fiscal year was:  2020 Baseline plus [___]% =  [_____].   a.    “Smart” water submeters installed from 1(a) above = [_____].  





 






  O-2  b.   Cumulative “smart” water submeters installed since January 1, 2021 = [____].   c.   Total water submeters eligible for replacement = [_____].       As such, the Borrower herby certifies that Sustainability Metric Threshold Percentage was  satisfied for such fiscal year.    [Signatures on Following Page]  





 






  O-3   IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Sustainability  Grid Notice as of the date first written above.    MHC OPERATING LIMITED PARTNERSHIP,   an Illinois limited partnership    By: Equity LifeStyle Properties, Inc., a Maryland  corporation, its general partner       By: ________________________________        Name: ___________________________        Title: ____________________________