exhibit101wellsfargo_tyl






EXECUTION VERSION  142746705_6  Published CUSIP Number: 90224VAG7  Revolving Credit CUSIP Number: 90224VAH5  Term A-1 Loan CUSIP Number: 90224VAJ1  Term A-2 Loan CUSIP Number: 90224VAK8  $1,400,000,000  CREDIT AGREEMENT  dated as of April 21, 2021,  by and among  TYLER TECHNOLOGIES, INC.,  as Borrower,  the Lenders referred to herein,  as Lenders,  and  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent,  Swingline Lender and Issuing Lender  PNC BANK, NATIONAL ASSOCIATION  and  TRUIST BANK,  as Co-Syndication Agents  and  CITIZENS BANK, N.A.,  and  REGIONS BANK,  as Co-Documentation Agents  WELLS FARGO SECURITIES, LLC,   PNC CAPITAL MARKETS LLC,  and  TRUIST SECURITIES, INC.,   as Joint Lead Arrangers and Joint Bookrunners  Exhibit 10.1 





 






TABLE OF CONTENTS  Page  i  142746705_6  ARTICLE I DEFINITIONS ................................................................................................................... 1  SECTION 1.1 Definitions ...................................................................................................... 1  SECTION 1.2 Other Definitions and Provisions ................................................................. 40  SECTION 1.3 Accounting Terms ........................................................................................ 40  SECTION 1.4 UCC Terms .................................................................................................. 41  SECTION 1.5 Rounding ...................................................................................................... 41  SECTION 1.6 References to Agreement and Laws ............................................................. 41  SECTION 1.7 Times of Day ................................................................................................ 41  SECTION 1.8 Letter of Credit Amounts ............................................................................. 41  SECTION 1.9 Guarantees/Earn-outs ................................................................................... 41  SECTION 1.10 Covenant Compliance Generally.................................................................. 41  SECTION 1.11 Limited Condition Acquisitions ................................................................... 42  SECTION 1.12 Rates; LIBOR Notification ........................................................................... 43  SECTION 1.13 Divisions....................................................................................................... 44  ARTICLE II REVOLVING CREDIT FACILITY................................................................................ 44  SECTION 2.1 Revolving Credit Loans ............................................................................... 44  SECTION 2.2 Swingline Loans ........................................................................................... 44  SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline  Loans ............................................................................................................ 46  SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline  Loans ............................................................................................................ 47  SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment ....................... 48  SECTION 2.6 Termination of Revolving Credit Facility .................................................... 49  ARTICLE III LETTER OF CREDIT FACILITY .................................................................................. 49  SECTION 3.1 L/C Facility .................................................................................................. 49  SECTION 3.2 Procedure for Issuance of Letters of Credit .................................................. 50  SECTION 3.3 Commissions and Other Charges ................................................................. 50  SECTION 3.4 L/C Participations ......................................................................................... 51  SECTION 3.5 Reimbursement Obligation of the Borrower ................................................ 52  SECTION 3.6 Obligations Absolute .................................................................................... 52  SECTION 3.7 Effect of Letter of Credit Application .......................................................... 53  SECTION 3.8 Letters of Credit Issued for Subsidiaries ...................................................... 53  





 






TABLE OF CONTENTS  (continued)  Page  ii  142746705_6  ARTICLE IV TERM LOAN FACILITY ............................................................................................... 53  SECTION 4.1 Term Loans .................................................................................................. 53  SECTION 4.2 Procedure for Advance of Term Loans ........................................................ 53  SECTION 4.3 Repayment of Term Loans ........................................................................... 54  SECTION 4.4 Prepayments of Term Loans ........................................................................ 54  ARTICLE V GENERAL LOAN PROVISIONS .................................................................................. 56  SECTION 5.1 Interest .......................................................................................................... 56  SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans ...................... 57  SECTION 5.3 Fees .............................................................................................................. 58  SECTION 5.4 Manner of Payment ...................................................................................... 58  SECTION 5.5 Evidence of Indebtedness ............................................................................. 59  SECTION 5.6 Sharing of Payments by Lenders .................................................................. 59  SECTION 5.7 Administrative Agent’s Clawback ............................................................... 60  SECTION 5.8 Changed Circumstances ............................................................................... 61  SECTION 5.9 Indemnity ..................................................................................................... 63  SECTION 5.10 Increased Costs ............................................................................................. 64  SECTION 5.11 Taxes ............................................................................................................ 65  SECTION 5.12 Mitigation Obligations; Replacement of Lenders ........................................ 69  SECTION 5.13 Cash Collateral ............................................................................................. 70  SECTION 5.14 Defaulting Lenders ....................................................................................... 71  SECTION 5.15 Incremental Loans ........................................................................................ 73  ARTICLE VI CONDITIONS OF CLOSING AND BORROWING ..................................................... 77  SECTION 6.1 Conditions to Closing and Necessary Closing Funds................................... 77  SECTION 6.2 Conditions to All Extensions of Credit ........................................................ 81  ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES ................ 81  SECTION 7.1 Organization; Power; Qualification .............................................................. 82  SECTION 7.2 Ownership .................................................................................................... 82  SECTION 7.3 Authorization; Enforceability ....................................................................... 82  SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with  Laws, Etc ...................................................................................................... 82  SECTION 7.5 Compliance with Law; Governmental Approvals ........................................ 83  SECTION 7.6 Tax Returns and Payments ........................................................................... 83  SECTION 7.7 Intellectual Property Matters ........................................................................ 83  





 






TABLE OF CONTENTS  (continued)  Page  iii  142746705_6  SECTION 7.8 Environmental Matters ................................................................................. 84  SECTION 7.9 Employee Benefit Matters ............................................................................ 84  SECTION 7.10 Margin Stock ................................................................................................ 85  SECTION 7.11 Government Regulation ............................................................................... 86  SECTION 7.12 Employee Relations ...................................................................................... 86  SECTION 7.13 Burdensome Provisions ................................................................................ 86  SECTION 7.14 Financial Statements .................................................................................... 86  SECTION 7.15 No Material Adverse Change ....................................................................... 87  SECTION 7.16 Solvency ....................................................................................................... 87  SECTION 7.17 Title to Properties ......................................................................................... 87  SECTION 7.18 Litigation ...................................................................................................... 87  SECTION 7.19 Insurance ...................................................................................................... 87  SECTION 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws; and Sanctions ....... 87  SECTION 7.21 Absence of Defaults ..................................................................................... 88  SECTION 7.22 Senior Indebtedness Status ........................................................................... 88  SECTION 7.23 Disclosure ..................................................................................................... 88  ARTICLE VIII AFFIRMATIVE COVENANTS ..................................................................................... 88  SECTION 8.1 Financial Statements .................................................................................... 89  SECTION 8.2 Certificates; Other Reports ........................................................................... 89  SECTION 8.3 Notice of Litigation and Other Matters ........................................................ 91  SECTION 8.4 Preservation of Corporate Existence and Related Matters ........................... 92  SECTION 8.5 Maintenance of Property and Licenses ........................................................ 92  SECTION 8.6 Insurance ...................................................................................................... 92  SECTION 8.7 Accounting Methods and Financial Records ................................................ 93  SECTION 8.8 Payment of Taxes and Other Obligations ..................................................... 93  SECTION 8.9 Compliance with Laws and Approvals ........................................................ 93  SECTION 8.10 Environmental Laws .................................................................................... 93  SECTION 8.11 Compliance with ERISA .............................................................................. 93  SECTION 8.12 Visits and Inspections ................................................................................... 93  SECTION 8.13 Additional Subsidiaries ................................................................................ 94  SECTION 8.14 Use of Proceeds ............................................................................................ 94  SECTION 8.15 Compliance with Anti-Corruption Laws and Sanctions ............................... 95  





 






TABLE OF CONTENTS  (continued)  Page  iv  142746705_6  SECTION 8.16 Corporate Governance .................................................................................. 95  SECTION 8.17 Further Assurances ....................................................................................... 95  ARTICLE IX NEGATIVE COVENANTS ............................................................................................ 95  SECTION 9.1 Indebtedness ................................................................................................. 96  SECTION 9.2 Liens ............................................................................................................. 98  SECTION 9.3 Investments................................................................................................... 99  SECTION 9.4 Fundamental Changes ................................................................................ 101  SECTION 9.5 Asset Dispositions ...................................................................................... 102  SECTION 9.6 Restricted Payments ................................................................................... 102  SECTION 9.7 Transactions with Affiliates ....................................................................... 103  SECTION 9.8 Accounting Changes; Organizational Documents...................................... 104  SECTION 9.9 Payments and Modifications of Subordinated Indebtedness ...................... 104  SECTION 9.10 No Further Negative Pledges; Restrictive Agreements .............................. 104  SECTION 9.11 Nature of Business ..................................................................................... 105  SECTION 9.12 Sale Leasebacks .......................................................................................... 105  SECTION 9.13 Financial Covenants ................................................................................... 105  SECTION 9.14 Disposal of Subsidiary Interests ................................................................. 106  ARTICLE X DEFAULT AND REMEDIES ....................................................................................... 106  SECTION 10.1 Events of Default ........................................................................................ 106  SECTION 10.2 Remedies .................................................................................................... 108  SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc .................................. 108  SECTION 10.4 Crediting of Payments and Proceeds .......................................................... 109  SECTION 10.5 Administrative Agent May File Proofs of Claim ....................................... 110  ARTICLE XI THE ADMINISTRATIVE AGENT .............................................................................. 110  SECTION 11.1 Appointment and Authority........................................................................ 110  SECTION 11.2 Rights as a Lender ...................................................................................... 111  SECTION 11.3 Exculpatory Provisions .............................................................................. 111  SECTION 11.4 Reliance by the Administrative Agent ....................................................... 112  SECTION 11.5 Delegation of Duties ................................................................................... 112  SECTION 11.6 Resignation of Administrative Agent ......................................................... 113  SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders ...................... 114  SECTION 11.8 No Other Duties, Etc .................................................................................. 115  





 






TABLE OF CONTENTS  (continued)  Page  v  142746705_6  SECTION 11.9 Guaranty Matters ........................................................................................ 115  SECTION 11.10 Guaranteed Hedge Agreements and Guaranteed Cash Management  Agreements................................................................................................. 115  SECTION 11.11 Erroneous Payments ................................................................................... 115  ARTICLE XII MISCELLANEOUS ...................................................................................................... 117  SECTION 12.1 Notices ........................................................................................................ 117  SECTION 12.2 Amendments, Waivers and Consents ......................................................... 119  SECTION 12.3 Expenses; Indemnity .................................................................................. 122  SECTION 12.4 Right of Setoff ............................................................................................ 123  SECTION 12.5 Governing Law; Jurisdiction, Etc ............................................................... 124  SECTION 12.6 Waiver of Jury Trial ................................................................................... 125  SECTION 12.7 Reversal of Payments ................................................................................. 125  SECTION 12.8 Injunctive Relief ......................................................................................... 125  SECTION 12.9 Successors and Assigns; Participations ...................................................... 125  SECTION 12.10 Treatment of Certain Information; Confidentiality .................................... 129  SECTION 12.11 Performance of Duties ................................................................................ 130  SECTION 12.12 All Powers Coupled with Interest .............................................................. 130  SECTION 12.13 Survival ...................................................................................................... 130  SECTION 12.14 Titles and Captions ..................................................................................... 131  SECTION 12.15 Severability of Provisions .......................................................................... 131  SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution ................ 131  SECTION 12.17 Term of Agreement .................................................................................... 132  SECTION 12.18 USA PATRIOT Act; Anti-Money Laundering Laws ................................ 132  SECTION 12.19 Independent Effect of Covenants ............................................................... 132  SECTION 12.20 No Advisory or Fiduciary Responsibility .................................................. 132  SECTION 12.21 Inconsistencies with Other Documents ...................................................... 133  SECTION 12.22 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions .................................................................................................. 133  SECTION 12.23 Certain ERISA Matters .............................................................................. 134  SECTION 12.24 Acknowledgement Regarding Any Supported QFCs................................. 135  





 






    vi  142746705_6  EXHIBITS       Exhibit A-1 - Form of Revolving Credit Note  Exhibit A-2 - Form of Swingline Note  Exhibit A-3 - Form of Term A-1 Loan Note  Exhibit A-4 - Form of Term A-2 Loan Note  Exhibit A-5 - Form of Incremental Term Loan Note  Exhibit B - Form of Notice of Borrowing  Exhibit C - Form of Notice of Account Designation  Exhibit D - Form of Notice of Prepayment  Exhibit E - Form of Notice of Conversion/Continuation  Exhibit F - Form of Officer’s Compliance Certificate  Exhibit G - Form of Assignment and Assumption  Exhibit H-1 - Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)  Exhibit H-2 - Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)  Exhibit H-3 - Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)  Exhibit H-4 - Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)      SCHEDULES    Schedule 1.1 - Commitments and Commitment Percentages  Schedule 7.1 - Jurisdictions of Organization and Qualification and Subsidiary Guarantors  Schedule 7.2 - Subsidiaries and Capitalization  Schedule 7.6 - Tax Matters  Schedule 7.12 - Labor and Collective Bargaining Agreements  Schedule 9.1 - Existing Indebtedness  Schedule 9.2 - Existing Liens  Schedule 9.3 - Existing Loans, Advances and Investments  Schedule 9.7 - Transactions with Affiliates    





 






    142746705_6  CREDIT AGREEMENT, dated as of April 21, 2021, by and among TYLER TECHNOLOGIES,  INC., a Delaware corporation, as Borrower, the lenders who are party to this Agreement and the lenders  who may become a party to this Agreement pursuant to the terms hereof, as Lenders, and WELLS  FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent  for the Lenders.  STATEMENT OF PURPOSE  The Borrower has requested, and subject to the terms and conditions set forth in this Agreement,  the Administrative Agent and the Lenders have agreed to extend, certain credit facilities to the Borrower.  NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged by the parties hereto, such parties hereby agree as follows:  ARTICLE I    DEFINITIONS  SECTION 1.1 Definitions.  The following terms when used in this Agreement shall have the  meanings assigned to them below:  “Acquisition” means any transaction, or any series of related transactions, consummated on or  after the date of this Agreement, by which any Credit Party or any of its Subsidiaries (a) acquires any  going business or all or substantially all of the assets of any Person, or division thereof, whether through  purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the  most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities  of a corporation which have ordinary voting power for the election of directors (other than securities  having such power only by reason of the happening of a contingency) or a majority (by percentage or  voting power) of the outstanding ownership interests of a partnership or limited liability company.   “Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder,  and any successor thereto appointed pursuant to Section 11.6.  “Administrative Agent’s Office” means the office of the Administrative Agent specified in or  determined in accordance with the provisions of Section 12.1(c).  “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the  Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “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.  “Agreement” means this Credit Agreement.  “Announcements” has the meaning assigned thereto in Section 1.12.    





 






    2  142746705_6  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to  the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption,  including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, and  the rules and regulations thereunder.  “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory  government orders, decrees, ordinances or rules related to terrorism financing, money laundering, any  predicate crime to money laundering or any financial record keeping, including any applicable provision  of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also known as the  “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).   “Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances,  rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental  Authorities and all orders and decrees of all courts and arbitrators.  “Applicable Margin” means the corresponding percentages per annum as set forth below based  on the Consolidated Total Net Leverage Ratio:     Revolving Credit  Loans and Term A-1  Loans  Term A-2 Loans  Pricing  Level  Consolidated Total Net  Leverage Ratio  Commitment  Fee  LIBOR  +  Base Rate  +  LIBOR  +  Base Rate  +  I Less than to 1.00 to 1.00 0.15% 1.125% 0.125% 0.875% 0.00%  II Greater than or equal to  1.00 to 1.00, but less  than 1.50 to 1.00  0.20% 1.25% 0.25% 1.00% 0.00%  III Greater than or equal to  1.50 to 1.00, but less  than 3.25 to 1.00  0.25% 1.50% 0.50% 1.25% 0.25%  IV Greater than or equal to  3.25 to 1.00  0.30% 1.75% 0.75% 1.50% 0.50%    The Applicable Margin shall be determined and adjusted quarterly on the date five (5) Business Days  after the day on which the Borrower provides an Officer’s Compliance Certificate pursuant to  Section 8.2(a) for the most recently ended fiscal quarter of the Borrower (each such date, a “Calculation  Date”); provided that (a) the Applicable Margin shall be based on Pricing Level III until the first  Calculation Date occurring after the Closing Date and, thereafter the Pricing Level shall be determined by  reference to the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal  quarter of the Borrower preceding the applicable Calculation Date, and (b) if the Borrower fails to  provide an Officer’s Compliance Certificate when due as required by Section 8.2(a) for the most recently  ended fiscal quarter of the Borrower preceding the applicable Calculation Date, the Applicable Margin  from the date on which such Officer’s Compliance Certificate was required to have been delivered shall  be based on Pricing Level IV until such time as such Officer’s Compliance Certificate is delivered, at  which time the Pricing Level shall be determined by reference to the Consolidated Total Net Leverage  Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding such  Calculation Date.  The applicable Pricing Level shall be effective from one Calculation Date until the  





 






    3  142746705_6  next Calculation Date.  Any adjustment in the Pricing Level shall be applicable to all Extensions of Credit  then existing or subsequently made or issued.  Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance  Certificate delivered pursuant to Section 8.1 or 8.2(a) is shown to be inaccurate (regardless of whether  (i) this Agreement is in effect, (ii) any Commitments are in effect, or (iii) any Extension of Credit is  outstanding when such inaccuracy is discovered or such financial statement or Officer’s Compliance  Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher  Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such  Applicable Period, then (A) the Borrower shall immediately deliver to the Administrative Agent a  corrected Officer’s Compliance Certificate for such Applicable Period, (B) the Applicable Margin for  such Applicable Period shall be determined as if the Consolidated Total Net Leverage Ratio in the  corrected Officer’s Compliance Certificate were applicable for such Applicable Period, and (C) the  Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent the accrued  additional interest and fees owing as a result of such increased Applicable Margin for such Applicable  Period, which payment shall be promptly applied by the Administrative Agent in accordance with  Section 5.4.  Nothing in this paragraph shall limit the rights of the Administrative Agent and Lenders with  respect to Sections 5.1(b) and 10.2 nor any of their other rights under this Agreement or any other Loan  Document.  The Borrower’s obligations under this paragraph shall survive the termination of the  Commitments and the repayment of all other Obligations hereunder.  The Applicable Margin shall (a) with respect to any Revolving Extensions of Credit, any Term A-1 Loan  and any Term A-2 Loans, be increased as, and to the extent, required by Section 5.15 and (b) with respect  to any Incremental Term Loans, be determined pursuant to, and in accordance with, Section 5.15.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arrangers” means, collectively, Wells Fargo Securities, LLC, PNC Capital Markets LLC, and  Truist Securities, Inc., each in its capacity as a joint lead arranger and joint bookrunner.  “Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property  (including any sale and leaseback transaction, division, merger or disposition of Equity Interests) by any  Credit Party or any Subsidiary thereof (or the granting of any option or other right to do any of the  foregoing).  The term “Asset Disposition” shall not include (a) the sale of inventory in the ordinary course  of business, (b) the transfer of assets, including by merger or disposition of Equity Interests, to the  Borrower or any Subsidiary Guarantor pursuant to any other transaction permitted pursuant to  Section 9.4, (c) the write-off, discount, sale or other disposition of defaulted or past-due receivables and  similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable  financing transaction, (d) the disposition of any Hedge Agreement, (e) dispositions of Investments in cash  and Cash Equivalents, (f) the transfer by any Credit Party of its assets to any other Credit Party, (g) the  transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection  with any new transfer, such Credit Party shall not pay more than an amount equal to the fair market value  of such assets as determined in good faith at the time of such transfer) and (h) the transfer by any Non- Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary.   “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 12.9), and  accepted by the Administrative Agent, in substantially the form attached as Exhibit G or any other form  approved by the Administrative Agent.  





 






    4  142746705_6  “Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capital  Lease Obligation 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, and (b) in respect of any Synthetic  Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant  lease that would appear on a balance sheet of such Person prepared as of such date in accordance with  GAAP if such lease were accounted for as a Capital Lease Obligation.  “Available Tenor” means, as of any date of determination and with respect to the then-current  Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark  or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as  applicable, that is or may be used for determining the length of an Interest Period pursuant to this  Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark  that is then-removed from the definition of “Interest Period” pursuant to Section 5.8(c)(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).  “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq.  “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus  0.50% and (c) LIBOR for an Interest Period of one month plus 1%; 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 LIBOR (provided that clause (c) shall not be applicable during any period in which LIBOR is  unavailable or unascertainable).  “Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as  provided in Section 5.1(a).  “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 5.8(c)(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  





 






    5  142746705_6  Agent in writing on or prior to such Benchmark Replacement Date that the Borrower has a Hedge  Agreement 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 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  





 






    6  142746705_6  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 5.8(c)(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.  “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:  (a) in the case of clause (a) or (b) 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);  (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the  date of the public statement or publication of information referenced therein;  





 






    7  142746705_6  (c) 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 5.8(c)(i)(B); or  (d) 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. (New York City time) on the fifth (5th) Business Day after  the date notice of such Early Opt-in Election is provided to the Lenders, written notice of  objection to such Early Opt-in Election from Lenders comprising the Required Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the  same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark  Replacement Date will be deemed to have occurred prior to the Reference Time for such determination  and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of 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:  (a) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that such administrator has ceased or will cease to provide all Available Tenors of  such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the  time of such statement or publication, there is no successor administrator that will continue to  provide any Available Tenor of such Benchmark (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation  thereof), the 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  (c) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are no  longer 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).  





 






    8  142746705_6  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a  Benchmark Replacement Date pursuant to clauses (a) or (b) 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 5.8(c) 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 5.8(c).  “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 Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA  or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.  “Borrower” means Tyler Technologies, Inc., a Delaware corporation.  “Borrower Materials” has the meaning assigned thereto in Section 8.2.  “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 Charlotte, North Carolina 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  Rate Loan, 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 London Banking Day.  “Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.  “Capital Lease Obligations” of any Person means, subject to Section 1.3(b), the obligations of  such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to  use) real or personal property, or a combination thereof, which obligations are required to be classified  and accounted for as finance leases on a balance sheet of such Person under GAAP, and the amount of  such obligations shall be the capitalized amount thereof determined in accordance with GAAP.  “Cash Collateralize” means, to pledge and deposit with, or deliver to the Administrative Agent, or  directly to the Issuing Lender (with notice thereof to the Administrative Agent), for the benefit of the  Issuing Lender, the Swingline Lender or the Lenders, as collateral for L/C Obligations or obligations of  the Lenders to fund participations in respect of L/C Obligations or Swingline Loans, cash or deposit  account balances or, if the Administrative Agent and the Issuing Lender and the Swingline Lender shall  agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and  substance satisfactory to the Administrative Agent, such Issuing Lender and the Swingline Lender, as  applicable.  “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, collectively, (a) marketable direct obligations issued or  unconditionally guaranteed by the United States or any agency thereof to the extent such obligations are  backed by the full faith and credit of the United States, in each case maturing within one (1) year from the  date of acquisition thereof, (b) commercial paper maturing no more than one (1) year from the date of  creation thereof and currently having the highest rating obtainable from either S&P or Moody’s (or, if at  





 






    9  142746705_6  any time either S&P or Moody’s are not rating such fund, an equivalent rating from another nationally  recognized statistical rating agency), (c) municipal securities maturing within one (1) year from the date  of acquisition thereof and currently having a rating of “A1” or better by S&P or “P1” or better by  Moody’s (or, if at any time either S&P or Moody’s are not rating such fund, an equivalent rating from  another nationally recognized statistical rating agency), (d) investments in certificates of deposit, banker’s  acceptances, money market deposits and time deposits maturing within one hundred eighty (180) days  from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit  accounts issued or offered by, any domestic office of any commercial bank organized under the laws of  the United States of America or any State thereof that has a combined capital and surplus and undivided  profits of not less than $500,000,000 and having a long-term debt rating of “A” or better by S&P or “A2”  or better from Moody’s (or, if at any time either S&P or Moody’s are not rating such fund, an equivalent  rating from another nationally recognized statistical rating agency), (e) investments in any money market  fund or money market mutual fund that has (i) substantially all of its assets invested in the types of  investments referred to in clauses (a) through (d) above, (ii) net assets of not less than $250,000,000 and  (iii) a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time either S&P or  Moody’s are not rating such fund, an equivalent rating from another nationally recognized statistical  rating agency) and (f) solely with respect to any Subsidiary domiciled outside the United States,  substantially equivalent investments to those outlined in clauses (a) through (d) above which are  reasonably comparable in tenor and credit quality (taking into account the jurisdiction where such  Subsidiary conducts business) and customarily used in the ordinary course of business by similar  companies for cash management purposes in any jurisdiction in which such Person conducts business (it  being understood that such investments may be denominated in the currency of any jurisdiction in which  such Person conducts business).   “Cash Management Agreement” means any agreement to provide cash management services,  including treasury, depository, overdraft, credit or debit card (including non-card electronic payables and  purchasing cards), electronic funds transfer and other cash management arrangements.  “Cash Management Bank” means any Person that, (a) at the time it enters into a Cash  Management Agreement with a Credit Party, is a Lender, an Affiliate of a Lender, the Administrative  Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender  (including on the Closing Date), is a party to a Cash Management Agreement with a Credit Party, in each  case in its capacity as a party to such Cash Management Agreement.  “CFC” means a Foreign Subsidiary that is a “controlled foreign corporation” under Section 957  of the Code and any Subsidiary owned directly or indirectly by such Foreign Subsidiary.   “CFC Holdco” means a Subsidiary substantially all the assets of which consist of Equity Interests  in Foreign Subsidiaries that each constitute a CFC and/or Indebtedness or accounts receivable owed by  Foreign Subsidiaries that each constitute a CFC or are treated as owed by any such Foreign Subsidiaries  for U.S. federal income tax purposes.  “Change in Control” means an event or series of events by which:  (a) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the  Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any person  or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan)  becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except  that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity Interests that  such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only  after the passage of time (such right, an “option right”)), directly or indirectly, of more than twenty-five  





 






    10  142746705_6  percent (25%) of the Equity Interests of the Borrower entitled to vote in the election of members of the  board of directors (or equivalent governing body) of the Borrower or (ii) a majority of the members of the  board of directors (or other equivalent governing body) of the Borrower shall not constitute Continuing  Directors; or  (b) there shall have occurred under any indenture or other instrument evidencing any  Indebtedness or Equity Interests in excess of the Threshold Amount any “change in control” or similar  provision (as set forth in the indenture, agreement or other evidence of such Indebtedness) obligating the  Borrower or any of its Subsidiaries to repurchase, redeem or repay all or any part of the Indebtedness or  Equity Interests provided for therein.  “Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,  regulation or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) the making or issuance of any request, rule, guideline, requirement or  directive (whether or not having the force of law) by any Governmental Authority; provided that  notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in  connection therewith and (ii) all requests, rules, guidelines, requirements or directives promulgated by the  Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or  similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III,  shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted,  implemented or issued.  “Class” means, when used in reference to any Loan, whether such Loan is a Revolving Credit  Loan, Swingline Loan, Term A-1 Loan, Term A-2 Loan or an Incremental Term Loan and, when used in  reference to any Commitment, whether such Commitment is a Revolving Credit Commitment, a Term A- 1 Loan Commitment, a Term A-2 Loan Commitment or an Incremental Term Loan Commitment.  “Closing Date” means the date of this Agreement.  “Closing Date Revolving Credit Loans” means the Revolving Credit Loans made on the Closing  Date to fund (a) a portion of the purchase price of the NIC Acquisition and (b) any fees, commissions and  expenses incurred in connection with the Transactions; provided, that the aggregate amount of all  Revolving Credit Loans made on the Closing Date for the purposes set forth in the foregoing clauses (a)  and (b) shall not exceed $250,000,000.  “Code” means the Internal Revenue Code of 1986, and the rules and regulations promulgated  thereunder.  “Commitment Fee” has the meaning assigned thereto in Section 5.3(a).  “Commitment Percentage” means, as to any Lender, such Lender’s Revolving Credit  Commitment Percentage, Term A-1 Loan Percentage, Term A-2 Loan Percentage or Incremental Term  Loan Percentage, as applicable.  “Commitments” means, collectively, as to all Lenders, the Revolving Credit Commitments, the  Term A-1 Loan Commitments, the Term A-2 Loan Commitments and, if applicable, the Incremental  Term Loan Commitments of such Lenders.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  





 






    11  142746705_6  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated” means, when used with reference to financial statements or financial statement  items of any Person, such statements or items on a consolidated basis in accordance with applicable  principles of consolidation under GAAP.  “Consolidated EBITDA” means, for any period, the sum of the following determined on a  Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP:   (a)  Consolidated Net Income for such period (excluding the effects of adjustments pursuant  to GAAP resulting from the application of purchase accounting in relation to any Permitted Acquisition,  net of taxes); plus   (b)  the sum of the following, without duplication, to the extent deducted in determining  Consolidated Net Income for such period:   (i)  income and franchise taxes;  (ii)  Consolidated Interest Expense;  (iii)  amortization, depreciation and other non-cash charges (except to the extent that  such non-cash charges are reserved for cash charges to be taken in the future);  (iv)  extraordinary losses (excluding extraordinary losses from discontinued  operations);  (v)  non-cash stock compensation expense;  (vi)  Transaction Costs in an aggregate amount not to exceed twenty percent (20%) of  Consolidated EBITDA during any period of determination (determined without giving effect to  this clause (b)(vi) and clause (b)(vii) below);  (vii)  (A) unusual and non-recurring cash expenses and charges, (B) one-time non- recurring severance charges incurred within 12 months of any Permitted Acquisition, any  Specified Disposition and/or any other restructuring or other similar initiative taken after the  Closing Date that have been consummated during the applicable period, (C) lease termination  payments made within 12 months of any Permitted Acquisition, any Specified Disposition and/or  any other restructuring or other similar initiative taken after the Closing Date that have been  consummated during the applicable period and (D) the “run rate” amount of any synergies,  operating expense reductions and other cost savings and integration costs, in each case projected  by the Borrower in connection with any Permitted Acquisition, any Specified Disposition any/or  any other restructuring or other similar action taken after the Closing Date that have been  consummated during the applicable period (calculated on a pro forma basis as though such  synergies, operating expense reductions and other cost savings and integration costs had been  realized on the first day of such period), net of the amount of actual benefits realized during such  period from such actions (provided that, with respect to this clause (D), (1) such synergies,  operating expense reductions and cost savings and integration costs are reasonably identifiable,  factually supportable, expected to have a continuing impact on the operations of the Borrower  and its Subsidiaries and have been determined by the Borrower in good faith to be reasonably  anticipated to be realizable within 12 months following any such action as set forth in reasonable  





 






    12  142746705_6  detail in a certificate of a Responsible Officer of the Borrower delivered to the Administrative  Agent and (2) no such amounts shall be added pursuant to this clause to the extent duplicative of  any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma  adjustment or otherwise); provided that the aggregate amount added to Consolidated EBITDA  pursuant to this clause (b)(vii) during any period of determination shall not exceed twenty percent  (20%) of Consolidated EBITDA for such period (determined without giving effect to clause  (b)(vi) above and this clause (b)(vii)); less   (c)  the sum of the following, without duplication, to the extent included in determining  Consolidated Net Income for such period:   (i)  interest income;   (ii)  any extraordinary gains; and   (iii)  non-cash gains or non-cash items increasing Consolidated Net Income.    For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma Basis.  “Consolidated Funded Indebtedness” means, as of any date of determination with respect to  Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of:  (a) all Indebtedness of the Borrower and its Subsidiaries of the types referred to in clauses  (a), (b), (c), (d), (f) and (g) of the definition of Indebtedness; and  (b) all Guarantees of any such Person with respect to any of the Indebtedness of the types  referred to in clause (a) of this definition.  “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of  (a) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately  prior to such date to (b) Consolidated Interest Expense for the period of four (4) consecutive fiscal  quarters ending on or immediately prior to such date.  “Consolidated Interest Expense” means, for any period, the sum of the following determined on a  Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP,  interest expense (including, without limitation, interest expense attributable to Capital Lease Obligations  and all net payment obligations pursuant to Hedge Agreements) for such period but excluding,  notwithstanding Section 1.3, the non-cash portion of interest expense resulting from the application of  FASB ASC 470-20 attributable to the Permitted Convertible Indebtedness that may be wholly or partially  settled in cash.  “Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and  its Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance  with GAAP; provided, that in calculating Consolidated Net Income of the Borrower and its Subsidiaries  for any period, there shall be excluded (a) the net income (or loss) of any Person (other than a Subsidiary  which shall be subject to clause (c) below), in which the Borrower or any of its Subsidiaries has a joint  interest with a third party, except to the extent such net income is actually paid in cash to the Borrower or  any of its Subsidiaries by dividend or other distribution during such period, (b) the net income (or loss) of  any Person accrued prior to the date it becomes a Subsidiary of the Borrower or any of its Subsidiaries or  is merged into or consolidated with the Borrower or any of its Subsidiaries or that Person’s assets are  acquired by the Borrower or any of its Subsidiaries except to the extent included pursuant to the foregoing  





 






    13  142746705_6  clause (a), (c) the net income (if positive), of any Subsidiary to the extent that the declaration or payment  of dividends or similar distributions by such Subsidiary to the Borrower or any of its Subsidiaries of such  net income (i) is not at the time permitted by operation of the terms of its charter or any agreement,  instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such  Subsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in each  case only to the extent of such prohibition or taxes and (d) any gain or loss from Asset Dispositions  during such period.  “Consolidated Total Net Indebtedness” means, as of any date of determination with respect to the  Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of (a) all Consolidated  Funded Indebtedness of the Borrower and its Subsidiaries minus (b) Qualified Cash and Cash Equivalents  of the Borrower and its Subsidiaries then on hand.  “Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a)  Consolidated Total Net Indebtedness on such date to (b) Consolidated EBITDA for the period of four (4)  consecutive fiscal quarters ending on or immediately prior to such date.  “Continuing Directors” means the directors (or equivalent governing body) of the Borrower on  the Closing Date and each other director (or equivalent) of the Borrower, if, in each case, such other  Person’s nomination for election to the board of directors (or equivalent governing body) of the Borrower  is approved by at least 51% of the then Continuing Directors.  “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.  “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.  “Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline Facility, the  L/C Facility, the Term A-1 Loan Facility, the Term A-2 Loan Facility and, if applicable, any Incremental  Term Loan Facility.  “Credit Parties” means, collectively, the Borrower and the Subsidiary Guarantors.  “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.  “Debt Issuance” means the issuance of any Indebtedness for borrowed money by any Credit Party  or any of its Subsidiaries.  “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from  time to time in effect.  





 






    14  142746705_6  “Default” means any of the events specified in Section 10.1 which with the passage of time, the  giving of notice or any other condition, would constitute an Event of Default.  “Defaulting Lender” means, subject to Section 5.14(b), any Lender that (a) has failed to (i) fund  all or any portion of the Revolving Credit Loans, participations in L/C Obligations, participations in  Swingline Loans or any Term Loans required to be funded by it hereunder within two Business Days of  the date such Loans or participations were required to be funded hereunder unless such Lender notifies  the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s  determination that one or more conditions precedent to funding (each of which conditions precedent,  together with any applicable default, shall be specifically identified in such writing) has not been  satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other  Lender any other amount required to be paid by it hereunder (including in respect of its participation in  Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the  Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender in writing that it does  not intend to comply with its funding obligations hereunder, or has made a public statement to that effect  (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and  states that such position is based on such Lender’s determination that a condition precedent to funding  (which condition precedent, together with any applicable default, shall be specifically identified in such  writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written  request by the Administrative Agent or the 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 FDIC or  any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a  Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership  or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a  Governmental Authority so long as such ownership interest does not result in or provide such Lender with  immunity from the jurisdiction of courts within the United States or from the enforcement of judgments  or writs of attachment 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 5.14(b)) upon delivery of written notice of such  determination to the Borrower, the Issuing Lender, the Swingline Lender and each Lender.  “Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of  any security or other Equity Interest into which they are convertible or for which they are exchangeable)  or upon the happening of any event or condition, (a)  mature or are mandatorily redeemable (other than  solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a  result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence  of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and  all other Obligations that are accrued and payable and the termination of the Commitments), (b) are  redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as  a result of a change of control or asset sale so long as any rights of the holders thereof upon the  occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the  Loans and all other Obligations that are accrued and payable and the termination of the Commitments), in  whole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or become  convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute  





 






    15  142746705_6  Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date;  provided that if such Equity Interests is issued pursuant to a plan for the benefit of the Borrower or its  Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified  Equity Interests solely because they may be required to be repurchased by the Borrower or its  Subsidiaries in order to satisfy applicable statutory or regulatory obligations.  “Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United  States.  “Domestic Subsidiary” means any Subsidiary organized under the laws of any political  subdivision of the United States.  “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower 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  (b) the joint election by the Administrative Agent and the Borrower to trigger a  fallback from USD LIBOR and the provision by the Administrative Agent of written notice of  such election to the Lenders.  “Earn-outs” means unsecured liabilities of a Credit Party arising under an agreement to make any  deferred payment as a part of the purchase price for a Permitted Acquisition, including performance  bonuses or consulting payments in any related services, employment or similar agreement, in an amount  that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the  underlying target, in each case, to the extent that such deferred payment would be included as part of such  purchase price.  “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 credit institution or investment firm established in any EEA  Member Country.  “Electronic Record” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  





 






    16  142746705_6  “Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 12.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under  Section 12.9(b)(iii)).    “Employee Benefit Plan” means (a) any employee benefit plan within the meaning of  Section 3(3) of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or  (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven (7) years  been maintained, funded or administered for the employees of any Credit Party or any current or former  ERISA Affiliate.  “Engagement Letter” means the engagement letter dated as of March 26, 2021, by and among the  Borrower, Wells Fargo and Wells Fargo Securities, LLC.  “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits,  demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation,  investigations (other than internal reports prepared by any Person in the ordinary course of business and  not in response to any third party action or request of any kind) or proceedings relating in any way to any  actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or  any approval given, under any such Environmental Law, including, without limitation, any and all claims  by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or  damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from  Hazardous Materials or arising from alleged injury or threat of injury to public health or the environment.  “Environmental Laws” means any and all federal, foreign, state, provincial and local laws,  statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations  and orders of courts or Governmental Authorities, relating to the protection of public health or the  environment, including, but not limited to, requirements pertaining to the manufacture, processing,  distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting,  investigation or remediation of Hazardous Materials.  “Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an  association or business entity, any and all shares, interests, participations, rights or other equivalents  (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether  general or limited), (d) in the case of a limited liability company, membership interests, (e) any other  interest or participation that confers on a Person the right to receive a share of the profits and losses of, or  distributions of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase any  of the foregoing; provided that no Permitted Convertible Indebtedness shall constitute Equity Interests of  the Borrower or any of its Subsidiaries prior to settlement, conversion, exchange or exercise thereof into  or for securities that would otherwise constitute Equity Interests under this definition.  For the avoidance  of doubt, the Borrower’s settling the conversion of Permitted Convertible Indebtedness in cash or a  combination of cash and shares of common stock shall not in and of itself (i) result in Permitted  Convertible Indebtedness being treated as an Equity Interest or (ii) be deemed a payment in respect of an  Equity Interest for any purpose hereunder (including Section 9.6 hereof).   “Equity Issuance” means (a) any issuance by the Borrower of shares of its Equity Interests to any  Person that is not a Credit Party (including, without limitation, in connection with the exercise of options  or warrants or the conversion of any debt securities to equity) and (b) any capital contribution from any  





 






    17  142746705_6  Person that is not a Credit Party into any Credit Party or any Subsidiary thereof.  The term “Equity  Issuance” shall not include (A) any Asset Disposition or (B) any Debt Issuance.  “ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and  regulations thereunder.  “ERISA Affiliate” means any Person who together with any Credit Party or any of its  Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the  Code or Section 4001(b) of ERISA.  “Erroneous Payment” has the meaning assigned thereto in Section 11.11(a).  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor thereto), 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 FRB 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 passage of time, giving of notice, or any other condition, has been satisfied.  “Exchange Act” means the Securities Exchange Act of 1934 (15 U.S.C. § 77 et seq.).   “Excluded Subsidiary” means (a) each CFC, (b) each Subsidiary that is a direct or indirect  Subsidiary of a CFC, (c) each CFC Holdco, (d) each Immaterial Subsidiary and (e) any other Subsidiary  with respect to which the Administrative Agent and the Borrower mutually agree that the cost of  providing a Guarantee would be excessive in relation to the benefit to be afforded thereby.  “Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if,  and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such  Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or  any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule,  regulation or order of the Commodity Futures Trading Commission (or the application or official  interpretation of any thereof) by virtue of such Credit 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 Credit Party or the grant of such security interest  becomes effective with respect to such Swap Obligation (such determination being made after giving  effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit  Party, including under Section 2.12 of the Guaranty Agreement).  If a Swap Obligation arises under a  master agreement governing more than one swap, such exclusion shall apply only to the portion of such  Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes  illegal for the reasons identified in the immediately preceding sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or  required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by  net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the  case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United  





 






    18  142746705_6  States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with  respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which  (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by the Borrower under Section 5.12(b)) or (ii) such Lender changes its Lending Office, except in  each case to the extent that, pursuant to Section 5.11, 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 5.11(g) and (d) any United States federal withholding Taxes imposed under  FATCA.  “Existing Credit Agreement” means that certain Credit Agreement dated as of September 30,  2019 by and among the Borrower, as borrower, the lenders party thereto, as lenders, and Wells Fargo  Bank, National Association, as administrative agent, as amended, restated, supplemented or otherwise  modified as of the date hereof.  “Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of  (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding,  (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then outstanding,  (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding,  (iv) the aggregate principal amount of the Term A-1 Loans made by such Lender then outstanding, (v) the  aggregate principal amount of the Term A-2 Loans made by such Lender then outstanding and (vi) the  aggregate principal amount of Incremental Term Loans, if any, made by such Lender then outstanding, or  (b) the making of any Loan or participation in any Letter of Credit by such Lender, as the context  requires.  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board, as amended from time to time subject to adjustments as provided in Section 1.3(b).   “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or  any amended or successor version that is substantively comparable and not materially more onerous to  comply with), any current or future regulations or official interpretations thereof and any agreements  entered into pursuant to Section 1471(b)(1) of the Code.  “FCA” has the meaning assigned thereto in Section 1.12.  “FDIC” means the Federal Deposit Insurance Corporation.  “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the  rates on overnight federal funds transactions with members of the Federal Reserve System, as published  by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that  if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day  shall be the average of the quotation for such day on such transactions received by the Administrative  Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.   Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be  deemed to be zero for purposes of this Agreement.  “Fee Letters” means (a) the Engagement Letter and (b) the separate letter agreements between (i)  the Borrower and (ii) each Arranger (other than Wells Fargo Securities, LLC), documentation agent or  syndication agent party thereto.  “Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on December 31.  





 






    19  142746705_6  “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.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “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, (a) with respect to the  Issuing Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding  L/C Obligations with respect to Letters of Credit issued by such Issuing Lender, other than such L/C  Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other  Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swingline  Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of outstanding Swingline  Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been  reallocated to other 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, bonds and similar extensions of credit in  the ordinary course of its activities.  “GAAP” means generally accepted accounting principles in the United States set forth in the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or  such other principles as may be approved by a significant segment of the accounting profession in the  United States, that are applicable to the circumstances as of the date of determination, consistently  applied.  “Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and  exemptions of, and all registrations and filings with or issued by, any Governmental Authorities.  “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,  of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other  obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and  including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply  funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance  or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease  property, securities or services for the purpose of assuring the owner of such Indebtedness or other  obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial  statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter of  





 






    20  142746705_6  guaranty issued to support such Indebtedness or obligation or (e) for the purpose of assuring in any other  manner the obligee in respect of such Indebtedness or other obligation of the payment or performance  thereof or to protect such obligee against loss in respect thereof (whether in whole or in part); provided  that the term “Guarantee” shall not include endorsements for collection or deposit, in each case, in the  ordinary course of business, or customary and reasonable indemnity obligations in connection with any  disposition of assets permitted under this Agreement (other than any such obligations with respect to  Indebtedness).  “Guaranteed Cash Management Agreement” means any Cash Management Agreement between  or among any Credit Party and any Cash Management Bank.  “Guaranteed Hedge Agreement” means any Hedge Agreement between or among any Credit  Party and any Hedge Bank.  “Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future  payment and other obligations owing by any Credit Party under (i) any Guaranteed Hedge Agreement  (other than an Excluded Swap Obligation) and (ii) any Guaranteed Cash Management Agreement.  “Guaranteed Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing  Lender, the Hedge Banks, the Cash Management Banks, 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 Guaranteed Obligations and, in each case, their respective successors and permitted assigns.  “Guarantors” means, collectively, the Borrower and the Subsidiary Guarantors.  “Guaranty Agreement” means the unconditional guaranty agreement of even date herewith  executed by the Guarantors in favor of the Administrative Agent, for the ratable benefit and the  Guaranteed Parties, which shall be in form and substance acceptable to the Administrative Agent.  “Hazardous Materials” means any substances or materials (a) which are or become defined as  hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or  toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable,  infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment  and are or become regulated by any Governmental Authority, (c) the presence of which require  investigation or remediation under any Environmental Law or common law, (d) the discharge or emission  or release of which requires a permit or license under any Environmental Law or other Governmental  Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which  pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without  limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum  hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.  “Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  





 






    21  142746705_6  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement.    “Hedge Bank” means any Person that, (a) at the time it enters into a Hedge Agreement with a  Credit Party permitted under Article IX, is a Lender, an Affiliate of a Lender, the Administrative Agent or  an Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender (including  on the Closing Date), is a party to a Hedge Agreement with a Credit Party, in each case in its capacity as a  party to such Hedge Agreement.  “Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after  taking into account the effect of any legally enforceable netting agreement relating to such Hedge  Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date  prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for  such Hedge Agreements, as determined based upon one or more mid-market or other readily available  quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or  any Affiliate of a Lender).  “Holdback” means a portion of the purchase price for a Permitted Acquisition not paid at the  closing therefor but held by a Credit Party for satisfaction of indemnification obligations and purchase  price adjustments.  “IBA” has the meaning assigned thereto in Section 1.12.  “Immaterial Subsidiary” means any Subsidiary of the Borrower that (a) together with its  Subsidiaries, (i) contributed less than seven and one-half percent (7.5%) of the Consolidated revenue of  the Borrower and its Subsidiaries, taken as a whole, during the most recently-ended four fiscal quarter  period (taken as a single period) and (ii) as of any applicable date of determination has assets that  constitute less than seven and one-half percent (7.5%) of the aggregate net book value of the assets of the  Borrower and its Subsidiaries, taken as a whole (each of which calculations, for any Immaterial  Subsidiary organized or acquired since the end of such period or such date, as the case may be, shall be  determined on a pro forma basis as if such Subsidiary were in existence or acquired on such date), (b)  does not Guarantee or provide a Lien on its assets other than Permitted Liens that are not incurred in  connection with borrowed money or otherwise provide credit support with respect to any Indebtedness of  the Borrower or any of its Subsidiaries, (c) does not own any other domestic Subsidiaries (other than  Immaterial Subsidiaries) and (d) has been designated as such by the Borrower in a written notice  delivered to the Administrative Agent (other than any such Subsidiary as to which the Borrower has  revoked such designation by written notice to the Administrative Agent).  “Increase Effective Date” has the meaning assigned thereto in Section 5.15(c).  “Incremental Amendment” has the meaning assigned thereto in Section 5.15(g).  “Incremental Facilities Limit” means, with respect to any proposed incurrence of an Incremental  Increase, the sum of the following:  (a) the amount equal to the sum of (i) the greater of (A) $435,000,000 and (B) 100% of  Consolidated EBITDA for the four (4) consecutive fiscal quarter period most recently ended prior to the  incurrence of such Incremental Increase for which financial statements have been delivered to the  Administrative Agent hereunder less (ii) the total aggregate initial principal amount (as of the date of  





 






    22  142746705_6  incurrence thereof) of all Incremental Increases incurred under this clause (a) after the Closing Date and  prior to the incurrence of such Incremental Increase; plus  (b) the amount of additional Indebtedness that would cause the Consolidated Total Net  Leverage Ratio as of the four (4) consecutive fiscal quarter period most recently ended prior to the  incurrence of such additional Indebtedness (or in the case of any additional Indebtedness, the proceeds of  which will finance a Limited Condition Acquisition, the LCA Test Date), calculated on a Pro Forma  Basis after giving effect to the incurrence of such additional Indebtedness and any Permitted Acquisition  to be consummated using the proceeds of such additional Indebtedness and assuming that the Revolving  Credit Facility (including any proposed Incremental Revolving Credit Increase) is fully drawn at such  time, not to exceed 3.25 to 1.00.  Unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Incremental  Increase would be permitted under clause (b) above on the applicable date of incurrence, such  Incremental Increase (or the relevant portion thereof) shall be deemed to have been incurred in reliance on  clause (b) above prior to the utilization of any amount available under clause (a) above.  Furthermore,  notwithstanding anything to the contrary contained herein, for purposes of calculating the Consolidated  Total Net Leverage Ratio, the proceeds from any additional Indebtedness incurred pursuant to any  Incremental Increase shall not be netted from Consolidated Total Net Indebtedness.  “Incremental Increase” has the meaning assigned thereto in Section 5.15(a)(ii).  “Incremental Lender” has the meaning assigned thereto in Section 5.15(a).  “Incremental Loan Commitment” has the meaning assigned thereto in Section 5.15(a)(ii).  “Incremental Revolving Credit Commitment(s)” has the meaning assigned thereto in  Section 5.15(a)(ii).  “Incremental Revolving Credit Increase(s)” has the meaning assigned thereto in  Section 5.15(a)(ii).  “Incremental Term Loan(s)” has the meaning assigned thereto in Section 5.15(a)(i).  “Incremental Term Loan Commitment(s)” has the meaning assigned thereto in Section 5.15(a)(i).  “Incremental Term Loan Facility” means any new term loan facility established pursuant to  Section 5.15 and all such term loan facilities collectively as the context requires.  “Incremental Term Loan Lender” means any Lender with an Incremental Term Loan  Commitment and/or outstanding Incremental Term Loans.  “Incremental Term Loan Note” means a promissory note made by the Borrower in favor of an  Incremental Term Loan Lender evidencing the Incremental Term Loans made by such Incremental Term  Loan Lender, substantially in the form attached as Exhibit A-5, and any substitutes therefor, and any  replacements, restatements, renewals or extension thereof, in whole or in part.  “Incremental Term Loan Percentage” means, with respect to any Incremental Term Loan Lender  at any time, the percentage of the total outstanding principal balance of the Incremental Term Loans  represented by the outstanding principal balance of such Incremental Term Loan Lender’s Incremental  Term Loans.  





 






    23  142746705_6  “Indebtedness” means, with respect to any Person at any date and without duplication, the sum of  the following:  (a) all liabilities, obligations and indebtedness for borrowed money including, but not limited  to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;  (b) all obligations to pay the deferred purchase price of property or services of any such  Person (including, without limitation, all obligations under non-competition, earn-out or similar  agreements), except trade payables arising in the ordinary course of business not more than ninety (90)  days past due, or that are currently being contested in good faith by appropriate proceedings and with  respect to which reserves in conformity with GAAP have been provided for on the books of such Person;  (c) the Attributable Indebtedness of such Person with respect to such Person’s Capital Lease  Obligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);  (d) all obligations of such Person under conditional sale or other title retention agreements  relating to property purchased by such Person to the extent of the value of such property (other than  customary reservations or retentions of title under agreements with suppliers entered into in the ordinary  course of business);  (e) all Indebtedness of any other Person secured by a Lien on any asset owned or being  purchased by such Person (including indebtedness arising under conditional sales or other title retention  agreements except trade payables arising in the ordinary course of business), whether or not such  indebtedness shall have been assumed by such Person or is limited in recourse;  (f) all obligations, contingent or otherwise, of any such Person relative to the face amount of  letters of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, and  banker’s acceptances issued for the account of any such Person;  (g) all obligations of any such Person in respect of Disqualified Equity Interests;  (h) all net obligations of such Person under any Hedge Agreements; and  (i) all Guarantees of any such Person with respect to any of the foregoing.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any  partnership or joint venture (other than a joint venture that is itself a corporation or limited liability  company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is  expressly made non-recourse to such Person.  The amount of any net obligation under any Hedge  Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.    “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of any Credit Party under any Loan Document and  (b) to the extent not otherwise described in clause (a), Other Taxes.  “Insurance and Condemnation Event” means the receipt by any Credit Party or any of its  Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss,  physical destruction or damage, taking or similar event with respect to any of their respective Property.  “Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such  LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the  





 






    24  142746705_6  date one (1), three (3), or six (6) months (in each case, if available to the applicable Lenders), or if agreed  by all of the relevant Lenders, twelve (12) months thereafter, in each case as selected by the Borrower in  its Notice of Borrowing or Notice of Conversion/Continuation and subject to availability; provided that:  (a) the Interest Period shall commence on the date of advance of or conversion to any  LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive Interest  Period shall commence on the date on which the immediately preceding Interest Period expires;  (b) if any Interest Period would otherwise expire on a day that is not a Business Day, such  Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period with  respect to a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of  the month after which no further Business Day occurs in such month, such Interest Period shall expire on  the immediately preceding Business Day;  (c) any Interest Period with respect to a LIBOR Rate Loan that begins on the last Business  Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar  month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar  month at the end of such Interest Period;  (d) no Interest Period shall extend beyond the Revolving Credit Maturity Date, the Term A-1  Loan Maturity Date, the Term A-2 Loan Maturity Date or the maturity date with respect to any  Incremental Term Loan, as applicable; and  (e) there shall be no more than ten (10) Interest Periods in effect at any time.  “Interstate Commerce Act” means the body of law commonly known as the Interstate Commerce  Act (49 U.S.C. App. § 1 et seq.).  “Investment” has the meaning assigned thereto in Section 9.3.  “IRS” means the United States Internal Revenue Service.  “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.  “Issuing Lender” means Wells Fargo, together with any successor.  “L/C Commitment” means, as to the Issuing Lender, the obligation to issue Letters of Credit for  the account of the Borrower or one or more of its Subsidiaries from time to time in an aggregate amount  equal to the L/C Sublimit.   “L/C Facility” means the letter of credit facility established pursuant to Article III.  “L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate undrawn  and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings  under Letters of Credit which have not then been reimbursed pursuant to Section 3.5.  “L/C Participants” means, with respect to any Letter of Credit, the collective reference to all the  Revolving Credit Lenders other than the Issuing Lender.  





 






    25  142746705_6  “L/C Sublimit” means the lesser of (a) Twenty-Five Million Dollars ($25,000,000) and (b) the  Revolving Credit Commitment.  “Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date  applicable to any Loan, Revolving Credit Commitment, Term Loan Commitment or Incremental Loan  Commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan.  “LCA Test Date” has the meaning assigned thereto in Section 1.11(a).    “Lender” means the Persons listed on Schedule 1.1 and any other Person that shall have become a  party to this Agreement as a Lender pursuant to an Assignment and Assumption or pursuant to  Section 5.15, other than any Person that ceases to be a party hereto as a Lender pursuant to an Assignment  and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline  Lender.  “Lending Office” means, with respect to any Lender, the office of such Lender maintaining such  Lender’s Extensions of Credit.  “Letter of Credit Application” means an application, in the form specified by the Issuing Lender  from time to time, requesting such Issuing Lender to issue a Letter of Credit.  “Letters of Credit” means the collective reference to letters of credit issued pursuant to  Section 3.1.  “LIBOR” means, subject to the implementation of a Benchmark Replacement in accordance with  Section 5.8(c):  (a)  for any interest rate calculation with respect to a LIBOR Rate Loan, 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) London Banking Days  prior to the first day of the applicable Interest Period.  If, for any reason, such rate 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) London Banking Days prior to the first day of the applicable Interest  Period for a period equal to such Interest Period; and  (b) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest  per annum determined on the basis of the rate for deposits in Dollars for an Interest Period equal  to one month (commencing on the date of determination of such interest rate) as published by  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) on such date of determination, or, if such date is not a Business Day, then the  immediately preceding Business Day.  If, for any reason, such rate is not so published then  “LIBOR” for such Base Rate Loan 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) on such date of determination for a period equal to one month commencing  on such date of determination.  





 






    26  142746705_6  Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all  purposes, absent manifest error.  Notwithstanding the foregoing, (A) in no event shall LIBOR (including any Benchmark  Replacement with respect thereto) be less than 0% and (B) unless otherwise specified in any amendment  to this Agreement entered into in accordance with Section 5.8(c), 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 Rate” means a rate per annum determined by the Administrative Agent pursuant to the  following formula:  LIBOR Rate = LIBOR   1.00-Eurodollar Reserve Percentage    Notwithstanding the foregoing, if the LIBOR Rate shall be less than zero, such rate shall be  deemed to be zero for purposes of this Agreement.    “LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate as  provided in Section 5.1(a).  “Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge,  security interest, hypothecation or encumbrance of any kind in respect of such asset.  For the purposes of  this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or  holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease  Obligation or other title retention agreement relating to such asset.  “Limited Condition Acquisition” means any Acquisition that (a) is not prohibited hereunder, (b)  is financed in whole or in part with a substantially concurrent incurrence of an Incremental Term Loan,  (c) is not conditioned on the availability of, or on obtaining, third-party financing and (d) is completed  within six (6) months of the LCA Test Date (or such longer period as may be agreed to by the  Administrative Agent and the lenders providing such Incremental Term Loan in connection therewith).  “Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit  Applications, the Guaranty Agreement, the Fee Letters and each other document, instrument, certificate  and agreement executed and delivered by the Credit Parties or any of their respective Subsidiaries in favor  of or provided to the Administrative Agent or any Guaranteed Party in connection with this Agreement or  otherwise referred to herein or contemplated hereby (excluding any Guaranteed Hedge Agreement and  any Guaranteed Cash Management Agreement).  “Loans” means the collective reference to the Revolving Credit Loans, the Swingline Loans, the  Term A-1 Loans, the Term A-2 Loans and, if applicable, any Incremental Term Loans, and “Loan” means  any of such Loans.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted by  and between banks in the London interbank Eurodollar market.  “Material Adverse Effect” means, with respect to the Borrower and its Subsidiaries, (a) a material  adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities  (actual or contingent) or condition (financial or otherwise) of such Persons, taken as a whole, (b) a  material impairment of the ability of any such Person to perform its obligations under the Loan  





 






    27  142746705_6  Documents to which it is a party, (c) a material adverse effect on the rights and remedies of the  Administrative Agent or any Lender under any Loan Document or (d) an impairment of the legality,  validity, binding effect or enforceability against any Credit Party of any Loan Document to which it is a  party.  “Material Permitted Acquisition” means a Permitted Acquisition (or series of related  Acquisitions) having Permitted Acquisition Consideration in excess of $250,000,000.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances, an amount equal to 105% of the sum of (i) the Fronting Exposure of  the Issuing Lender with respect to Letters of Credit issued and outstanding at such time and (ii) the  Fronting Exposure of the Swingline Lender with respect to all Swingline Loans outstanding at such time  and (b) otherwise, an amount determined by the Administrative Agent and the Issuing Lender in their sole  discretion.  “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA  to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has  accrued an obligation to make contributions within the preceding seven (7) years.  “Necessary Closing Funds” means the proceeds of (a) the Term A-1 Loan, (b) the Term A-2 Loan  and (c) the Closing Date Revolving Credit Loans.  “Net Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition or Insurance  and Condemnation Event, all cash and Cash Equivalents received by any Credit Party or any of its  Subsidiaries therefrom (including any cash or Cash Equivalents received by way of deferred payment  pursuant to, or by monetization of, a note receivable or otherwise, as and when received) less the sum of  (i) all income taxes and other taxes assessed by, or reasonably estimated to be payable to, a Governmental  Authority as a result of such transaction (provided that if such estimated taxes exceed the amount of  actual taxes required to be paid in cash in respect of such Asset Disposition, the amount of such excess  shall constitute Net Cash Proceeds), (ii) all reasonable and customary out-of-pocket fees and expenses  incurred in connection with such transaction or event, (iii) the principal amount of, premium, if any, and  interest on any Indebtedness (other than Indebtedness under the Loan Documents) secured by a Lien on  the asset (or a portion thereof) disposed of, which Indebtedness is required to be repaid in connection with  such transaction or event and (iv) all amounts that are set aside as a reserve (A) for adjustments in respect  of the purchase price of such assets, (B) for any liabilities associated with such sale or casualty, to the  extent such reserve is required by GAAP or as otherwise required pursuant to the documentation with  respect to such Asset Disposition or Insurance and Condemnation Event, (C) for the payment of  unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days  after, the date of such sale or other disposition and (D) for the payment of indemnification obligations;  provided that, to the extent and at the time any such amounts are released from such reserve and received  by such Credit Party or any of its Subsidiaries, such amounts shall constitute Net Cash Proceeds, and  (b) with respect to any Equity Issuance or Debt Issuance, the gross cash proceeds received by any Credit  Party or any of its Subsidiaries therefrom less all reasonable and customary out-of-pocket legal,  underwriting and other fees and expenses incurred in connection therewith.  “NIC” means NIC Inc.  “NIC Acquisition” means the Acquisition by the Borrower of all of the Equity Interests of NIC  pursuant to NIC Merger Agreement.   





 






    28  142746705_6  “NIC Merger Agreement” means that certain Agreement and Plan of Merger dated as of February  9, 2021, among the Borrower, as buyer, Topos Acquisition, Inc., and NIC.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver,  amendment, modification or termination that (a) requires the approval of all Lenders or all affected  Lenders in accordance with the terms of Section 12.2 and (b) has been approved by the Required Lenders  or the Required Facility Lenders, as applicable.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a Subsidiary  Guarantor.  “Notes” means the collective reference to the Revolving Credit Notes, the Swingline Note, the  Term A-1 Loan Notes, the Term A-2 Loan Notes and, if applicable, any Incremental Term Loan Note.  “Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).  “Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).  “Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.  “Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).  “Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal  of and interest on (including interest accruing after the filing of any bankruptcy or similar petition) the  Loans, (b) the L/C Obligations and (c) all other fees and commissions (including attorneys’ fees), charges,  indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the  Credit Parties and each of their respective Subsidiaries to the Lenders, the Issuing Lender or the  Administrative Agent, in each case under any Loan Document, with respect to any Loan or Letter of  Credit of every kind, nature and description, direct or indirect, absolute or contingent, due or to become  due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and  including interest and fees that accrue after the commencement by or against any Credit Party or any  Subsidiary thereof of any proceeding under any Debtor Relief Laws, naming such Person as the debtor in  such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.  “Officer’s Compliance Certificate” means a certificate of the chief financial officer or the  treasurer of the Borrower substantially in the form attached as Exhibit F.  “Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of  Property (whether real, personal or mixed) by such Person as lessee which is not a capital lease.  “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).  





 






    29  142746705_6  “Other Taxes” means all present or future stamp, court, 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 5.12).  “Participant” has the meaning assigned thereto in Section 12.9(d).  “Participant Register” has the meaning assigned thereto in Section 12.9(d).  “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 or any successor agency.  “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is  subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained,  funded or administered for the employees of any Credit Party or any ERISA Affiliate or (b) has at any  time within the preceding seven (7) years been maintained, funded or administered for the employees of  any Credit Party or any current or former ERISA Affiliates.  “Permitted Acquisition” means any Acquisition that meets all of the following requirements  (which, in the case of a Limited Condition Acquisition, shall be subject to Section 1.11):  (a) no less than five (5) Business Days prior to the proposed closing date of such  Acquisition, the Borrower shall have delivered written notice of such Acquisition to the Administrative  Agent and the Lenders, which notice shall include the proposed closing date of such Acquisition;  provided that if the Permitted Acquisition Consideration with respect to such Acquisition is less than  $50,000,000, such written notice may be delivered within 30 days following the closing date of such  Acquisition;   (b) such Acquisition shall be consensual and, if applicable, shall have been approved by the  board of directors and/or the shareholders of the Person whose Equity Interests or assets are proposed to  be acquired;  (c) the Person or business to be acquired shall be in a line of business permitted pursuant to  Section 9.11;  (d) the Borrower shall have delivered to the Administrative Agent all documents required to  be delivered pursuant to, and in accordance with, Section 8.13;  (e) with respect to any Acquisition with respect to which the Permitted Acquisition  Consideration is equal to or greater than $75,000,000, no later than five (5) Business Days prior to the  proposed closing date of such Acquisition, the Borrower shall have delivered to the Administrative Agent  an Officer’s Compliance Certificate for the most recent fiscal quarter end preceding such Acquisition for  which financial statements are available demonstrating, in form and substance reasonably satisfactory to  the Administrative Agent, that the Borrower is in compliance on a Pro Forma Basis (as of the date of the  Acquisition and after giving effect thereto and any Indebtedness incurred in connection therewith) with  each covenant contained in Section 9.13;  





 






    30  142746705_6  (f) with respect to any Material Permitted Acquisition, no later than five (5) Business Days  prior to the proposed closing date of such Acquisition the Borrower, to the extent requested by the  Administrative Agent, shall have delivered to the Administrative Agent promptly upon the finalization  thereof copies of substantially final Permitted Acquisition Documents, which shall be in form and  substance reasonably satisfactory to the Administrative Agent; and  (g) no Default or Event of Default shall have occurred and be continuing both before and  after giving effect to such Acquisition and any Indebtedness incurred in connection therewith.  “Permitted Acquisition Consideration” means the aggregate amount of the purchase price,  including, but not limited to, any assumed debt, Earn-Outs (valued at the maximum amount payable  thereunder), Holdbacks, other deferred payments, or Equity Interests of the Borrower, to be paid on a  singular basis in connection with any applicable Permitted Acquisition as set forth in the applicable  Permitted Acquisition Documents executed by the Borrower or any of its Subsidiaries in order to  consummate the applicable Permitted Acquisition.  “Permitted Acquisition Documents” means with respect to any Acquisition proposed by the  Borrower or any Subsidiary, final copies or substantially final drafts if not executed at the required time  of delivery of the purchase agreement, sale agreement, merger agreement or other agreement evidencing  such Acquisition, including, without limitation, all legal opinions and each other document executed,  delivered, contemplated by or prepared in connection therewith and any amendment, modification or  supplement to any of the foregoing.  “Permitted Convertible Indebtedness” means that certain unsecured Indebtedness of the Borrower  in an aggregate principal amount of $600,000,000, incurred by the Borrower on or about March 9, 2021,  as permitted pursuant to Section 9.1(l), that is either (a) convertible into common stock of the Borrower  (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of  such common stock) or (b) sold as units with customary call options, warrants or rights to purchase (or  substantially equivalent derivative transactions) for transactions of such type (as determined by the  Borrower in good faith) that are exercisable for common stock of the Borrower and/or cash (in an amount  determined by reference to the price of such common stock).    “Permitted Liens” means the Liens permitted pursuant to Section 9.2.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Platform” means Debt Domain, Intralinks, SyndTrak or a substantially similar electronic  transmission system.  “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to  time by the Administrative Agent as its prime rate.  Each change in the Prime Rate shall be effective as of  the opening of business on the day such change in such prime rate occurs.  The parties hereto  acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or  base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.  “Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA for any period  during which one or more Specified Transactions occurs, that such Specified Transaction (and all other  Specified Transactions that have been consummated during the applicable period) shall be deemed to  have occurred as of the first day of the applicable period of measurement and all income statement items  (whether positive or negative) attributable to the Property or Person disposed of in a Specified Disposition  





 






    31  142746705_6  shall be excluded and all income statement items (whether positive or negative) attributable to the  Property or Person acquired in a Permitted Acquisition shall be included (provided that such income  statement items to be included are reflected in financial statements or other financial data reasonably  acceptable to the Administrative Agent and based upon reasonable assumptions and calculations which  are expected to have a continuous impact).  “Property” means any right or interest in or to property of any kind whatsoever, whether real,  personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,  as any such exemption may be amended from time to time.  “Public Lenders” has the meaning assigned thereto in Section 8.2.  “Qualified Cash and Cash Equivalents” means, as to any Person, as of any date of determination,  the aggregate amount of Unrestricted cash and Cash Equivalents held by such Person and its Subsidiaries  in domestic deposit accounts or securities accounts.  For purposes hereof, “Unrestricted” means, when  referring to cash and Cash Equivalents of any Person, that such cash and Cash Equivalents (a) do not  appear, or would not be required to appear, as “restricted” on the financial statements of such Person and  its Subsidiaries (unless related to the Loan Documents or the Liens created thereunder), (b) are not subject  to a Lien in favor of any Person other than (i) Liens in favor of the Administrative Agent under the Loan  Documents (if any) or (ii) Liens of the type referred to in Section 9.2(k), or (c) are not otherwise  unavailable to such Person or its Subsidiaries.  “Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.  “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Lender, as  applicable.  “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) London Banking 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 assigned thereto in Section 12.9(c).  “Reimbursement Obligation” means the obligation of the Borrower to reimburse the Issuing  Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of  such Person and of such Person’s Affiliates.  “Relevant Governmental Body” means the 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.  “Required Facility Lenders” means (a) for the Revolving Credit Facility, the Required Revolving  Credit Lenders, (b) for the Term A-1 Loan Facility, the Required Term A-1 Loan Lenders or (c) for the  Term A-2 Loan Facility, the Required Term A-2 Loan Lenders, as applicable.  





 






    32  142746705_6  “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing  more than fifty percent (50%) of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of  any Defaulting Lender shall be disregarded in determining Required Lenders at any time.  “Required Revolving Credit Lenders” means, at any time, Revolving Credit Lenders having  unused Revolving Credit Commitments and Revolving Credit Exposure representing more than fifty  percent (50%) of the aggregate unused Revolving Credit Commitments and Revolving Credit Exposure of  all Revolving Credit Lenders.  The unused Revolving Credit Commitment of, and Revolving Credit  Exposure held or deemed held by, any Defaulting Lender shall be disregarded in determining Required  Revolving Credit Lenders at any time.   “Required Term A-1 Loan Lenders” means, at any time, Lenders having outstanding Term A-1  Loans, representing more than fifty percent (50%) of the sum of the aggregate outstanding Term A-1  Loans at such time.  The outstanding Term A-1 Loans of any Defaulting Lender shall be disregarded in  determining Required Term A-1 Loan Lenders at any time.   “Required Term A-2 Loan Lenders” means, at any time, Lenders having outstanding Term A-2  Loans, representing more than fifty percent (50%) of the sum of the aggregate outstanding Term A-2  Loans at such time.  The outstanding Term A-2 Loans of any Defaulting Lender shall be disregarded in  determining Required Term A-2 Loan Lenders at any time.   “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means, as to any Person, the chief executive officer, president, chief  financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such  Person designated in writing by the Borrower and reasonably acceptable to the Administrative Agent;  provided that, to the extent requested thereby, the Administrative Agent shall have received a certificate  of such Person certifying as to the incumbency and genuineness of the signature of each such officer.   Any document delivered hereunder or under any other Loan Document that is signed by a Responsible  Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate,  partnership and/or other action on the part of such Person and such Responsible Officer shall be  conclusively presumed to have acted on behalf of such Person.  “Restricted Payment” has the meaning assigned thereto in Section 9.6.  “Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the obligation of  such Revolving Credit Lender to make Revolving Credit Loans to, and to purchase participations in L/C  Obligations and Swingline Loans for the account of, the Borrower hereunder in an aggregate principal  amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit  Lender’s name on the Register, as such amount may be modified at any time or from time to time  pursuant to the terms hereof (including, without limitation, Section 5.15) and (b) as to all Revolving  Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make Revolving Credit  Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof  (including, without limitation, Section 5.15).  The aggregate Revolving Credit Commitment of all the  Revolving Credit Lenders on the Closing Date shall be $500,000,000.  The Revolving Credit  Commitment of each Revolving Credit Lender on the Closing Date is set forth opposite the name of such  Lender on Schedule 1.1.  “Revolving Credit Commitment Percentage” means, with respect to any Revolving Credit Lender  at any time, the percentage of the total Revolving Credit Commitments of all the Revolving Credit  





 






    33  142746705_6  Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment.  If the Revolving  Credit Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be  determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any  assignments.  The initial Revolving Credit Commitment Percentage of each Revolving Credit Lender is  set forth opposite the name of such Lender on Schedule 1.1.  “Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the  aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Revolving  Credit Lender’s participation in L/C Obligations and Swingline Loans at such time.  “Revolving Credit Facility” means the revolving credit facility established pursuant to Article II  (including any increase in such revolving credit facility established pursuant to Section 5.15).  “Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving Credit  Commitment or if the Revolving Credit Commitment has been terminated, all Lenders having Revolving  Credit Exposure.  “Revolving Credit Loan” means any revolving loan made to the Borrower pursuant to  Section 2.1, and all such revolving loans collectively as the context requires.  “Revolving Credit Maturity Date” means the earliest to occur of (a) April 21, 2026, (b) the date  of termination of the entire Revolving Credit Commitment by the Borrower pursuant to Section 2.5, and  (c) the date of termination of the Revolving Credit Commitment pursuant to Section 10.2(a); provided  that, if any of the Permitted Convertible Indebtedness remains outstanding on the Springing Maturity  Date, then the Revolving Credit Maturity Date shall occur on the Springing Maturity Date.  “Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving  Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender,  substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements,  restatements, renewals or extension thereof, in whole or in part.  “Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit Loans  and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect  to any borrowings and prepayments or repayments of Revolving Credit Loans and Swingline Loans, as  the case may be, occurring on such date; plus (b) with respect to any L/C Obligations on any date, the  aggregate outstanding amount thereof on such date after giving effect to any Extensions of Credit  occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such  date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of  Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking  effect on such date.  “Revolving Extensions of Credit” means (a) any Revolving Credit Loan then outstanding, (b) any  Letter of Credit then outstanding or (c) any Swingline Loan then outstanding.  “S&P” means Standard & Poor’s Rating Service, a division of S&P Global Inc. and any  successor thereto.   “Sanctioned Country” means at any time, a country, region or territory which is itself the subject  or target of any Sanctions (which, as of the Closing Date, includes Cuba, Iran, North Korea, Syria and  Crimea).  





 






    34  142746705_6  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of  designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security  Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any  Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by  any such Person or Persons described in clauses (a) and (b).  “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or  enforced from time to time by the U.S. government (including those administered by OFAC), the  European Union, Her Majesty’s Treasury, or other relevant sanctions authority.   “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “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” and “Solvency” mean, with respect to any Person on any date of determination, that on  such date (a) the fair value of the property of such Person is greater than the total amount of liabilities,  including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such  Person is not less than the amount that will be required to pay the probable liability of such Person on its  debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that  it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they  mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business  or a transaction, for which such Person’s property would constitute an unreasonably small capital, and  (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as  they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be  computed as the amount that, in the light of all the facts and circumstances existing at such time,  represents the amount that can reasonably be expected to become an actual or matured liability.  “Specified Disposition” means any Asset Disposition having gross sales proceeds in excess of the  Threshold Amount.  “Specified Transactions” means (a) any Specified Disposition, (b) any Permitted Acquisition and  (c) the Transactions.  “Springing Maturity Date” means the date that is six (6) months prior to the maturity date of the  Permitted Convertible Indebtedness; provided that no Springing Maturity Date shall be deemed to have  occurred if, on the Springing Maturity Date and at all times following the Springing Maturity Date until  the Permitted Convertible Indebtedness is repaid, redeemed or repurchased in full or the maturity date of  the Permitted Convertible Indebtedness is extended to a date that is at least six (6) months after the fifth  (5th) anniversary of the Closing Date, the Borrower maintains Liquidity of not less than an amount equal  to 105% of the amount required to settle all of the outstanding Permitted Convertible Indebtedness in cash  (including all accrued and unpaid interest, premiums and make-whole amounts).  For purposes of this  





 






    35  142746705_6  definition, “Liquidity” means, at any time, an amount equal to the sum of (a) the amount by which the  Revolving Credit Commitments exceed the Revolving Credit Outstandings (solely to the extent that, as of  the date of determination, the Borrower would be in compliance on a Pro Forma Basis (after giving effect  to the drawing of Extensions of Credit and the use of proceeds thereof) with the financial covenants set  forth in Section 9.13 based on the financial statements most recently delivered pursuant to Section 8.1(a)  or 8.1(b), as applicable) plus (b) the Dollar amount of all Qualified Cash and Cash Equivalents  maintained by the Borrower and its Subsidiaries in the United States at such time.     “Subordinated Indebtedness” means the collective reference to any Indebtedness incurred by the  Borrower or any of its Subsidiaries that is subordinated in right and time of payment to the Obligations on  terms and conditions satisfactory to the Administrative Agent.  “Subsidiary” means as to any Person, any corporation, partnership, limited liability company or  other entity of which more than fifty percent (50%) of the outstanding Equity Interests having ordinary  voting power to elect a majority of the board of directors (or equivalent governing body) or other  managers of such corporation, partnership, limited liability company or other entity is at the time owned  by (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) such  Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such  corporation, partnership, limited liability company or other entity shall have or might have voting power  by reason of the happening of any contingency).  Unless otherwise qualified, references to “Subsidiary”  or “Subsidiaries” herein shall refer to those of the Borrower.  “Subsidiary Guarantors” means, collectively, (a) the Subsidiaries of the Borrower listed on  Schedule 7.1 that are identified as a “Guarantor” and (b) each other Subsidiary of the Borrower that shall  be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 8.13.  “Swap Obligation” means, with respect to any 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.    “Swingline Commitment” means the lesser of (a) Fifty Million Dollars ($50,000,000) and (b) the  Revolving Credit Commitment.  “Swingline Facility” means the swingline facility established pursuant to Section 2.2.  “Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any  successor thereto.  “Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower  pursuant to Section 2.2, and all such swingline loans collectively as the context requires.  “Swingline Note” means a promissory note made by the Borrower in favor of the Swingline  Lender, if requested, evidencing the Swingline Loans made by the Swingline Lender, substantially in the  form attached as Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals  or extension thereof, in whole or in part.  “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan  or similar off-balance sheet financing product where such transaction is considered borrowed money  indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.  





 






    36  142746705_6  “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, fines, additions to tax or penalties applicable thereto.  “Term A-1 Loan Commitment” means (a) as to any Term A-1 Loan Lender, the obligation of  such Term A-1 Loan Lender to make a portion of the Term A-1 Loan, to the account of the Borrower  hereunder on the Closing Date in an aggregate principal amount not to exceed the amount set forth  opposite such Lender’s name on Schedule 1.1, as such amount may be increased, reduced or otherwise  modified at any time or from time to time pursuant to the terms hereof and (b) as to all Term A-1 Loan  Lenders, the aggregate commitment of all Term A-1 Loan Lenders to make such Term A-1 Loans.  The  aggregate Term A-1 Loan Commitment with respect to the Term A-1 Loans of all Term A-1 Loan  Lenders on the Closing Date shall be $600,000,000.  The Term A-1 Loan Commitment of each Term A-1  Loan Lender as of the Closing Date is set forth opposite the name of such Term A-1 Loan Lender on  Schedule 1.1.  “Term A-1 Loan Facility” means the term loan facility established with respect to the Term A-1  Loans pursuant to Article IV.  “Term A-1 Loan Lender” means any Lender with a Term A-1 Loan Commitment and/or  outstanding Term A-1 Loans.  “Term A-1 Loan Maturity Date” means the first to occur of (a) April 21, 2026, and (b) the date of  acceleration of the Term A-1 Loans pursuant to Section 10.2(a); provided that, if any of the Permitted  Convertible Indebtedness remains outstanding on the Springing Maturity Date, then the Term A-1 Loan  Maturity Date shall occur on the Springing Maturity Date.  “Term A-1 Loan Note” means a promissory note made by the Borrower in favor of a Term A-1  Loan Lender evidencing the portion of the Term A-1 Loans made by such Term A-1 Loan Lender,  substantially in the form attached as Exhibit A-3, and any substitutes therefor, and any replacements,  restatements, renewals or extension thereof, in whole or in part.  “Term A-1 Loan Percentage” means, with respect to any Term A-1 Loan Lender at any time, the  percentage of the total outstanding principal balance of the Term A-1 Loans represented by the  outstanding principal balance of such Term A-1 Loan Lender’s Term A-1 Loans.  The Term A-1 Loan  Percentage of each Term A-1 Loan Lender as of the Closing Date is set forth opposite the name of such  Lender on Schedule 1.1.  “Term A-1 Loans” means the term loan made, or to be made, to the Borrower by the Term A-1  Loan Lenders pursuant to Section 4.1(a).    “Term A-2 Loan Commitment” means (a) as to any Term A-2 Loan Lender, the obligation of  such Term A-2 Loan Lender to make a portion of the Term A-2 Loan, to the account of the Borrower  hereunder on the Closing Date in an aggregate principal amount not to exceed the amount set forth  opposite such Lender’s name on Schedule 1.1, as such amount may be increased, reduced or otherwise  modified at any time or from time to time pursuant to the terms hereof and (b) as to all Term A-2 Loan  Lenders, the aggregate commitment of all Term A-2 Loan Lenders to make such Term A-2 Loans.  The  aggregate Term A-2 Loan Commitment with respect to the Term A-2 Loans of all Term A-2 Loan  Lenders on the Closing Date shall be $300,000,000.  The Term A-2 Loan Commitment of each Term A-2  Loan Lender as of the Closing Date is set forth opposite the name of such Term A-2 Loan Lender on  Schedule 1.1.  





 






    37  142746705_6  “Term A-2 Loan Facility” means the term loan facility established with respect to the Term A-2  Loans pursuant to Article IV.  “Term A-2 Loan Lender” means any Lender with a Term A-2 Loan Commitment and/or  outstanding Term A-2 Loans.  “Term A-2 Loan Maturity Date” means the first to occur of (a) April 21, 2024, and (b) the date of  acceleration of the Term A-2 Loans pursuant to Section 10.2(a); provided that, if any of the Permitted  Convertible Indebtedness remains outstanding on the Springing Maturity Date, then the Term A-2 Loan  Maturity Date shall occur on the Springing Maturity Date.  “Term A-2 Loan Note” means a promissory note made by the Borrower in favor of a Term A-2  Loan Lender evidencing the portion of the Term A-2 Loans made by such Term A-2 Loan Lender,  substantially in the form attached as Exhibit A-4, and any substitutes therefor, and any replacements,  restatements, renewals or extension thereof, in whole or in part.  “Term A-2 Loan Percentage” means, with respect to any Term A-2 Loan Lender at any time, the  percentage of the total outstanding principal balance of the Term A-2 Loans represented by the  outstanding principal balance of such Term A-2 Loan Lender’s Term A-2 Loans.  The Term A-2 Loan  Percentage of each Term A-2 Loan Lender as of the Closing Date is set forth opposite the name of such  Lender on Schedule 1.1.  “Term A-2 Loans” means the term loan made, or to be made, to the Borrower by the Term A-2  Loan Lenders pursuant to Section 4.1(b).    “Term Loan Commitment” means a Term A-1 Loan Commitment, a Term A-2 Loan  Commitment or an Incremental Term Loan Commitment, as applicable, and all such Term Loan  Commitments collectively as the context requires.  “Term Loan Facility” means the Term A-1 Loan Facility, the Term A-2 Loan Facility and, if  applicable, any Incremental Term Loan Facility, and all such Term Loan Facilities collectively as the  context requires.  “Term Loan Lender” means any Term A-1 Loan Lender, any Term A-2 Loan Lender and any  Incremental Term Loan Lender, and all such Term Loan Lenders collectively as the context requires.  “Term Loan Note” means any Term A-1 Loan Note, any Term A-2 Loan Note and any  Incremental Term Loan Note, and all such Term Loan Notes collectively as the context requires.  “Term Loans” means the Term A-1 Loans, the Term A-2 Loans and, if applicable, any  Incremental Term Loans and “Term Loan” means any of such Term Loans.  “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  





 






    38  142746705_6  of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition  Event 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 5.8(c) with a Benchmark Replacement the Unadjusted Benchmark Replacement component of  which is not Term SOFR.  “Termination Event” means the occurrence of any of the following which, individually or in the  aggregate, has resulted or could reasonably be expected to result in liability of the Borrower in an  aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043  of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) the  withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan 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, or (c) the termination of a Pension Plan,  the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment  as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan  liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect  to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute grounds  under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any  Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of  ERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk  plan or plan in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Code  or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Credit Party or any  ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (i) any  event or condition which results in the reorganization or insolvency of a Multiemployer Plan under  Sections 4241 or 4245 of ERISA, or (j) any event or condition which results in the termination of a  Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to  terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) 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 Credit Party or any ERISA Affiliate.  “Threshold Amount” means $75,000,000.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments,  Revolving Credit Exposure and outstanding Term Loans of such Lender at such time.  “Trade Date” has the meaning assigned thereto in Section 12.9(h)(i).  “Transaction Costs” means all non-recurring transaction fees, charges and other amounts related  to (i) the Transactions, (ii) any Permitted Acquisitions and (iii) any offerings of Equity Interests,  Investments, Asset Dispositions, Restricted Payments, recapitalizations or incurrence of Indebtedness, in  each case permitted hereunder (including, without limitation, any financing fees, merger and acquisition  fees, legal fees and expenses, due diligence fees or any other fees and expenses in connection therewith),  in each case to the extent paid within twelve (12) months of the closing of the Credit Facility or such  other transaction, as applicable, and approved by the Administrative Agent in its reasonable discretion.   The term “Transaction Costs” shall also include transactions of the type described in clauses (ii) and (iii)  above that are not consummated.  “Transactions” means, collectively, (a) the consummation of the NIC Acquisition, (b) the  repayment in full of all Indebtedness outstanding under the Existing Credit Agreement, (c) the entering  into of this Agreement and the other Loan Documents and the incurrence on the Closing Date of the  Necessary Closing Funds, (d) the entering into of the Permitted Convertible Indebtedness and the  





 






    39  142746705_6  incurrence on or prior to the Closing Date of Indebtedness thereunder, and (e) the payment of the  Transaction Costs incurred in connection with the foregoing and the other transactions contemplated  thereby.  “UCC” means the Uniform Commercial Code as in effect in the State of New York.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  credit institutions and investment firms, and certain affiliates of such credit institutions or investment  firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding  the related Benchmark Replacement Adjustment.  “United States” means the United States of America.  “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 Code.  “U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).  “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the  number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount  of each then remaining installment, sinking fund, serial maturity or other required payments of principal,  including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the  nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then  outstanding principal amount of such Indebtedness, in each case of clauses (a) and (b), without giving  effect to the application of any prior prepayment to such installment, sinking fund, serial maturity or other  required payment of principal.  “Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.  “Wholly-Owned” means, with respect to a Subsidiary, that all of the Equity Interests of such  Subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or one or more of its  Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares required by  Applicable Law to be owned by a Person other than the Borrower and/or one or more of its Wholly- Owned Subsidiaries).   “Withholding Agent” means any Credit Party and the Administrative Agent.  “Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the  Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers  are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any  





 






    40  142746705_6  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 Other Definitions and Provisions.  With reference to this Agreement and  each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the  definitions of terms herein shall apply equally to the singular and plural forms of the terms defined,  (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine  and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by  the phrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and  effect as the word “shall”, (e) any reference herein to any Person shall be construed to include such  Person’s successors and assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar  import, shall be construed to refer to this Agreement in its entirety and not to any particular provision  hereof, (g) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to  Articles and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and  “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and  intangible assets and properties, including cash, securities, accounts and contract rights, (i) the term  “documents” includes any and all instruments, documents, agreements, certificates, notices, reports,  financial statements and other writings, however evidenced, whether in physical or electronic form and  (j) in the computation of periods of time from a specified date to a later specified date, the word “from”  means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word  “through” means “to and including”.  SECTION 1.3 Accounting Terms.  (a) All accounting terms not specifically or completely defined herein shall be construed in  conformity with, and all financial data (including financial ratios and other financial calculations)  required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied  on a consistent basis, as in effect from time to time and in a manner consistent with that used in preparing  the audited financial statements required by Section 8.1(a), except as otherwise specifically prescribed  herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant  (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and  its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and  the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  (b) If at any time any change in GAAP would affect the computation of any financial ratio or  requirement set forth in any Loan Document, and either the Borrower or the Required 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 Required Lenders); provided that, until so amended, (i) such ratio or requirement  shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the  Borrower 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; provided, further that (A) all obligations of any Person that are or would have  been treated as operating leases for purposes of GAAP prior to the effectiveness of FASB ASC 842 shall  continue to be accounted for as operating leases for purposes of all financial definitions and calculations  for purpose of this Agreement (whether or not such operating lease obligations were in effect on such  





 






    41  142746705_6  date) notwithstanding the fact that such obligations are required in accordance with FASB ASC 842 (on a  prospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financial  statements and (B) all financial statements delivered to the Administrative Agent hereunder shall contain  a schedule showing the modifications necessary to reconcile the adjustments made pursuant to clause (A)  above with such financial statements.  SECTION 1.4 UCC Terms.  Terms defined in the UCC in effect on the Closing Date and  not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by  those definitions.  Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the  UCC then in effect.  SECTION 1.5 Rounding.  Any financial ratios required to be maintained 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 or percentage 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 1.6 References to Agreement and Laws.  Unless otherwise expressly provided  herein, (a) any definition or reference to formation documents, governing documents, agreements  (including the Loan Documents) and other contractual documents or instruments shall be deemed to  include all subsequent amendments, restatements, extensions, supplements and other modifications  thereto, but only to the extent that such amendments, restatements, extensions, supplements and other  modifications are not prohibited by any Loan Document; and (b) any definition or reference to any  Applicable Law, including, without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws, the  Bankruptcy Code, the Code, the Commodity Exchange Act, ERISA, the Exchange Act, the PATRIOT  Act, the Securities Act of 1933, the UCC, the Investment Company Act of 1940, the Interstate Commerce  Act, the Trading with the Enemy Act of the United States or any of the foreign assets control regulations  of the United States Treasury Department, shall include all statutory and regulatory provisions  consolidating, amending, replacing, supplementing or interpreting such Applicable Law.  SECTION 1.7 Times of Day.  Unless otherwise specified, all references herein to times of  day shall be references to Eastern time (daylight or standard, as applicable).  SECTION 1.8 Letter of Credit Amounts.  Unless otherwise specified, all references herein  to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of  such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or  the Letter of Credit Application therefor (at the time specified therefor in such applicable Letter of Credit  or Letter of Credit Application and as such amount may be reduced by (a) any permanent reduction of  such Letter of Credit or (b) any amount which is drawn, reimbursed and no longer available under such  Letter of Credit).  SECTION 1.9 Guarantees/Earn-outs.  Unless otherwise specified, (a) the amount of any  Guarantee shall be the lesser of the principal amount of the obligations guaranteed and still outstanding  and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the  instrument embodying such Guarantee and (b) the amount of any earn-out or similar obligation shall be  the amount of such obligation as reflected on the balance sheet of such Person in accordance with GAAP.  SECTION 1.10 Covenant Compliance Generally.  For purposes of determining compliance  under Sections 9.1, 9.2, 9.3, 9.5 and 9.6, any amount in a currency other than Dollars will be converted to  Dollars in a manner consistent with that used in calculating Consolidated Net Income in the most recent  annual financial statements of the Borrower and its Subsidiaries delivered pursuant to Section 8.1(a).   





 






    42  142746705_6  Notwithstanding the foregoing, for purposes of determining compliance with Sections 9.1, 9.2 and 9.3,  with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no breach of  any basket contained in such sections shall be deemed to have occurred solely as a result of changes in  rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that for  the avoidance of doubt, the foregoing provisions of this Section 1.10 shall otherwise apply to such  Sections, including with respect to determining whether any Indebtedness or Investment may be incurred  at any time under such Sections.  SECTION 1.11 Limited Condition Acquisitions.  In the event that the Borrower notifies the  Administrative Agent in writing that any proposed Acquisition is a Limited Condition Acquisition and  that the Borrower wishes to test the conditions to such Acquisition and the Indebtedness that is to be used  to finance such Acquisition in accordance with this Section 1.11, then, so long as agreed to by the  Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:  (a) any condition to such Limited Condition Acquisition or such Indebtedness that requires  that no Default or Event of Default shall have occurred and be continuing at the time of such Limited  Condition Acquisition or the incurrence of such Indebtedness, shall be satisfied if (i) no Default or Event  of Default shall have occurred and be continuing at the time of the execution of the definitive purchase  agreement, merger agreement or other acquisition agreement governing such Limited Condition  Acquisition (the “LCA Test Date”) and (ii) no Event of Default under any of Sections 10.1(a), 10.1(b),  10.1(h) or 10.1(i) shall have occurred and be continuing both before and after giving effect to such  Limited Condition Acquisition and any Indebtedness incurred in connection therewith (including such  additional Indebtedness);  (b) any condition to such Limited Condition Acquisition or such Indebtedness that the  representations and warranties in this Agreement and the other Loan Documents shall be true and correct  at the time of consummation of such Limited Condition Acquisition or the incurrence of such  Indebtedness shall be deemed satisfied if (i) all representations and warranties in this Agreement and the  other Loan Documents are true and correct in all material respects (except for any representation and  warranty that is qualified by materiality or reference to Material Adverse Effect, which such  representation and warranty shall be true and correct in all respects) as of the LCA Test Date, or if such  representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation  of such Limited Condition Acquisition, (A) the representations and warranties under the relevant  definitive agreement governing such Limited Condition Acquisition as are material to the lenders  providing such Indebtedness shall be true and correct, but only to the extent that the Borrower or its  applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline  to close such Limited Condition Acquisition as a result of a breach of such representations and warranties  or the failure of those representations and warranties to be true and correct and (B) certain of the  representations and warranties in this Agreement and the other Loan Documents which are customary for  similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true  and correct in all material respects (except for any representation and warranty that is qualified by  materiality or reference to Material Adverse Effect, which such representation and warranty shall be true  and correct in all respects);   (c) any financial ratio test or condition to be tested in connection with such Limited  Condition Acquisition and the availability of such Indebtedness will be tested as of the LCA Test Date, in  each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of  Indebtedness, on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and  baskets shall not be tested at the time of consummation of such Limited Condition Acquisition and (ii) if  any of such ratios are exceeded or conditions are not met following the LCA Test Date, but prior to the  closing of such Limited Condition Acquisition, as a result of fluctuations in such ratio or amount  





 






    43  142746705_6  (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such  Limited Condition Acquisition), at or prior to the consummation of the relevant transaction or action,  such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a  result of such fluctuations solely for purposes of determining whether the relevant transaction or action is  permitted to be consummated or taken; and  (d) except as provided in the next sentence, in connection with any subsequent calculation of  any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of the date on  which such Limited Condition Acquisition is consummated and the date that the definitive agreement for  such Limited Condition Acquisition is terminated or expires without consummation of such Limited  Condition Acquisition, any such ratio or basket shall be calculated (i) on a Pro Forma Basis assuming  such Limited Condition Acquisition and other transactions in connection therewith (including the  incurrence or assumption of Indebtedness) have been consummated and (ii) assuming such Limited  Condition Acquisition and other transactions in connection therewith (including the incurrence or  assumption of Indebtedness) have not been consummated; provided that, notwithstanding the foregoing,  any calculation of a ratio in connection with determining the Applicable Margin and determining whether  or not the Borrower is in compliance with the financial covenants set forth in Section 9.13 shall, in each  case be calculated assuming such Limited Condition Acquisition and other transactions in connection  therewith (including the incurrence or assumption of Indebtedness) have not been consummated.  The foregoing provisions shall apply with similar effect during the pendency of multiple Limited  Condition Acquisitions such that each of the possible scenarios is separately tested.  Notwithstanding  anything to the contrary herein, in no event shall there be more than two Limited Condition Acquisitions  at any time outstanding.    SECTION 1.12 Rates; LIBOR Notification.  The interest rate on LIBOR Rate 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 Rate Loans or Base Rate Loans (when determined by reference to clause (c) of  the definition of Base Rate). There is no assurance that the dates set forth in the Announcements will not  change or that 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 5.8(c), such Section 5.8(c) provides a mechanism for determining an alternative rate of interest.  The Administrative Agent will notify the Borrower, pursuant to Section 5.8(c), of any change to the  reference rate upon which the interest rate on LIBOR Rate Loans and Base Rate Loans (when determined  by reference to clause (c) of the definition of Base Rate) is based.  However, the Administrative Agent  does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the  administration of, submission of, calculation of or any other matter related to the London interbank  





 






    44  142746705_6  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 5.8(c), 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 1.13 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    REVOLVING CREDIT FACILITY  SECTION 2.1 Revolving Credit Loans.  Subject to the terms and conditions of this  Agreement and the other Loan Documents, and in reliance upon the representations and warranties set  forth in this Agreement and the other Loan Documents, each Revolving Credit Lender severally agrees to  make Revolving Credit Loans to the Borrower from time to time from the Closing Date to, but not  including, the Revolving Credit Maturity Date as requested by the Borrower in accordance with the terms  of Section 2.3; provided, that (a) the only Revolving Credit Loans made on the Closing Date shall be the  Closing Date Revolving Credit Loans, (b) after the Closing Date, the Revolving Credit Outstandings shall  not exceed the Revolving Credit Commitment and (c) the Revolving Credit Exposure of any Revolving  Credit Lender shall not at any time exceed such Revolving Credit Lender’s Revolving Credit  Commitment.  Each Revolving Credit Loan by a Revolving Credit Lender shall be in a principal amount  equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the aggregate  principal amount of Revolving Credit Loans requested on such occasion.  Subject to the terms and  conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until  the Revolving Credit Maturity Date.  SECTION 2.2 Swingline Loans.  (a) Availability.  Subject to the terms and conditions of this Agreement and the other Loan  Documents, including, without limitation, Section 6.2(d) of this Agreement, and in reliance upon the  representations and warranties set forth in this Agreement and the other Loan Documents, the Swingline  Lender may, in its sole discretion, make Swingline Loans to the Borrower from time to time from the  Closing Date to, but not including, the Revolving Credit Maturity Date; provided, that (i) after giving  effect to any amount requested, the Revolving Credit Outstandings shall not exceed the Revolving Credit  Commitment and (ii) the aggregate principal amount of all outstanding Swingline Loans (after giving  effect to any amount requested) shall not exceed the Swingline Commitment.    (b) Refunding.  (i) The Swingline Lender, at any time and from time to time in its sole and absolute  discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline  





 






    45  142746705_6  Lender to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day  request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees  to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Revolving  Credit Lender’s Revolving Credit Commitment Percentage of the aggregate amount of the  Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender.  Each  Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the  Administrative Agent in immediately available funds at the Administrative Agent’s Office not  later than 1:00 p.m. on the day specified in such notice.  The proceeds of such Revolving Credit  Loans shall be immediately made available by the Administrative Agent to the Swingline Lender  for application by the Swingline Lender to the repayment of the Swingline Loans.  No Revolving  Credit Lender’s obligation to fund its respective Revolving Credit Commitment Percentage of a  Swingline Loan shall be affected by any other Revolving Credit Lender’s failure to fund its  Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving Credit  Lender’s Revolving Credit Commitment Percentage be increased as a result of any such failure of  any other Revolving Credit Lender to fund its Revolving Credit Commitment Percentage of a  Swingline Loan.  (ii) The Borrower shall pay to the Swingline Lender on demand in immediately  available funds the amount of such Swingline Loans to the extent amounts received from the  Revolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans  requested or required to be refunded.  In addition, the Borrower irrevocably authorizes the  Administrative Agent to charge any account maintained by the Borrower with the Swingline  Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the  amount of such Swingline Loans to the extent amounts received from the Revolving Credit  Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required  to be refunded.  If any portion of any such amount paid to the Swingline Lender shall be  recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise,  the loss of the amount so recovered shall be ratably shared among all the Revolving Credit  Lenders in accordance with their respective Revolving Credit Commitment Percentages.  (iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving  Credit Loan pursuant to Section 2.2(b)(i), each Revolving Credit Lender shall, on the date such  Revolving Credit Loan was to have been made pursuant to the notice referred to in Section  2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline  Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”)  equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the  aggregate principal amount of Swingline Loans then outstanding.  Each Revolving Credit Lender  will immediately transfer to the Swingline Lender, in immediately available funds, the amount of  its Swingline Participation Amount.  Whenever, at any time after the Swingline Lender has  received from any Revolving Credit Lender such Revolving Credit Lender’s Swingline  Participation Amount, the Swingline Lender receives any payment on account of the Swingline  Loans, the Swingline Lender will distribute to such Revolving Credit Lender its Swingline  Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the  period of time during which such Lender’s participating interest was outstanding and funded and,  in the case of principal and interest payments, to reflect such Revolving Credit Lender’s pro rata  portion of such payment if such payment is not sufficient to pay the principal of and interest on  all Swingline Loans then due); provided that in the event that such payment received by the  Swingline Lender is required to be returned, such Revolving Credit Lender will return to the  Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.  





 






    46  142746705_6  (iv) Each Revolving Credit Lender’s obligation to make the Revolving Credit Loans  referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section  2.2(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance,  including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving  Credit Lender or the Borrower may have against the Swingline Lender, the Borrower or any other  Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of  Default or the failure to satisfy any of the other conditions specified in Article VI, (C) any  adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this  Agreement or any other Loan Document by the Borrower, any other Credit Party or any other  Revolving Credit Lender or (E) any other circumstance, happening or event whatsoever, whether  or not similar to any of the foregoing.  (v) If any Revolving Credit Lender fails to make available to the Administrative  Agent for the account of the Swingline Lender any amount required to be paid by such Revolving  Credit Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in  Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover  from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such  amount with interest thereon for the period from the date such payment is required to the date on  which such payment is immediately available to the Swingline Lender at a rate per annum equal  to the applicable Federal Funds Rate, plus any administrative, processing or similar fees  customarily charged by the Swingline Lender in connection with the foregoing.  If such  Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so  paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan or Swingline  Participation Amount, as the case may be.  A certificate of the Swingline Lender submitted to any  Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing  under this clause (v) shall be conclusive absent manifest error.  (c) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this  Agreement, this Section 2.2 shall be subject to the terms and conditions of Section 5.13 and Section 5.14.  SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.  (a) Requests for Borrowing.  The Borrower shall give the Administrative Agent irrevocable  prior written notice substantially in the form of Exhibit B (a “Notice of Borrowing”) (which may be  delivered through the Administrative Agent’s electronic platform or portal) not later than 11:00 a.m.  (i) on the same Business Day as each Swingline Loan, (ii) at least one (1) Business Day before each Base  Rate Loan and (iii) at least three (3) Business Days before each LIBOR Rate Loan, of its intention to  borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount of  such borrowing, which shall be, (x) with respect to Base Rate Loans (other than Swingline Loans) in an  aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof, (y) with  respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole multiple of  $1,000,000 in excess thereof and (z) with respect to Swingline Loans in an aggregate principal amount of  $500,000 or a whole multiple of $100,000 (or, in each case, the remaining amount of the Revolving  Credit Commitment or the Swingline Commitment, as applicable) in excess thereof, (C) whether such  Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan  whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate  Loan, the duration of the Interest Period applicable thereto; provided that if the Borrower wishes to  request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be  received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the  requested date of such borrowing, whereupon the Administrative Agent shall give prompt notice to the  Revolving Credit Lenders of such request and determine whether the requested Interest Period is  





 






    47  142746705_6  acceptable to all of them.  If the Borrower fails to specify a type of Loan in a Notice of Borrowing, then  the applicable Loans shall be made as Base Rate Loans.  If the Borrower requests a borrowing of LIBOR  Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to  have specified an Interest Period of one month.  A Notice of Borrowing received after 11:00 a.m. shall be  deemed received on the next Business Day.  The Administrative Agent shall promptly notify the  Revolving Credit Lenders of each Notice of Borrowing.  All borrowing requests that are not made on-line  via the Administrative Agent’s electronic platform or portal shall be subject to (and unless the  Administrative Agent elects otherwise, in its sole discretion, such borrowings shall not be made until the  completion of) the Administrative Agent’s authentication process (with results satisfactory to the  Administrative Agent) prior to the funding of any such requested Revolving Credit Loan or Swingline  Loan, as applicable.   (b) Disbursement of Revolving Credit and Swingline Loans.  Not later than 1:00 p.m. on the  proposed borrowing date, (i) each Revolving Credit Lender will make available to the Administrative  Agent, for the account of the Borrower, at the Administrative Agent’s Office in funds immediately  available to the Administrative Agent, such Revolving Credit Lender’s Revolving Credit Commitment  Percentage of the Revolving Credit Loans to be made on such borrowing date and (ii) the Swingline  Lender will make available to the Administrative Agent, for the account of the Borrower, at the  Administrative Agent’s Office in funds immediately available to the Administrative Agent, the Swingline  Loans to be made on such borrowing date.  The Borrower hereby irrevocably authorizes the  Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section in  immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower  identified in the most recent notice substantially in the form attached as Exhibit C (a “Notice of Account  Designation”) delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon  by the Borrower and the Administrative Agent from time to time.  Subject to Section 5.7 hereof, the  Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving  Credit Loan requested pursuant to this Section to the extent that any Revolving Credit Lender has not  made available to the Administrative Agent its Revolving Credit Commitment Percentage of such Loan.   Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the  Revolving Credit Lenders as provided in Section 2.2(b).  SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans.  (a) Repayment on Termination Date.  The Borrower hereby agrees to repay the outstanding  principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit Maturity Date, and  (ii) all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than the earlier to  occur of (A) the date five Business Days after such Swingline Loan is made and (B) the Revolving Credit  Maturity Date), together, in each case, with all accrued but unpaid interest thereon.  (b) Mandatory Prepayments.  If at any time the Revolving Credit Outstandings exceed the  Revolving Credit Commitment, the Borrower agrees to repay immediately upon notice from the  Administrative Agent, by payment to the Administrative Agent for the account of the Revolving Credit  Lenders, Extensions of Credit in an amount equal to such excess with each such repayment applied first,  to the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding  Revolving Credit Loans and third, with respect to any Letters of Credit then outstanding, a payment of  Cash Collateral into a Cash Collateral account opened by the Administrative Agent, for the benefit of the  Revolving Credit Lenders, in an amount equal to such excess (such Cash Collateral to be applied in  accordance with Section 10.2(b)).  (c) Optional Prepayments.  The Borrower may at any time and from time to time prepay  Revolving Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior written notice to  





 






    48  142746705_6  the Administrative Agent substantially in the form attached as Exhibit D (a “Notice of Prepayment”)  given not later than 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and each Swingline  Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, specifying the date and  amount of prepayment and whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline  Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each.  Upon  receipt of such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender.  If  any such notice is given, the amount specified in such notice shall be due and payable on the date set forth  in such notice.  Partial prepayments shall be in an aggregate amount of $3,000,000 or a whole multiple of  $1,000,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans), $5,000,000  or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans and $500,000 or a  whole multiple of $100,000 in excess thereof with respect to Swingline Loans.  A Notice of Prepayment  received after 11:00 a.m. shall be deemed received on the next Business Day.  Each such repayment shall  be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.  Notwithstanding the  foregoing, any Notice of Prepayment delivered in connection with any refinancing of all of the Credit  Facility with the proceeds of such refinancing or of any incurrence of Indebtedness or the occurrence of  some other identifiable event or condition, may be, if expressly so stated to be, contingent upon the  consummation of such refinancing or incurrence or occurrence of such other identifiable event or  condition and may be revoked by the Borrower in the event such contingency is not met (provided that  the failure of such contingency shall not relieve the Borrower from its obligations in respect thereof under  Section 5.9).  (d) Limitation on Prepayment of LIBOR Rate Loans.  The Borrower may not prepay any  LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless  such prepayment is accompanied by any amount required to be paid pursuant to Section 5.9 hereof.  (e) Hedge Agreements.  No repayment or prepayment of the Loans pursuant to this Section  shall affect any of the Borrower’s obligations under any Hedge Agreement entered into with respect to the  Loans.  (f) Prepayment of Excess Proceeds.  In the event proceeds remain after any mandatory  prepayments of the Term Loan Facility pursuant to Section 4.4(b), the amount of such excess proceeds  shall be used on the date of the required prepayment under Section 4.4(b) to prepay the outstanding  principal amount of the Revolving Credit Loans, without a corresponding reduction of the Revolving  Credit Commitment, with remaining proceeds, if any, refunded to the Borrower.  SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment.  (a) Voluntary Reduction.  The Borrower shall have the right at any time and from time to  time, upon at least five (5) Business Days prior irrevocable written notice to the Administrative Agent, to  permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitment at any time  or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregate principal amount  not less than $3,000,000 or any whole multiple of $1,000,000 in excess thereof.  Any reduction of the  Revolving Credit Commitment shall be applied to the Revolving Credit Commitment of each Revolving  Credit Lender according to its Revolving Credit Commitment Percentage.  All Commitment Fees accrued  until the effective date of any termination of the Revolving Credit Commitment shall be paid on the  effective date of such termination.  Notwithstanding the foregoing, any notice to reduce the Revolving  Credit Commitment delivered in connection with any refinancing of all of the Credit Facility with the  proceeds of such refinancing or of any incurrence of Indebtedness or the occurrence of some other  identifiable event or condition, may be, if expressly so stated to be, contingent upon the consummation of  such refinancing or incurrence or occurrence such identifiable event or condition and may be revoked by  





 






    49  142746705_6  the Borrower in the event such contingency is not met (provided that the failure of such contingency shall  not relieve the Borrower from its obligations in respect thereof under Section 5.9).  (b) Corresponding Payment.  Each permanent reduction permitted pursuant to this Section  shall be accompanied by a payment of principal sufficient to reduce the aggregate outstanding Revolving  Credit Loans, Swingline Loans and L/C Obligations, as applicable, after such reduction to the Revolving  Credit Commitment as so reduced, and if the aggregate amount of all outstanding Letters of Credit  exceeds the Revolving Credit Commitment as so reduced, the Borrower shall be required to deposit Cash  Collateral in a Cash Collateral account opened by the Administrative Agent in an amount equal to such  excess.  Such Cash Collateral shall be applied in accordance with Section 10.2(b).  Any reduction of the  Revolving Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving  Credit Loans and Swingline Loans (and furnishing of Cash Collateral satisfactory to the Administrative  Agent for all L/C Obligations or other arrangements satisfactory to the Issuing Lender) and shall result in  the termination of the Revolving Credit Commitment and the Swingline Commitment and the Revolving  Credit Facility.  If the reduction of the Revolving Credit Commitment requires the repayment of any  LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to  Section 5.9 hereof.  SECTION 2.6 Termination of Revolving Credit Facility.  The Revolving Credit Facility and  the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.  ARTICLE III    LETTER OF CREDIT FACILITY  SECTION 3.1 L/C Facility.  (a) Availability.  Subject to the terms and conditions hereof, the Issuing Lender, in reliance  on the agreements of the Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue standby  Letters of Credit in an aggregate amount not to exceed its L/C Commitment for the account of the  Borrower or, subject to Section 3.8, any Subsidiary thereof, Letters of Credit may be issued on any  Business Day from the Closing Date to, but not including the thirtieth (30th) Business Day prior to the  Revolving Credit Maturity Date in such form as may be approved from time to time by the Issuing  Lender; provided, that no Issuing Lender shall issue any Letter of Credit if, after giving effect to such  issuance, (a) the L/C Obligations would exceed the L/C Sublimit or (b) the Revolving Credit  Outstandings would exceed the Revolving Credit Commitment.  Each Letter of Credit shall (i) be  denominated in Dollars in a minimum amount of $100,000 (or such lesser amount as agreed to by the  Issuing Lender and the Administrative Agent), (ii) expire on a date no more than twelve (12) months after  the date of issuance or last renewal of such Letter of Credit (subject to automatic renewal for additional  one (1) year periods pursuant to the terms of the Letter of Credit Application or other documentation  acceptable to the Issuing Lender), which date shall be no later than the fifth (5th) Business Day prior to  the Revolving Credit Maturity Date and (iii) be subject to the ISP98 as set forth in the Letter of Credit  Application or as determined by the Issuing Lender and, to the extent not inconsistent therewith, the laws  of the State of New York.  The Issuing Lender shall not at any time be obligated to issue any Letter of  Credit hereunder if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall  by its terms purport to enjoin or restrain such Issuing Lender from issuing such Letter of Credit, or any  Applicable Law applicable to such Issuing Lender or any request or directive (whether or not having the  force of law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit,  or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter  of Credit in particular or shall impose upon such Issuing Lender with respect to letters of credit generally  or such Letter of Credit in particular any restriction or reserve or capital requirement (for which such  





 






    50  142746705_6  Issuing Lender is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed loss,  cost or expense that was not applicable, in effect as of the Closing Date and that such Issuing Lender in  good faith deems material to it, or (B) the conditions set forth in Section 6.2 are not satisfied.  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.    (b) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this  Agreement, Article III shall be subject to the terms and conditions of Section 5.13 and Section 5.14.  SECTION 3.2 Procedure for Issuance of Letters of Credit.  The Borrower may from time to  time request that the Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its  applicable office (with a copy to the Administrative Agent at the Administrative Agent’s Office) a Letter  of Credit Application therefor, which shall be delivered via facsimile other electronic method of  transmission reasonably acceptable to the Administrative Agent and the Issuing Lender, completed to the  satisfaction of the Administrative Agent and the Issuing Lender, and such other certificates, documents  and other papers and information as the Administrative Agent or the Issuing Lender may request.  Upon  receipt of any Letter of Credit Application, the Issuing Lender shall process such Letter of Credit  Application and the certificates, documents and other papers and information delivered to it in connection  therewith in accordance with its customary procedures (including, without limitation, its authentication  process) and shall, subject to Section 3.1, Article VI and the satisfactory results of the authentication  process of the Issuing Lender, promptly issue the Letter of Credit requested thereby (but in no event shall  such Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days after its  receipt of the Letter of Credit Application therefor and all such other certificates, documents and other  papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary  thereof or as otherwise may be agreed by such Issuing Lender and the Borrower.  The Issuing Lender  shall promptly furnish to the Borrower and the Administrative Agent a copy of such Letter of Credit and  the Administrative Agent shall promptly notify each Revolving Credit Lender of the issuance and upon  request by any Lender, furnish to such Revolving Credit Lender a copy of such Letter of Credit and the  amount of such Revolving Credit Lender’s participation therein.  SECTION 3.3 Commissions and Other Charges.  (a) Letter of Credit Commissions.  Subject to Section 5.14(a)(iii)(B), the Borrower shall pay  to the Administrative Agent, for the account of the Issuing Lender and the L/C Participants, a letter of  credit commission with respect to each Letter of Credit in the amount equal to the daily amount available  to be drawn under such standby Letters of Credit times the Applicable Margin with respect to Revolving  Credit Loans that are LIBOR Rate Loans (determined, in each case, on a per annum basis).  Such  commission shall be payable quarterly in arrears on the last Business Day of each calendar quarter, on the  Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent.  The  Administrative Agent shall, promptly following its receipt thereof, distribute to the Issuing Lender and  the L/C Participants all commissions received pursuant to this Section 3.3 in accordance with their  respective Revolving Credit Commitment Percentages.  (b) Issuance Fee.  In addition to the foregoing commission, the Borrower shall pay directly to  the Issuing Lender, for its own account, an issuance fee with respect to each Letter of Credit issued by  such Issuing Lender as set forth in the Engagement Letter or as otherwise agreed upon between the  Issuing Lender and the Borrower.  Such issuance fee shall be payable quarterly in arrears on the last  Business Day of each calendar quarter commencing with the first such date to occur after the issuance of  such Letter of Credit, on the Revolving Credit Maturity Date and thereafter on demand of the Issuing  Lender.  





 






    51  142746705_6  (c) Other Fees, Costs, Charges and Expenses.  In addition to the foregoing fees and  commissions, the Borrower shall pay or reimburse the Issuing Lender for such normal and customary  fees, costs, charges and expenses as are incurred or charged by such Issuing Lender in issuing, effecting  payment under, amending or otherwise administering any Letter of Credit issued by it.  SECTION 3.4 L/C Participations.  (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,  and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably  agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms  and conditions hereinafter stated, for such L/C Participant’s own account and risk an undivided interest  equal to such L/C Participant’s Revolving Credit Commitment Percentage in the Issuing Lender’s  obligations and rights under and in respect of each Letter of Credit issued by it hereunder and the amount  of each draft paid by such Issuing Lender thereunder.  Each L/C Participant unconditionally and  irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit issued by such  Issuing Lender for which such Issuing Lender is not reimbursed in full by the Borrower through a  Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C Participant  shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified  herein an amount equal to such L/C Participant’s Revolving Credit Commitment Percentage of the  amount of such draft, or any part thereof, which is not so reimbursed.  (b) Upon becoming aware of any amount required to be paid by any L/C Participant to the  Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by  such Issuing Lender under any Letter of Credit, issued by it, such Issuing Lender shall notify the  Administrative Agent of such unreimbursed amount and the Administrative Agent shall notify each L/C  Participant (with a copy to the Issuing Lender) of the amount and due date of such required payment and  such L/C Participant shall pay to the Administrative Agent (which, in turn shall pay such Issuing Lender)  the amount specified on the applicable due date.  If any such amount is paid to such Issuing Lender after  the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand, in  addition to such amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate  as determined by the Administrative Agent during the period from and including the date such payment is  due to the date on which such payment is immediately available to such Issuing Lender, times (iii) a  fraction the numerator of which is the number of days that elapse during such period and the denominator  of which is 360.  A certificate of such Issuing Lender with respect to any amounts owing under this  Section shall be conclusive in the absence of manifest error.  With respect to payment to such Issuing  Lender of the unreimbursed amounts described in this Section, if the L/C Participants receive notice that  any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be due that  Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following  Business Day.  (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of  Credit issued by it and has received from any L/C Participant its Revolving Credit Commitment  Percentage of such payment in accordance with this Section, such Issuing Lender receives any payment  related to such Letter of Credit (whether directly from the Borrower or otherwise), or any payment of  interest on account thereof, such Issuing Lender will distribute to such L/C Participant its pro rata share  thereof; provided, that in the event that any such payment received by such Issuing Lender shall be  required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender  the portion thereof previously distributed by such Issuing Lender to it.  (d) Each L/C Participant’s obligation to make the Revolving Credit Loans referred to in  Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(a) shall be absolute and  





 






    52  142746705_6  unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim,  recoupment, defense or other right that such Revolving Credit Lender or the Borrower may have against  the Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or  continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions  specified in Article VI, (iii) any adverse change in the condition (financial or otherwise) of the Borrower,  (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Credit Party  or any other Revolving Credit Lender or (v) any other circumstance, happening or event whatsoever,  whether or not similar to any of the foregoing.  SECTION 3.5 Reimbursement Obligation of the Borrower.  In the event of any drawing  under any Letter of Credit, the Borrower agrees to reimburse (either with the proceeds of a Revolving  Credit Loan as provided for in this Section or with funds from other sources), in same day funds, the  Issuing Lender on each date on which such Issuing Lender notifies the Borrower of the date and amount  of a draft paid by it under any Letter of Credit for the amount of (a) such draft so paid and (b) any  amounts referred to in Section 3.3(c) incurred by such Issuing Lender in connection with such payment.   Unless the Borrower shall immediately notify such Issuing Lender that the Borrower intends to reimburse  such Issuing Lender for such drawing from other sources or funds, the Borrower shall be deemed to have  timely given a Notice of Borrowing to the Administrative Agent requesting that the Revolving Credit  Lenders make a Revolving Credit Loan as a Base Rate Loan on the applicable repayment date in the  amount of (i) such draft so paid and (ii) any amounts referred to in Section 3.3(c) incurred by such Issuing  Lender in connection with such payment, and the Revolving Credit Lenders shall make a Revolving  Credit Loan as a Base Rate Loan in such amount, the proceeds of which shall be applied to reimburse  such Issuing Lender for the amount of the related drawing and such fees and expenses.  Each Revolving  Credit Lender acknowledges and agrees that its obligation to fund a Revolving Credit Loan in accordance  with this Section to reimburse such Issuing Lender for any draft paid under a Letter of Credit issued by it  is absolute and unconditional and shall not be affected by any circumstance whatsoever, including,  without limitation, non-satisfaction of the conditions set forth in Section 2.3(a) or Article VI.  If the  Borrower has elected to pay the amount of such drawing with funds from other sources and shall fail to  reimburse such Issuing Lender as provided above, or if the amount of such drawing is not fully refunded  through a Base Rate Loan as provided above, the unreimbursed amount of such drawing shall bear  interest at the rate which would be payable on any outstanding Base Rate Loans which were then overdue  from the date such amounts become payable (whether at stated maturity, by acceleration or otherwise)  until payment in full.  SECTION 3.6 Obligations Absolute.  The Borrower’s obligations under this Article III  (including, without limitation, the Reimbursement Obligation) shall be absolute and unconditional under  any and all circumstances and irrespective of any set off, counterclaim or defense to payment which the  Borrower may have or have had against the Issuing Lender or any beneficiary of a Letter of Credit or any  other Person.  The Borrower also agrees that the Issuing Lender and the L/C Participants shall not be  responsible for, and the Borrower’s Reimbursement Obligation under Section 3.5 shall not be affected by,  among other things, the validity or genuineness of documents or of any endorsements thereon, even  though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or  among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter  of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such  Letter of Credit or any such transferee.  No Issuing Lender shall be liable for any error, omission,  interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted,  in connection with any Letter of Credit issued by it, except for errors or omissions caused by such Issuing  Lender’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction by  final nonappealable judgment.  The Borrower agrees that any action taken or omitted by the Issuing  Lender under or in connection with any Letter of Credit issued by it or the related drafts or documents, if  done in the absence of gross negligence or willful misconduct shall be binding on the Borrower and shall  





 






    53  142746705_6  not result in any liability of such Issuing Lender or any L/C Participant to the Borrower.  The  responsibility of the Issuing Lender to the Borrower in connection with any draft presented for payment  under any Letter of Credit issued to it shall, in addition to any payment obligation expressly provided for  in such Letter of Credit, be limited to determining that the documents (including each draft) delivered  under such Letter of Credit in connection with such presentment substantially conforms to the  requirements under such Letter of Credit.  SECTION 3.7 Effect of Letter of Credit Application.  To the extent that any provision of  any Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of this  Article III, the provisions of this Article III shall apply.  SECTION 3.8 Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of  Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse, or to cause the applicable Subsidiary to  reimburse, the Issuing Lender hereunder for any and all drawings under such Letter of Credit.  The  Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any of its  Subsidiaries inures to the benefit of the Borrower and that the Borrower’s business derives substantial  benefits from the businesses of such Subsidiaries.  ARTICLE IV    TERM LOAN FACILITY  SECTION 4.1 Term Loans.  Subject to the terms and conditions of this Agreement and the  other Loan Documents, and in reliance upon the representations and warranties set forth in this  Agreement and the other Loan Documents:  (a) each Term A-1 Loan Lender severally agrees to make a Term A-1 Loan to the Borrower  on the Closing Date in a principal amount equal to such Term A-1 Loan Lender’s Term A-1 Loan  Commitment as of the Closing Date; and  (b) each Term A-2 Loan Lender severally agrees to make a Term A-2 Loan to the Borrower  on the Closing Date in a principal amount equal to such Term A-2 Loan Lender’s Term A-2 Loan  Commitment as of the Closing Date.  SECTION 4.2 Procedure for Advance of Term Loans.  (a) Term A-1 Loan and Term A-2 Loan.  The Borrower shall give the Administrative Agent  an irrevocable Notice of Borrowing prior to 11:00 a.m. on the Closing Date requesting that (i) the Term  A-1 Loan Lenders make the Term A-1 Loan as a Base Rate Loan on such date and (ii) the Term A-2 Loan  Lenders make the Term A-2 Loan as a Base Rate Loan on such date (provided that the Borrower may  request, no later than three (3) Business Days prior to the Closing Date, that the Lenders make the each of  the Term A-1 Loan and the Term A-2 Loan as a LIBOR Rate Loan if the Borrower has delivered to the  Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent  indemnifying the Lenders in the manner set forth in Section 5.9 of this Agreement).  Upon receipt of such  Notice of Borrowing from the Borrower, the Administrative Agent shall promptly notify each Term A-1  Loan Lender and each Term A-2 Loan Lender thereof.  Not later than 1:00 p.m. on the Closing Date, each  Term A-1 Loan Lender and each Term A-2 Loan Lender, as applicable, will make available to the  Administrative Agent for the account of the Borrower, at the Administrative Agent’s Office in  immediately available funds, the amount of such Term A-1 Loan and such Term A-2 Loan, as applicable,  to be made by such Term A-1 Loan Lender and such Term A-2 Loan Lender, as applicable, on the  





 






    54  142746705_6  Closing Date.  The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the  proceeds of the Term A-1 Loan and the Term A-2 Loan in immediately available funds by wire transfer to  such Person or Persons as may be designated by the Borrower in writing.  (b) Incremental Term Loans.  Any Incremental Term Loans shall be borrowed pursuant to,  and in accordance with Section 5.15.  SECTION 4.3 Repayment of Term Loans.  (a) Term A-1 Loan.  The Borrower shall repay the aggregate outstanding principal amount of  the Term A-1 Loan in consecutive quarterly installments on the last Business Day of each of March, June,  September and December commencing September 30, 2021 in a quarterly installment amount equal to  1.25% of the aggregate principal amount of the Term A-1 Loan as of the Closing Date, except as the  amounts of individual installments may be adjusted pursuant to Section 4.4 hereof.  If not sooner paid, the  Term A-1 Loan shall be paid in full, together with accrued interest thereon, on the Term A-1 Loan  Maturity Date.  (b) Term A-2 Loan.  The Borrower shall repay the aggregate outstanding principal amount of  the Term A-2 Loan on the Term A-2 Loan Maturity Date.  (c) Incremental Term Loans.  The Borrower shall repay the aggregate outstanding principal  amount of each Incremental Term Loan (if any) as determined pursuant to, and in accordance with,  Section 5.15.  SECTION 4.4 Prepayments of Term Loans.  (a) Optional Prepayments.  The Borrower shall have the right at any time and from time to  time, without premium or penalty, to prepay the Term Loans, in whole or in part, upon delivery to the  Administrative Agent of a Notice of Prepayment not later than 11:00 a.m. (i) on the same Business Day as  each Base Rate Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, specifying  the date and amount of repayment, whether the repayment is of LIBOR Rate Loans or Base Rate Loans or  a combination thereof, and if a combination thereof, the amount allocable to each and whether the  repayment is of the Term A-1 Loan, the Term A-2 Loan, an Incremental Term Loan or a combination  thereof, and if a combination thereof, the amount allocable to each.  Each optional prepayment of the  Term Loans hereunder shall be in an aggregate principal amount of at least $5,000,000 or any whole  multiple of $1,000,000 in excess thereof (or, if less, the remaining outstanding principal amount thereof)  and shall be applied to prepay the Term A-1 Loan, the Term A-2 Loan and/or, if applicable, any  Incremental Term Loans (each such prepayment to be applied to reduce any scheduled principal  amortizations payments under Section 4.3 as directed by the Borrower).  Each repayment shall be  accompanied by any amount required to be paid pursuant to Section 5.9 hereof.  A Notice of Prepayment  received after 11:00 a.m. shall be deemed received on the next Business Day.  The Administrative Agent  shall promptly notify the applicable Term Loan Lenders of each Notice of Prepayment.  Notwithstanding  the foregoing, any Notice of Prepayment delivered in connection with any refinancing of all of the Credit  Facility with the proceeds of such refinancing or of any other incurrence of Indebtedness or the  occurrence of some other identifiable event or condition, may be, if expressly so stated to be, contingent  upon the consummation of such refinancing or incurrence or occurrence of such other identifiable event  or condition and may be revoked by the Borrower in the event such contingency is not met; provided that  the delay or failure of such contingency shall not relieve the Borrower from its obligations in respect  thereof under Section 5.9.  





 






    55  142746705_6  (b) Mandatory Prepayments.  (i) Debt Issuances.  The Borrower shall make mandatory principal prepayments of  the Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in clause (iv)  below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds  from any Debt Issuance not otherwise permitted pursuant to Section 9.1.  Such prepayment shall  be made within three (3) Business Days after the date of receipt of the Net Cash Proceeds of any  such Debt Issuance.  (ii) Asset Dispositions and Insurance and Condemnation Events.  The Borrower shall  make mandatory principal prepayments of the Loans in the manner set forth in clause (iv) below  in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from (A)  any Asset Disposition (other than any Asset Disposition permitted pursuant to, and in accordance  with, clauses (a) through (f) of Section 9.5) or (B) any Insurance and Condemnation Event, to the  extent that the aggregate amount of such Net Cash Proceeds, in the case of each of clauses (A)  and (B), respectively, exceed $15,000,000 during any Fiscal Year.  Such prepayments shall be  made within three (3) Business Days after the date of receipt of the Net Cash Proceeds; provided  that, so long as no Default or Event of Default has occurred and is continuing, no prepayment  shall be required under this Section 4.4(b)(ii) with respect to such portion of such Net Cash  Proceeds that the Borrower shall have, on or prior to such date given written notice to the  Administrative Agent of its intent to reinvest in accordance with Section 4.4(b)(iii).  (iii) Reinvestment Option.  With respect to any Net Cash Proceeds realized or  received with respect to any Asset Disposition or any Insurance and Condemnation Event by any  Credit Party of any Subsidiary thereof (in each case, to the extent not excluded pursuant to  Section 4.4(b)(ii)), at the option of the Borrower, the Credit Parties may reinvest all or any  portion of such Net Cash Proceeds in assets used or useful for the business of the Credit Parties  and their Subsidiaries within (x) twelve (12) months following receipt of such Net Cash Proceeds  or (y) if such Credit Party enters into a bona fide commitment to reinvest such Net Cash Proceeds  within twelve (12) months following receipt thereof, within the later of (A) twelve (12) months  following receipt thereof and (B) six (6) months of the date of such commitment; provided that if  any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after  delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds  shall be applied within three (3) Business Days after the applicable Credit Party reasonably  determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested to  the prepayment of the Loans as set forth in this Section 4.4(b).  Pending the final application of  any such Net Cash Proceeds, the applicable Credit Party may invest an amount equal to such Net  Cash Proceeds in any manner that is not prohibited by this Agreement.  (iv) Notice; Manner of Payment.  Upon the occurrence of any event triggering the  prepayment requirement under clauses (i) through and including (ii) above, the Borrower shall  promptly deliver notice thereof to the Administrative Agent and upon receipt of such notice, the  Administrative Agent shall promptly so notify the Lenders.  Each prepayment of the Loans under  this Section shall be applied as follows:  first, ratably between the Term A-1 Loans, the Term A-2  Loans and (unless otherwise agreed by the applicable Incremental Lenders) any Incremental  Term Loans, in each case to reduce on a pro rata basis the remaining scheduled principal  installments, if any, of the Term A-1 Loans and the Term A-2 Loans and, as determined by the  Borrower and the applicable Incremental Lenders, any Incremental Term Loans, in each case  pursuant to Section 4.3 and (ii) second, to the extent of any excess, to repay the Revolving Credit  Loans pursuant to Section 2.4(d), without a corresponding reduction in the Revolving Credit  Commitment.  





 






    56  142746705_6  (v) Prepayment of LIBOR Rate Loans.  Each prepayment shall be accompanied by  any amount required to be paid pursuant to Section 5.9; provided that, so long as no Default or  Event of Default shall have occurred and be continuing, if any prepayment of LIBOR Rate Loans  is required to be made under this Section 4.4(b) prior to the last day of the Interest Period  therefor, in lieu of making any payment pursuant to this Section 4.4(b) in respect of any such  LIBOR Rate Loan prior to the last day of the Interest Period therefor, the Borrower may, in its  sole discretion, deposit an amount sufficient to make any such prepayment otherwise required to  be made thereunder together with accrued interest to the last day of such Interest Period into an  account held at, and subject to the sole control of, the Administrative Agent until the last day of  such Interest Period, at which time the Administrative Agent shall be authorized (without any  further action by or notice to or from the Borrower or any other Credit Party) to apply such  amount to the prepayment of such Term Loans in accordance with this Section 4.4(b).  Upon the  occurrence and during the continuance of any Default or Event of Default, the Administrative  Agent shall also be authorized (without any further action by or notice to or from the Borrower or  any other Credit Party) to apply such amount to the prepayment of the outstanding Term Loans in  accordance with the relevant provisions of this Section 4.4(b).  (vi) No Reborrowings.  Amounts prepaid under any Term Loan pursuant to this  Section may not be reborrowed.  ARTICLE V    GENERAL LOAN PROVISIONS  SECTION 5.1 Interest.  (a) Interest Rate Options.  Subject to the provisions of this Section, at the election of the  Borrower, (i) Revolving Credit Loans and Term Loans shall bear interest at (A) the Base Rate plus the  Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin (provided that the LIBOR Rate  shall not be available until three (3) Business Days (or four (4) Business Days with respect to a LIBOR  Rate based on a twelve-month Interest Period) after the Closing Date unless the Borrower has  delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the  Administrative Agent indemnifying the Lenders in the manner set forth in Section 5.9 of this  Agreement) and (ii) any Swingline Loan shall bear interest at the Base Rate plus the Applicable  Margin.  The Borrower shall select the rate of interest and Interest Period, if any, applicable to any  Loan at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is  given pursuant to Section 5.2.  (b) Default Rate.  Subject to Section 10.3, (i) immediately upon the occurrence and during  the continuance of an Event of Default under Section 10.1(a), (b), (h) or (i), or (ii) at the election of the  Required Lenders, upon the occurrence and during the continuance of any other Event of Default,  (A) the Borrower shall no longer have the option to request LIBOR Rate Loans, Swingline Loans or  Letters of Credit, (B) all outstanding LIBOR Rate Loans shall bear interest at a rate per annum of two  percent (2%) in excess of the rate (including the Applicable Margin) then applicable to LIBOR Rate  Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%)  in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans, (C) all  outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan  Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate  (including the Applicable Margin) then applicable to Base Rate Loans or such other Obligations  arising hereunder or under any other Loan Document and (D) all accrued and unpaid interest shall be  due and payable on demand of the Administrative Agent.  Interest shall continue to accrue on the  





 






    57  142746705_6  Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy  or under any Debtor Relief Law.  (c) Interest Payment and Computation.  Interest on each Base Rate Loan shall be due and  payable in arrears on the first Business Day immediately following the end of each calendar quarter  commencing June 30, 2021; and interest on each LIBOR Rate Loan shall be due and payable on the  last day of each Interest Period applicable thereto, and if such Interest Period extends over three (3)  months, at the end of each three (3) month interval during such Interest Period.  All computations of  interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the  basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other  computations of fees and interest provided hereunder shall be made on the basis of a 360-day year and  actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed  on the basis of a 365/366-day year).  (d) Maximum Rate.  In no contingency or event whatsoever shall the aggregate of all  amounts deemed interest under this Agreement charged or collected pursuant to the terms of this  Agreement exceed the highest rate permissible under any Applicable Law which a court of competent  jurisdiction shall, in a final determination, deem applicable hereto.  In the event that such a court  determines that the Lenders have charged or received interest hereunder in excess of the highest  applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate  permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option (i) promptly  refund to the Borrower any interest received by the Lenders in excess of the maximum lawful rate or  (ii) apply such excess to the principal balance of the Obligations.  It is the intent hereof that the  Borrower not pay or contract to pay, and that neither the Administrative Agent nor any Lender receive  or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which  may be paid by the Borrower under Applicable Law.  SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans.  Provided that  no Default or Event of Default has occurred and is then continuing, the Borrower shall have the option to  (a) convert at any time all or any portion of any outstanding Base Rate Loans (other than Swingline  Loans) in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof  into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i) convert all or  any part of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or a whole  multiple of $1,000,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or  (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.  Whenever the Borrower desires to convert  or continue Loans as provided above, the Borrower shall give the Administrative Agent irrevocable prior  written notice in the form attached as Exhibit E (a “Notice of Conversion/Continuation”) not later than  11:00 a.m. three (3) Business Days before the day on which a proposed conversion or continuation of  such Loan is to be effective specifying (A) the Loans to be converted or continued, and, in the case of any  LIBOR Rate Loan to be converted or continued, the last day of the Interest Period therefor, (B) the  effective date of such conversion or continuation (which shall be a Business Day), (C) the principal  amount of such Loans to be converted or continued, and (D) the Interest Period to be applicable to such  converted or continued LIBOR Rate Loan.  If the Borrower fails to give a timely Notice of  Conversion/Continuation prior to the end of the Interest Period for any LIBOR Rate Loan, then the  applicable LIBOR Rate Loan shall be converted to a Base Rate Loan.  Any such automatic conversion to  a Base Rate Loan shall be effective as of the last day of the Interest Period then in effect with respect to  the applicable LIBOR Rate Loan.  If the Borrower requests a conversion to, or continuation of, LIBOR  Rate Loans, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period  of one month.  Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted  to a LIBOR Rate Loan.  The Administrative Agent shall promptly notify the affected Lenders of such  Notice of Conversion/Continuation.  





 






    58  142746705_6  SECTION 5.3 Fees.  (a) Commitment Fee.  Commencing on the Closing Date, subject to Section 5.14(a)(iii)(A),  the Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a  non-refundable commitment fee (the “Commitment Fee”) at a rate per annum equal to the Applicable  Margin on the average daily unused portion of the Revolving Credit Commitment of the Revolving  Credit Lenders (other than the Defaulting Lenders, if any); provided, that the amount of outstanding  Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose  of calculating the Commitment Fee.  The Commitment Fee shall be payable in arrears on the first  Business Day immediately following the end of each calendar quarter during the term of this  Agreement commencing June 30, 2021 and ending on the date upon which all Obligations (other than  contingent indemnification obligations not then due) arising under the Revolving Credit Facility shall  have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been  terminated or expired and the Revolving Credit Commitment has been terminated.  The Commitment  Fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (other than any  Defaulting Lender) pro rata in accordance with such Revolving Credit Lenders’ respective Revolving  Credit Commitment Percentages.  (b) Other Fees.  The Borrower shall pay to (i) Wells Fargo Securities, LLC and the  Administrative Agent, for their own respective accounts, fees in the amounts and at the times specified  in the Engagement Letter and (ii) each Arranger (other than Wells Fargo Securities, LLC),  documentation agent or syndication agent, for their own respective accounts, fees in the amounts and  at the times specified in the Fee Letter to which such Arranger (other than Wells Fargo Securities,  LLC), documentation agent or syndication agent is a party thereto.  SECTION 5.4 Manner of Payment.  Each payment by the Borrower on account of the  principal of or interest on the Loans or of any fee, commission or other amounts (including the  Reimbursement Obligation) payable to the Lenders under this Agreement shall be made not later than  1:00 p.m. on the date specified for payment under this Agreement to the Administrative Agent at the  Administrative Agent’s Office for the account of the Lenders entitled to such payment in Dollars, in  immediately available funds and shall be made without any set off, counterclaim or deduction  whatsoever.  Any payment received after such time but before 2:00 p.m. on such day shall be deemed a  payment on such date for the purposes of Section 10.1, but for all other purposes shall be deemed to have  been made on the next succeeding Business Day.  Any payment received after 2:00 p.m. shall be deemed  to have been made on the next succeeding Business Day for all purposes.  Upon receipt by the  Administrative Agent of each such payment, the Administrative Agent shall distribute to each such  Lender at its address for notices set forth herein its Commitment Percentage in respect of the relevant  Credit Facility (or other applicable share as provided herein) of such payment and shall wire advice of the  amount of such credit to each Lender.  Each payment to the Administrative Agent on account of the  principal of or interest on the Swingline Loans or of any fee, commission or other amounts payable to the  Swingline Lender shall be made in like manner, but for the account of the Swingline Lender.  Each  payment to the Administrative Agent of the Issuing Lender’s fees or L/C Participants’ commissions shall  be made in like manner, but for the account of such Issuing Lender or the L/C Participants, as the case  may be.  Each payment to the Administrative Agent of Administrative Agent’s fees or expenses shall be  made for the account of the Administrative Agent and any amount payable to any Lender under Sections  5.9, 5.10, 5.11 or 12.3 shall be paid to the Administrative Agent for the account of the applicable Lender.   Subject to the definition of Interest Period, if any payment under this Agreement shall be specified to be  made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a  Business Day and such extension of time shall in such case be included in computing any interest if  payable along with such payment.  Notwithstanding the foregoing, if there exists a Defaulting Lender  





 






    59  142746705_6  each payment by the Borrower to such Defaulting Lender hereunder shall be applied in accordance with  Section 5.14(a)(ii).  SECTION 5.5 Evidence of Indebtedness.  (a) Extensions of Credit.  The Extensions of Credit made by each Lender and the Issuing  Lender shall be evidenced by one or more accounts or records maintained by such Lender or such  Issuing Lender and by the Administrative Agent in the ordinary course of business.  The accounts or  records maintained by the Administrative Agent and each Lender or the Issuing Lender shall be  conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders or  such Issuing Lender to the Borrower and its Subsidiaries and the interest and payments thereon.  Any  failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation  of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of  any conflict between the accounts and records maintained by any Lender or the Issuing Lender and the  accounts and records of the Administrative Agent in respect of such matters, the accounts and records  of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any  Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender  (through the Administrative Agent) a Revolving Credit Note and/or Swingline Note and/or Term A-1  Loan Note and/or Term A-2 Loan Note and/or Incremental Term Loan Note, as applicable, which shall  evidence such Lender’s Revolving Credit Loans and/or Swingline Loans and/or Term A-1 Loans  and/or Term A-2 Loans and/or Incremental Term Loans, as applicable, in addition to such accounts or  records.  Each Lender may attach schedules to its Notes and endorse thereon the date, amount and  maturity of its Loans and payments with respect thereto.  (b) Participations.  In addition to the accounts and records referred to in subsection (a), each  Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its usual  practice accounts or records evidencing the purchases and sales by such Revolving Credit Lender of  participations in Letters of Credit and Swingline Loans.  In the event of any conflict between the  accounts and records maintained by the Administrative Agent and the accounts and records of any  Revolving Credit Lender in respect of such matters, the accounts and records of the Administrative  Agent shall control in the absence of manifest error.  SECTION 5.6 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right  of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of  its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of  the aggregate amount of its Loans and accrued interest thereon or other such obligations (other than  pursuant to Sections 5.9, 5.10, 5.11 or 12.3) greater than its pro rata share thereof as provided herein, then  the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and  (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other  Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments  shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and  accrued interest on their respective Loans and other amounts owing them; provided that:  (i) if any such participations are purchased and all or any portion of the payment  giving rise thereto is recovered, such participations shall be rescinded and the purchase price  restored to the extent of such recovery, without interest, and  (ii) the provisions of this paragraph shall not be construed to apply to (A) any  payment made by the Borrower pursuant to and in accordance with the express terms of this  Agreement (including the application of funds arising from the existence of a Defaulting Lender),  (B) the application of Cash Collateral provided for in Section 5.13 or (C) any payment obtained  





 






    60  142746705_6  by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or  participations in Swingline Loans and Letters of Credit to any assignee or participant, other than  to the Borrower or any of its Subsidiaries or Affiliates (as to which the provisions of this  paragraph shall apply).  Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under  Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.  SECTION 5.7 Administrative Agent’s Clawback.  (a) Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative  Agent shall have received notice from a Lender (i) in the case of Base Rate Loans, not later than 12:00  noon on the date of any proposed borrowing and (ii) otherwise, prior to the proposed date of any  borrowing that such Lender will not make available to the Administrative Agent such Lender’s share  of such borrowing, the Administrative Agent may assume that such Lender has made such share  available on such date in accordance with Sections 2.3(b) and may, in reliance upon such assumption,  make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact  made its share of the applicable borrowing available to the Administrative Agent, then the applicable  Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such  corresponding amount with interest thereon, for each day from and including the date such amount is  made available to the Borrower to but excluding the date of payment to the Administrative Agent, at  (A) in the case of a payment to be made by such Lender, the greater of the daily average Federal Funds  Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation and (B) 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 such interest to the  Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly  remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such  Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid  shall constitute such Lender’s Loan included in such borrowing.  Any payment by the Borrower shall  be without prejudice to any claim the Borrower may have against a Lender that shall have failed to  make such payment to the Administrative Agent.  (b) Payments by the Borrower; Presumptions by Administrative Agent.  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, the Issuing Lender or the  Swingline Lender hereunder that the Borrower will not make such payment, the Administrative Agent  may assume that the Borrower has made such payment on such date in accordance herewith and may,  in reliance upon such assumption, distribute to the Lenders, the Issuing Lender or the Swingline  Lender, 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, the Issuing Lender or the Swingline Lender, as the case maybe,  severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed  to such Lender, Issuing Lender or the Swingline Lender, with interest thereon, for each day from and  including the date such amount is distributed to it to but excluding the date of payment to 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.  (c) Nature of Obligations of Lenders Regarding Extensions of Credit.  The obligations of the  Lenders under this Agreement to make the Loans, to issue or participate in Letters of Credit and to  make payments under this Section, Section 5.11(e), Section 11.11, Section 12.3(c) or Section 12.7, as  





 






    61  142746705_6  applicable, are several and are not joint or joint and several.  The failure of any Lender to make  available its Commitment Percentage of any Loan requested by the Borrower shall not relieve it or any  other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan  available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender  to make its Commitment Percentage of such Loan available on the borrowing date.  SECTION 5.8 Changed Circumstances.  (a) Circumstances Affecting LIBOR Rate Availability.  Subject to clause (c) below, in  connection with any request for a LIBOR Rate Loan or a conversion to or continuation thereof, if for  any reason (i) the Administrative Agent shall determine (which determination shall be conclusive and  binding absent manifest error) that 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) the  Administrative Agent shall determine (which determination shall be conclusive and binding absent  manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate  for such Interest Period with respect to a proposed LIBOR Rate Loan or (iii) the Required Lenders  shall determine (which determination shall be conclusive and binding absent manifest error) that the  LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or 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 Rate Loans and the right  of the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan shall be  suspended, 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 Rate Loan together with accrued interest thereon  (subject to Section 5.1(d)), on the last day of the then current Interest Period applicable to such LIBOR  Rate Loan; or (B) convert the then outstanding principal amount of each such LIBOR Rate Loan to a  Base Rate Loan as of the last day of such Interest Period.  (b) Laws Affecting LIBOR Rate Availability.  If, after the date hereof, the introduction of, or  any change in, any Applicable Law or any change in the interpretation or administration thereof by any  Governmental Authority, central bank or comparable agency charged with the interpretation or  administration thereof, or compliance by any of the Lenders (or any of their respective Lending  Offices) with any request or directive (whether or not having the force of law) of any such  Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for  any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to  make or maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to the  Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the  other Lenders.  Thereafter, until the Administrative Agent notifies the Borrower that such  circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans, and the  right of the Borrower to convert any Loan to a LIBOR Rate Loan or continue any Loan as a LIBOR  Rate Loan shall be suspended and thereafter the Borrower may select only Base Rate Loans and (ii) if  any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of the then  current Interest Period applicable thereto, the applicable Loan shall immediately be converted to a  Base Rate Loan for the remainder of such Interest Period.  (c) Benchmark Replacement Setting.  (i) (A) Benchmark Transition Event or Early Opt-In Election.  Notwithstanding anything to the contrary herein or in any other Loan Document (and any  Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this  Section 5.8(c)) if a Benchmark Transition Event or an Early Opt-in Election, as  





 






    62  142746705_6  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. (New York  City time) on the fifth (5th) Business Day after the date notice of such Benchmark  Replacement is provided to the Lenders without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document so long as the  Administrative Agent has not received, by such time, written notice of objection to such  Benchmark Replacement from Lenders comprising the Required Lenders.   (B) Term SOFR Transition Event.  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 5.8(c)(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 5.8(c), 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  





 






    63  142746705_6  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 5.8(c).  (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 Rate 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 5.8(c) shall be deemed satisfied.  SECTION 5.9 Indemnity.  The Borrower hereby indemnifies each of the Lenders against  any loss or expense (including any loss or expense arising from the liquidation or reemployment of funds  obtained by it to maintain a LIBOR Rate Loan or from fees payable to terminate the deposits from which  such funds were obtained) which may arise or be attributable to each Lender’s obtaining, liquidating or  employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a consequence of  any failure by the Borrower to make any payment when due of any amount due hereunder in connection  with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow, continue or convert on a date  specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any  payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the  





 






    64  142746705_6  Interest Period therefor.  The amount of such loss or expense shall be determined, in the applicable  Lender’s sole discretion, based upon the assumption that such Lender funded its Commitment Percentage  of the LIBOR Rate Loans in the London interbank market and using any reasonable attribution or  averaging methods which such Lender deems appropriate and practical.  A certificate of such Lender  setting forth the basis for determining such amount or amounts necessary to compensate such Lender  shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed  to be correct save for manifest error.  SECTION 5.10 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, compulsory  loan, insurance charge or similar requirement against assets of, deposits with or for the account  of, or advances, loans or other credit extended or participated in by, any Lender (except any  reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes  described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection  Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or  its deposits, reserves, other liabilities or capital attributable thereto; or  (iii) impose on any Lender or the Issuing Lender or the London interbank market any  other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Rate  Loans made by such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Lender or  such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining  its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Lender or  such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining  its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum  received or receivable by such Lender, such Issuing Lender or such other Recipient hereunder  (whether of principal, interest or any other amount) then, upon written request of such Lender, such  Issuing Lender or other Recipient, the Borrower shall promptly pay to any such Lender, such Issuing  Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate  such Lender, such Issuing Lender or other Recipient, as the case may be, for such additional costs  incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or the Issuing Lender determines that any Change  in Law affecting such Lender or such Issuing Lender or any Lending Office of such Lender or such  Lender’s or such Issuing Lender’s holding company, if any, regarding capital or liquidity  requirements, has or would have the effect of reducing the rate of return on such Lender’s or such  Issuing Lender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company,  if any, as a consequence of this Agreement, the Revolving Credit Commitment of such Lender or the  Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the  Letters of Credit issued by such Issuing Lender, to a level below that which such Lender or such  Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved but  for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and  the policies of such Lender’s or such Issuing Lender’s holding company with respect to capital  adequacy and liquidity), then from time to time upon written request of such Lender or such Issuing  Lender the Borrower shall promptly pay to such Lender or such Issuing Lender, as the case may be,  





 






    65  142746705_6  such additional amount or amounts as will compensate such Lender or such Issuing Lender or such  Lender’s or such Issuing Lender’s holding company for any such reduction suffered.    (c) Certificates for Reimbursement.  A certificate of a Lender, or an Issuing Lender or such  other Recipient setting forth the amount or amounts necessary to compensate such Lender or such  Issuing Lender, such other Recipient or any of their respective holding companies, as the case may be,  as specified in paragraph (a) or (b) of this Section and delivered to the Borrower, shall be conclusive  absent manifest error.  The Borrower shall pay such Lender or such Issuing Lender or such other  Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days  after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or the Issuing Lender or  such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of  such Lender’s or such Issuing Lender’s or such other Recipient’s right to demand such compensation;  provided that the Borrower shall not be required to compensate any Lender or an Issuing Lender or  any other Recipient pursuant to this Section for any increased costs incurred or reductions suffered  more than nine (9) months prior to the date that such Lender or such Issuing Lender or such other  Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such  increased costs or reductions, and of such Lender’s or such Issuing Lender’s or such other Recipient’s  intention to claim compensation therefor (except that if the Change in Law giving rise to such  increased costs or reductions is retroactive, then the nine-month period referred to above shall be  extended to include the period of retroactive effect thereof).  SECTION 5.11 Taxes.  (a) Defined Terms.  For purposes of this Section 5.11, the term “Lender” includes the Issuing  Lender and the term “Applicable Law” includes FATCA.  (b) Payments Free of Taxes.  Any and all payments by or on account of any obligation of any  Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes,  except as required by Applicable Law.  If any Applicable Law (as determined in the good faith  discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from  any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to  make such deduction or withholding and shall timely pay the full amount deducted or withheld to the  relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the applicable Credit 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 Credit Parties.  The Credit 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 Credit Parties.  The Credit Parties shall jointly and severally  indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any  Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts  payable under this Section) 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  





 






    66  142746705_6  relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered  to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative  Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the  Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes  attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the  Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit  Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of  Section 12.9(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes  attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in  connection with any Loan Document, and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any  Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby  authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to  such Lender under any Loan Document or otherwise payable by the Administrative Agent to the  Lender from any other source against any amount due to the Administrative Agent under this  paragraph (e).  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit  Party to a Governmental Authority pursuant to this Section 5.11, such Credit 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.  (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  Section 5.11(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s  reasonable judgment such completion, execution or submission would subject such Lender to any  material unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Lender.  (ii) Without limiting the generality of the foregoing:  (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  





 






    67  142746705_6  Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that  such Lender is exempt from United States 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:  (1) in the case of a Foreign Lender claiming the benefits of an  income tax treaty to which the United States is a party (x) with respect to  payments of interest under any Loan Document, executed copies of IRS Form  W-8BEN-E establishing an exemption from, or reduction of, United States  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-E establishing an exemption from, or reduction of, United  States federal withholding Tax pursuant to the “business profits” or “other  income” article of such tax treaty;  (2) executed copies of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Code, (x) a  certificate substantially in the form of Exhibit H-1 to the effect that such Foreign  Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a  “10 percent shareholder” of the Borrower within the meaning of  Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described  in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and  (y) executed copies of IRS Form W-8BEN-E; or  (4) to the extent a Foreign Lender is not the beneficial owner,  executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS  Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of  Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents  from each beneficial owner, as applicable; provided that if the 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 H-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), executed copies of any  other form prescribed by Applicable Law as a basis for claiming exemption from or a  reduction in United States 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  





 






    68  142746705_6  (D) if a payment made to a Lender under any Loan Document would be  subject to United States federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA (including  those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender  shall deliver to the Borrower and the Administrative Agent at the time or times prescribed  by law and at such time or times reasonably requested by the Borrower or the  Administrative Agent such documentation prescribed by Applicable Law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Borrower or the Administrative Agent as may be necessary  for the Borrower and the Administrative Agent to comply with their obligations under  FATCA and to determine that such Lender has complied with such Lender’s obligations  under FATCA or to determine the amount to deduct and withhold from such payment.   Solely for purposes of this clause (D), “FATCA” shall include any amendments made to  FATCA after the date of this Agreement.  Each Lender agrees that if any form or certification it previously delivered expires or becomes  obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the  Borrower 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 5.11 (including by the payment of additional amounts pursuant to this Section 5.11), 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 paragraph (h) (plus any penalties, interest or other charges  imposed by the relevant Governmental Authority) in the event that such indemnified party is required  to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in  this paragraph (h), in no event will the indemnified party be required to pay any amount to an  indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified  party in a less favorable net after-Tax position than the indemnified party would have been in if the  Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or  otherwise imposed and the indemnification payments or additional amounts with respect to such Tax  had never been paid.  This paragraph shall not be construed to require any indemnified party to make  available its Tax returns (or any other information relating to its Taxes that it deems confidential) to  the indemnifying party or any other Person.  (i) Indemnification of the Administrative Agent.  Each Lender and the Issuing Lender shall  severally indemnify the Administrative Agent within ten (10) days after demand therefor, for (i) any  Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not  already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the  obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply  with the provisions of Section 12.10(e) 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  





 






    69  142746705_6  amounts at any time owing to such Lender under any Loan Document or otherwise payable by the  Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (i).  The agreements in paragraph (i) shall survive the  resignation and/or replacement of the Administrative Agent.  (j) Survival.  Each party’s obligations under this Section 5.11 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.  SECTION 5.12 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests compensation under  Section 5.10, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.11, then  such Lender shall, at the request of the Borrower, use reasonable efforts to designate a different  Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations  hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such  designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.10 or  Section 5.11, as the case may be, in the future and (ii) would not subject such Lender to any  unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection  with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section 5.10, or if  the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any  Governmental Authority for the account of any Lender pursuant to Section 5.11, and, in each case,  such Lender has declined or is unable to designate a different Lending Office in accordance with  Section 5.12(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the  Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative  Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to  the restrictions contained in, and consents required by, Section 12.9), all of its interests, rights (other  than its existing rights to payments pursuant to Section 5.10 or Section 5.11) and obligations under this  Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations  (which assignee may be another Lender, if a Lender accepts such assignment); provided that:  (i) the Borrower shall have paid to the Administrative Agent the assignment fee (if  any) specified in Section 12.9;  (ii) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued  fees and all other amounts payable to it hereunder and under the other Loan Documents  (including any amounts under Section 5.9) from the assignee (to the extent of such outstanding  principal and accrued interest and fees) or the Borrower (in the case of all other amounts);  (iii) in the case of any such assignment resulting from a claim for compensation under  Section 5.10 or payments required to be made pursuant to Section 5.11, such assignment will  result in a reduction in such compensation or payments thereafter;  (iv) such assignment does not conflict with Applicable Law; and  





 






    70  142746705_6  (v) in the case of any assignment resulting from a Lender becoming a Non- Consenting Lender, the applicable assignee shall have consented to the applicable amendment,  waiver or consent.  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.  Each party hereto agrees that (x) an assignment required pursuant to this Section 5.12 may be  effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent  and the assignee and (y) the Lender required to make such assignment need not be a party thereto in order  for such assignment to be effective and shall be deemed to have consented to and be bound by the terms  thereof; provided that, following the effectiveness of any such assignment, the other parties to such  assignment agree to execute and deliver such documents necessary to evidence such assignment as  reasonably requested by the applicable Lender or the Administrative Agent, provided, further that any  such documents shall be without recourse to or warranty by the parties thereto.  SECTION 5.13 Cash Collateral.  At any time that there shall exist a Defaulting Lender,  within one Business Day following the written request of the Administrative Agent, the Issuing Lender  (with a copy to the Administrative Agent) or the Swingline Lender (with a copy to the Administrative  Agent), the Borrower shall Cash Collateralize the Fronting Exposure of such Issuing Lender and/or the  Swingline Lender, as applicable, with respect to such Defaulting Lender (determined after giving effect to  Section 5.14(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less  than the Minimum Collateral Amount.  (a) Grant of Security Interest.  The Borrower, and to the extent provided by any Defaulting  Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the  Issuing Lender and the Swingline Lender, and agrees to maintain, a first priority security interest in all  such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect  of L/C Obligations and Swingline Loans, to be applied pursuant to subsection (b) below.  If at any  time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any  Person other than the Administrative Agent, the Issuing Lender and the Swingline Lender as herein  provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral  Amount, 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).  (b) Application.  Notwithstanding anything to the contrary contained in this Agreement,  Cash Collateral provided under this Section 5.13 or Section 5.14 in respect of Letters of Credit and  Swingline Loans shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund  participations in respect of L/C Obligations and Swingline Loans (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.  (c) Termination of Requirement.  Cash Collateral (or the appropriate portion thereof)  provided to reduce the Fronting Exposure of the Issuing Lender and/or the Swingline Lender, as  applicable, shall no longer be required to be held as Cash Collateral pursuant to this Section 5.13  following (i) the elimination of the applicable Fronting Exposure (including by the termination of  Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative  Agent, the Issuing Lender and the Swingline Lender that there exists excess Cash Collateral; provided  





 






    71  142746705_6  that, subject to Section 5.14, the Person providing Cash Collateral, the Issuing Lender and the  Swingline Lender may 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.  SECTION 5.14 Defaulting Lenders.  (a) Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in  this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no  longer a Defaulting Lender, to the extent permitted by Applicable Law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted  as set forth in the definition of “Required Lenders”, “Required Revolving Credit Lenders”,  “Required Term A-1 Loan Lenders” or “Required Term A-2 Loan Lenders” and Section 12.2.  (ii) 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 12.4 shall be applied at  such time or times as may be determined by the Administrative Agent as follows: first, to the  payment of any amounts owing by such Defaulting Lender to the Administrative Agent  hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting  Lender to the Issuing Lender or the Swingline Lender hereunder; third, to Cash Collateralize the  Fronting Exposure of the Issuing Lender and the Swingline Lender with respect to such  Defaulting Lender in accordance with Section 5.13; fourth, as the Borrower may request (so long  as no Default or Event of Default exists), to the funding of any Loan or funded participation 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; fifth, if so determined by the  Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in  order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to  Loans and funded participations under this Agreement and (B) Cash Collateralize the Issuing  Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future  Letters of Credit and Swingline Loans issued under this Agreement, in accordance with  Section 5.13; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lender or  the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by  any Lender, the Issuing Lender or the Swingline Lender against such Defaulting Lender as a  result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so  long as no Default or Event of Default 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 eighth, to such Defaulting Lender or as otherwise directed  by a court of competent jurisdiction; provided that if (1) such payment is a payment of the  principal amount of any Loans or funded participations in Letters of Credit or Swingline Loans in  respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such  Loans were made or the related Letters of Credit or Swingline Loans were issued at a time when  the conditions set forth in Section 6.2 were satisfied or waived, such payment shall be applied  solely to pay the Loans of, and funded participations in Letters of Credit or Swingline Loans  owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of  any Loans of, or funded participations in Letters of Credit or Swingline Loans owed to, such  





 






    72  142746705_6  Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C  Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the  Revolving Credit Commitments under the applicable Revolving Credit Facility without giving  effect to Section 5.14(a)(iv).  Any payments, prepayments or other amounts paid or payable to a  Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to  post Cash Collateral pursuant to this Section 5.14(a)(ii) shall be deemed paid to and redirected by  such Defaulting Lender, and each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) No Defaulting Lender shall be entitled to receive any Commitment Fee  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).  (B) Each Defaulting Lender shall be entitled to receive letter of credit  commissions pursuant to Section 3.3 for any period during which that Lender is a  Defaulting Lender only to the extent allocable to its Revolving Credit Commitment  Percentage of the stated amount of Letters of Credit for which it has provided Cash  Collateral pursuant to Section 5.13.  (C) With respect to any Commitment Fee or letter of credit commission not  required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the  Borrower shall (1) 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 L/C Obligations or Swingline Loans that has been reallocated to such  Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to the Issuing Lender and  the Swingline Lender, as applicable, the amount of any such fee otherwise payable to  such Defaulting Lender to the extent allocable to such Issuing Lender’s or Swingline  Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the  remaining amount of any such fee.  (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or any part of  such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be  reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving  Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s  Revolving Credit Commitment) but only to the extent that such reallocation does not cause the  aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non- Defaulting Lender’s Revolving Credit Commitment.  No reallocation hereunder shall constitute a  waiver or release of any claim of any party hereunder against a Defaulting Lender arising from  that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender  as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.  (v) Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in  clause (iv) 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, (x) first, repay Swingline Loans in  an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize  the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in  Section 5.13.  





 






    73  142746705_6  (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Issuing Lender  and the Swingline Lender 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 may include arrangements with  respect to any Cash Collateral), such 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 the Loans and funded and unfunded participations in Letters of  Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments  under the applicable Credit Facility (without giving effect to Section 5.14(a)(iv)), whereupon such  Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively  with respect to fees accrued or payments made by or on behalf of the 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 Non-Defaulting Lender will  constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having  been a Defaulting Lender.  SECTION 5.15 Incremental Loans.    (a) Request for Incremental Increase.  At any time after the Closing Date, the Borrower may  by written notice to the Administrative Agent elect to request the establishment of:   (i) one or more incremental term loan commitments (any such incremental term loan  commitment, an “Incremental Term Loan Commitment” and, collectively, the “Incremental Term  Loan Commitments”) to make one or more additional term loans, including a borrowing of an  additional term loan the principal amount of which will be added to the outstanding principal  amount of the existing tranche of Term Loans with the latest scheduled maturity date (any such  additional term loan, an “Incremental Term Loan”)  (any such additional term loan, an  “Incremental Term Loan” and, collectively, the “Incremental Term Loans”); or  (ii) one or more increases in the Revolving Credit Commitments (any such increase,  an “Incremental Revolving Credit Commitment” and, collectively, the “Incremental Revolving  Credit Commitments” and, together with the Incremental Term Loan Commitments, the  “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit  Facility (any such increase, an “Incremental Revolving Credit Increase” and, collectively, the  “Incremental Revolving Credit Increases” and, and, together with the Incremental Term Loan  Commitments and Incremental Term Loans, the “Incremental Increases”);  provided that (1) the aggregate initial principal amount of such requested Incremental Increase shall not  exceed the Incremental Facilities Limit, (2) the total aggregate amount for each Incremental Increase shall  not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount of the  Incremental Facilities Limit, (3) no Lender will be required otherwise obligated to provide any portion of  any Incremental Increase and (4) the Borrower shall make a maximum of five (5) requests in the  aggregate for Incremental Increases.    (b) Incremental Lenders.  Each notice from the Borrower pursuant to this Section 5.13 shall  set forth the requested amount and proposed terms of the relevant Incremental Increase.  Incremental  Increases may be provided by any existing Lender or by any other Persons (each such Lender or other  Person, an “Incremental Lender”); provided that the Administrative Agent, the Issuing Lender and/or the  Swingline Lender, as applicable, shall have consented (not to be unreasonably withheld or delayed) to  such Incremental Lender’s providing such Incremental Increases to the extent any such consent would be  required under Section 12.9(b) for an assignment of Loans or Commitments, as applicable, to such  





 






    74  142746705_6  Incremental Lender.  At the time of sending such notice, the Borrower (in consultation with the  Administrative Agent) shall specify the time period within which each proposed Incremental Lender is  requested to respond, which shall in no event be less than ten (10) Business Days from the date of  delivery of such notice to the proposed Incremental Lenders (or such shorter period as agreed to by the  Administrative Agent).  Each proposed Incremental Lender may elect or decline, in its sole discretion,  and shall notify the Administrative Agent within such time period whether it agrees, to provide an  Incremental Increase and, if so, whether by an amount equal to, greater than or less than requested.  Any  Person not responding within such time period shall be deemed to have declined to provide an  Incremental Increase.  (c) Increase Effective Date and Allocations.  The Administrative Agent and the Borrower  shall determine the effective date (the “Increase Effective Date”) and the final allocation of such  Incremental Increase (limited in the case of the Incremental Lenders to their own respective allocations  thereof).  The Administrative Agent shall promptly notify the Borrower and the Incremental Lenders of  the final allocation of such Incremental Increases and the Increase Effective Date.  (d) Conditions to Effectiveness of Incremental Increases.  Any Incremental Increase shall  become effective as of such Increase Effective Date and shall be subject to the following conditions  precedent:  (i) no Default or Event of Default shall exist on such Increase Effective Date before  or after giving effect to (A) any Incremental Increase, (B) the making of any Extensions of Credit  pursuant thereto and (C) any Permitted Acquisition consummated in connection therewith;  provided that, in the case of an Incremental Term Loan incurred solely to finance a substantially  concurrent Limited Condition Acquisition, the foregoing condition shall be subject to Section  1.11;  (ii) the Administrative Agent and the Lenders shall have received from the Borrower  an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory  to the Administrative Agent, that the Borrower is in compliance with the financial covenants set  forth in Section 9.13, in each case based on the financial statements most recently delivered  pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro  Forma Basis) to (A) any Incremental Increase, (B) the making of any Extension of Credit  pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and  (C) any Permitted Acquisition consummated in connection therewith; provided that, in the case of  an Incremental Term Loan incurred solely to finance a substantially concurrent Limited  Condition Acquisition, the foregoing condition shall be subject to Section 1.11;  (iii) each of the representations and warranties contained in Article VII shall be true  and correct in all material respects, except to the extent any such representation and warranty is  qualified by materiality or reference to Material Adverse Effect, in which case, such  representation and warranty shall be true, correct and complete in all respects, on such Increase  Effective Date with the same effect as if made on and as of such date (except for any such  representation and warranty that by its terms is made only as of an earlier date, which  representation and warranty shall remain true and correct as of such earlier date); provided that, in  the case of an Incremental Term Loan incurred solely to finance a substantially concurrent  Limited Condition Acquisition, the foregoing condition shall be subject to Section 1.11;  (iv) the proceeds of any Incremental Increase shall be used for working capital and  general corporate purposes of the Borrower and its Subsidiaries (including, without limitation,  Permitted Acquisitions);  





 






    75  142746705_6  (v) each Incremental Increase (and the Extensions of Credit made thereunder) shall  constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of  Credit on a pari passu basis;  (vi) the Credit Parties shall have executed an Incremental Amendment in form and  substance reasonably acceptable to the Borrower and the applicable Incremental Lenders; and  (vii) the Administrative Agent shall have received from the Borrower, any customary  legal opinions and any other documents (including a resolution duly adopted by the board of  directors (or equivalent governing body) of each Credit Party authorizing such Incremental  Increase) reasonably requested by Administrative Agent in connection with such Incremental  Increase.  (e) Terms of Incremental Increases.  The terms of each Incremental Increase (which shall be  set forth in the relevant Incremental Amendment) shall be determined by the Borrower and the applicable  Incremental Lenders; provided that:  (i) in the case of each Incremental Term Loan:  (A) the maturity of any such Incremental Term Loan shall not be earlier than  the then the latest scheduled maturity date of the Loans and Commitments in effect as of  the Increase Effective Date and the Weighted Average Life to Maturity of any such  Incremental Term Loan shall not be shorter than the remaining Weighted Average Life to  Maturity of such latest maturing Term Loans;  (B) the Applicable Margin and pricing grid, if applicable, for such  Incremental Term Loan shall be determined by the Administrative Agent, the applicable  Incremental Lenders and the Borrower on the applicable Increase Effective Date;  (C) any mandatory prepayment (other than scheduled amortization  payments) of each Incremental Term Loan shall be made on a pro rata basis with all then  existing Term Loans, except that the Borrower and the Incremental Lenders in respect of  such Incremental Term Loan may, in their sole discretion, elect to prepay or receive, as  applicable, any prepayments on a less than pro rata basis (but not on a greater than pro  rata basis); and  (D) except as provided above, all other terms and conditions applicable to  any Incremental Term Loan shall be consistent with the terms and conditions applicable  to the Term A-1 Loan and the Term A-2 Loan or otherwise reasonably satisfactory to the  Administrative Agent and the Borrower (provided that such other terms and conditions,  taken as a whole, shall not be more favorable to the Lenders under any Incremental Term  Loans than such other terms and conditions, taken as a whole, under the Term A-1 Loans  and the Term A-2 Loans);  (ii) in the case of each Incremental Revolving Credit Increase:  (A) such Incremental Revolving Credit Increase shall mature on the  Revolving Credit Maturity Date, shall bear interest and be entitled to fees, in each case at  the rate applicable to the Revolving Credit Loans, and shall be subject to the same terms  and conditions as the Revolving Credit Loans (except for interest rate margins,  commitment fees and upfront fees); provided that if the interest rate margins and/or  





 






    76  142746705_6  commitment fees in respect of any Incremental Revolving Credit Increase exceed the  interest rate margins and/or commitment fees for any other Revolving Credit  Commitments, then the interest rate margins and/or commitment fees, as applicable, for  such other Revolving Credit Commitments shall be increased so that the interest rate  margins and/or commitment fees, as applicable, are equal to the interest rate margins  and/or commitment fees for such Incremental Revolving Credit Increase;  (B) the outstanding Revolving Credit Loans and Revolving Credit  Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by  the Administrative Agent on the applicable Increase Effective Date among the Revolving  Credit Lenders (including the Incremental Lenders providing such Incremental Revolving  Credit Increase) in accordance with their revised Revolving Credit Commitment  Percentages (and the Revolving Credit Lenders (including the Incremental Lenders  providing such Incremental Revolving Credit Increase) agree to make all payments and  adjustments necessary to effect such reallocation and the Borrower shall pay any and all  costs required pursuant to Section 5.9 in connection with such reallocation as if such  reallocation were a repayment); and  (C) except as provided above, all of the other terms and conditions applicable  to such Incremental Revolving Credit Increase shall be identical to the terms and  conditions applicable to the Revolving Credit Facility (and any Incremental Lender with  an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the  existing Revolving Credit Lenders under the Revolving Credit Facility and any  Extensions of Credit made in connection with each Incremental Revolving Credit  Increase shall receive proceeds of prepayments on the same basis as the other Revolving  Credit Loans made hereunder).  (f) Incremental Lenders.  (i) On any Increase Effective Date on which any Incremental Term Loan  Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental  Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an  Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan  Commitment and shall become an Incremental Term Loan Lender hereunder with respect to such  Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.  (ii) On any Increase Effective Date on which any Incremental Revolving Credit  Increase becomes effective, subject to the foregoing terms and conditions, each Incremental  Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit  Lender hereunder with respect to such Incremental Revolving Credit Commitment.  





 






    77  142746705_6  (g) Incremental Amendments.  Each such Incremental Increase shall be effected pursuant to  an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan  Documents, executed by the Credit Parties, the Administrative Agent and the applicable Incremental  Lenders, which Incremental Amendment may, without the consent of any other Lenders, effect such  amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the  reasonable opinion of the Administrative Agent, to effect the provisions of this Section 5.15.  ARTICLE VI    CONDITIONS OF CLOSING AND BORROWING  SECTION 6.1 Conditions to Closing and Necessary Closing Funds.  The obligation of the  Lenders to close this Agreement and to fund the Necessary Closing Funds is subject to the satisfaction of  each of the following conditions:    (a) Executed Loan Documents.  This Agreement, a Revolving Credit Note in favor of each  Revolving Credit Lender requesting a Revolving Credit Note, a Term A-1 Loan Note in favor of each  Term A-1 Loan Lender requesting a Term A-1 Loan Note, a Term A-2 Loan Note in favor of each  Term A-2 Loan Lender requesting a Term A-2 Loan Note, a Swingline Note in favor of the Swingline  Lender (in each case, if requested thereby) and the Guaranty Agreement, together with any other  applicable Loan Documents, shall have been duly authorized, executed and delivered to the  Administrative Agent by the parties thereto, shall be in full force and effect and no Default or Event of  Default shall exist hereunder or thereunder.  (b) Closing Certificates; Etc.  The Administrative Agent shall have received each of the  following in form and substance reasonably satisfactory to the Administrative Agent:  (i) Officer’s Certificate.  A certificate from a Responsible Officer of the Borrower to  the effect that (A) all representations and warranties of the Credit Parties contained in this  Agreement and the other Loan Documents are true, correct and complete in all material respects  (except to the extent any such representation and warranty is qualified by materiality or reference  to Material Adverse Effect, in which case, such representation and warranty shall be true, correct  and complete in all respects); (B) none of the Credit Parties is in violation of any of the covenants  contained in this Agreement and the other Loan Documents; (C) after giving effect to the  Transactions, no Default or Event of Default has occurred and is continuing; (D) since December  31, 2020, no event has occurred or condition arisen, either individually or in the aggregate, that  has had or could reasonably be expected to have a Material Adverse Effect; and (E)  each of the  Credit Parties, as applicable, has satisfied each of the conditions set forth in Section 6.1 and  Section 6.2.  (ii) Certificate of Secretary of each Credit Party.  A certificate of a Responsible  Officer of each Credit Party certifying as to the incumbency and genuineness of the signature of  each officer of such Credit Party executing Loan Documents to which it is a party and certifying  that attached thereto is a true, correct and complete copy of (A) the articles or certificate of  incorporation or formation (or equivalent), as applicable, of such Credit Party and all  amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its  jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the  bylaws or other governing document of such Credit Party as in effect on the Closing Date,  (C) resolutions duly adopted by the board of directors (or other governing body) of such Credit  Party authorizing and approving the transactions contemplated hereunder and the execution,  





 






    78  142746705_6  delivery and performance of this Agreement and the other Loan Documents to which it is a party,  and (D) each certificate required to be delivered pursuant to Section 6.1(b)(iii).  (iii) Certificates of Good Standing.  Certificates as of a recent date of the good  standing of each Credit Party under the laws of its jurisdiction of incorporation, organization or  formation (or equivalent), as applicable, and, to the extent requested by the Administrative Agent,  each other jurisdiction where such Credit Party is qualified to do business, except to the extent  that the failure to be so qualified in such other jurisdiction could not reasonably be expected to  result in a Material Adverse Effect.  (iv) Opinions of Counsel.  Opinions of counsel to the Credit Parties addressed to the  Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents and  such other matters as the Administrative Agent shall request (which such opinions shall expressly  permit reliance by permitted successors and assigns of the Administrative Agent and the  Lenders).  (c) Lien Searches.  The Administrative Agent shall have received the results of a Lien search  (including a search as to judgments, bankruptcy, tax and intellectual property matters), in form and  substance reasonably satisfactory thereto, made against the Credit Parties under the Uniform  Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or  recordations under the Uniform Commercial Code should be made to evidence or perfect security  interests in all assets of such Credit Party, indicating among other things that the assets of each such  Credit Party are free and clear of any Lien (except for Permitted Liens).  (d) Consents; Defaults.  (i) Governmental and Third Party Approvals.  The Credit Parties shall have received  all material governmental, shareholder and third party consents and approvals necessary (or any  other material consents as determined in the reasonable discretion of the Administrative Agent) in  connection with the transactions contemplated by this Agreement and the other Loan Documents  and all applicable waiting periods shall have expired without any action being taken by any  Person that could reasonably be expected to restrain, prevent or impose any material adverse  conditions on any of the Credit Parties or such other transactions or that could seek or threaten  any of the foregoing, and no law or regulation shall be applicable which in the reasonable  judgment of the Administrative Agent could reasonably be expected to have such effect.  (ii) No Injunction, Etc.  No action, suit, proceeding or investigation shall be pending  or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or any  Governmental Authority that could reasonably be expected to have a Material Adverse Effect.  (e) Financial Matters.  (i) Financial Statements.  The Administrative Agent shall have received (in form  and substance reasonably satisfactory to the Administrative Agent):   (A) with respect to the Borrower and its Subsidiaries (other than NIC and its  Subsidiaries), (1) audited Consolidated balance sheets and related Consolidated  statements of income, shareholders’ equity and cash flows for the three most recently  completed Fiscal Years ended for which financial statements are available and  (2) unaudited Consolidated balance sheets and related Consolidated statements of  





 






    79  142746705_6  income, shareholders’ equity and cash flows for each interim fiscal quarter ended since  the last audited financial statements for which financial statements are available;   (B) with respect to NIC and its Subsidiaries, (1) audited Consolidated  balance sheets and related Consolidated statements of income, shareholders’ equity and  cash flows for the three most recently completed Fiscal Years ended for which financial  statements are available and (2) unaudited Consolidated balance sheets and related  Consolidated statements of income, shareholders’ equity and cash flows for each interim  fiscal quarter ended since the last audited financial statements for which financial  statements are available;   (C) a pro forma Consolidated balance sheet and related pro forma  consolidated statements of income and cash flows of the Borrower and its Subsidiaries  for the Fiscal Year most recently ended for which audited financial statements have been  provided and for the most recently completed fiscal quarters ending at least 45 days  before the Closing Date, calculated on a Pro Forma Basis after giving effect to the  Transactions (in accordance with Regulation S-X under the Securities Act, and all other  rules and regulations of the SEC under such Securities Act, and including other  adjustments previously agreed between the Borrower and Wells Fargo Securities, LLC)  as if the Transactions had occurred on the last day of such fiscal quarter (in the case of  such balance sheet) or at the beginning of such fiscal quarter (in the case of such other  financial statements); and  (D) projections prepared by management of the Borrower, of balance sheets,  income statements and cash flow statements on an annual basis for each year during the  term of the Credit Facility, which shall not be inconsistent with any financial information  or projections previously delivered to the Administrative Agent.  (ii) Solvency Certificate.  The Borrower shall have delivered to the Administrative  Agent a certificate, in form and substance satisfactory to the Administrative Agent, and certified  as accurate by the chief financial officer of the Borrower, that after giving effect to the  Transactions, (A) the Borrower is Solvent and (B) the Borrower and its Subsidiaries, on a  Consolidated basis, are Solvent.  (iii) Payment at Closing.  The Borrower shall have paid or made arrangements to pay  contemporaneously with closing (A) to the Administrative Agent, Wells Fargo Securities, LLC  and the Lenders the fees set forth or referenced in Section 5.3 and any other accrued and unpaid  fees or commissions due hereunder, (B) to the extent invoiced at least three (3) Business Days (or  such shorter period of time as reasonably agreed by the Borrower) prior to the Closing Date (or as  otherwise set forth in a funds flow or settlement statement executed by the Borrower), all fees,  charges and disbursements of counsel to the Administrative Agent (directly to such counsel if  requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the  Closing Date, plus such additional amounts of such fees, charges and disbursements as shall  constitute its reasonable estimate of such fees, charges and disbursements incurred or to be  incurred by it through the closing proceedings (provided that such estimate shall not thereafter  preclude a final settling of accounts between the Borrower and the Administrative Agent) and  (C) to any other Person such amount as may be due thereto in connection with the transactions  contemplated hereby, including all taxes, fees and other charges in connection with the execution,  delivery, recording, filing and registration of any of the Loan Documents.  





 






    80  142746705_6  (f) NIC Acquisition.    (i) The Administrative Agent shall have received (in form and substance reasonably  satisfactory to the Administrative Agent) true and correct fully-executed copies of documentation  for the NIC Acquisition, including the NIC Acquisition Agreement and all annexes, exhibits and  schedules thereto.   (ii) The NIC Acquisition shall have been consummated substantially concurrently  with the funding of the Necessary Closing Funds on the Closing Date in accordance with  Applicable Law and on the terms described in the Acquisition Agreement without giving effect to  any waiver, modification or consent thereunder that is materially adverse to the interests of the  Lenders (as reasonably determined by Wells Fargo Securities, LLC).  (g) Permitted Convertible Indebtedness and Committed Bridge Financing.  The  Administrative Agent shall have received (in form and substance reasonably satisfactory to the  Administrative Agent) evidence that:  (i) the Borrower shall have received the net proceeds from the Permitted  Convertible Indebtedness of not less than $594,000,000; and  (ii) the commitments in respect of that certain bridge financing facility providing for  a senior, unsecured 364-day term loan facility to the Borrower in connection with the NIC  Acquisition shall have been terminated without any funding thereunder.  (h) Miscellaneous.  (i) Notice of Account Designation.  The Administrative Agent shall have received a  Notice of Account Designation specifying the account or accounts to which the proceeds of any  Loans made on or after the Closing Date are to be disbursed.  (ii) Existing Indebtedness.  All existing Indebtedness of the Borrower and its  Subsidiaries (including Indebtedness under the Existing Credit Agreement, but excluding  Indebtedness permitted pursuant to Section 9.1) shall be repaid in full, all commitments (if any)  in respect thereof shall have been terminated and all guarantees therefor and security therefor  shall be released, and the Administrative Agent shall have received any pay-off letters reasonably  requested thereby in form and substance satisfactory to it evidencing such repayment, termination  and release.  (iii) PATRIOT Act, etc.  The Borrower and each other Credit Party shall have  provided to the Administrative Agent and the Lenders, at least five (5) Business Days prior to the  Closing Date, the documentation and other information requested by the Administrative Agent in  order to comply with requirements of any Anti-Money Laundering Laws, including the  PATRIOT Act and any applicable “know your customer” rules and regulations.  (iv) Beneficial Ownership Regulations.  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, in each case at least five (5) Business Days prior to the Closing  Date.  (v) Other Documents.  All opinions, certificates and other instruments and all  proceedings in connection with the transactions contemplated by this Agreement shall be  





 






    81  142746705_6  satisfactory in form and substance to the Administrative Agent.  The Administrative Agent shall  have received copies of all other documents, certificates and instruments reasonably requested  thereby, with respect to the transactions contemplated by this Agreement.  Without limiting the generality of the provisions of Section 11.3(c) and Section 11.4, for purposes of  determining compliance with the conditions specified in this Section 6.1, the Administrative Agent and  each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted  or to be satisfied with, each document or other matter required thereunder to be consented to or approved  by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice  from such Lender prior to the proposed Closing Date specifying its objection thereto.  SECTION 6.2 Conditions to All Extensions of Credit.  Subject to Section 5.15 and  Section 1.11 solely with respect to any Incremental Term Loan incurred to finance a substantially  concurrent Limited Condition Acquisition, the obligations of the Lenders to make or participate in any  Extensions of Credit (including the initial Extension of Credit) and/or the Issuing Lender to issue or  extend any Letter of Credit are subject to the satisfaction of the following conditions precedent on the  relevant borrowing, continuation, conversion, issuance or extension date:  (a) Continuation of Representations and Warranties.  The representations and warranties  contained in this Agreement and the other Loan Documents shall be true and correct in all material  respects, except for any representation and warranty that is qualified by materiality or reference to  Material Adverse Effect, which such representation and warranty shall be true and correct in all  respects, on and as of such borrowing, continuation, conversion, issuance or extension date with the  same effect as if made on and as of such date (except for any such representation and warranty that by  its terms is made only as of an earlier date, which representation and warranty shall remain true and  correct in all material respects as of such earlier date, except for any representation and warranty that is  qualified by materiality or reference to Material Adverse Effect, which such representation and  warranty shall be true and correct in all respects as of such earlier date).  (b) No Existing Default.  No Default or Event of Default shall have occurred and be  continuing (i) on the borrowing, continuation or conversion date with respect to such Loan or after  giving effect to the Loans to be made, continued or converted on such date or (ii) on the issuance or  extension date with respect to such Letter of Credit or after giving effect to the issuance or extension  of such Letter of Credit on such date.  (c) Notices.  The Administrative Agent shall have received a Notice of Borrowing, Letter of  Credit Application, or Notice of Conversion/Continuation, as applicable, from the Borrower in  accordance with Section 2.3(a), Section 3.2 or Section 5.2, as applicable.  (d) New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender,  (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it  will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the Issuing Lender  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.  ARTICLE VII    REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES  To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the  Lenders to make Extensions of Credit, the Credit Parties hereby represent and warrant to the  





 






    82  142746705_6  Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated  hereunder, which representations and warranties shall be deemed made on the Closing Date and as  otherwise set forth in Section 6.2, that:  SECTION 7.1 Organization; Power; Qualification.  Each Credit Party and each Subsidiary  thereof (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its  incorporation or formation, (b) has the power and authority to own its Properties and to carry on its  business as now being and hereafter proposed to be conducted and (c) is duly 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 except (i) in jurisdictions where the failure to be so qualified  or in good standing could not reasonably be expected to result in a Material Adverse Effect and (ii) solely  with respect to any Immaterial Subsidiary, with respect to clauses (a), (b) and (c) above, in jurisdictions  where the failure could not reasonably be expected to result in a Material Adverse Effect.  The  jurisdictions in which each Credit Party is organized and qualified to do business as of the Closing Date  are described on Schedule 7.1. No Credit Party nor any Subsidiary thereof is an Affected Financial  Institution.  No Credit Party nor any Subsidiary thereof is a Covered Entity.  SECTION 7.2 Ownership.  Each Subsidiary of each Credit Party as of the Closing Date is  listed on Schedule 7.2.  As of the Closing Date, the capitalization of each Credit Party and its Subsidiaries  consists of the number of shares, authorized, issued and outstanding, of such classes and series, with or  without par value, described on Schedule 7.2.  All outstanding shares have been duly authorized and  validly issued and are fully paid and nonassessable and not subject to any preemptive or similar rights,  except as described in Schedule 7.2.  As of the Closing Date, there are no outstanding stock purchase  warrants, subscriptions, options, securities, instruments or other rights of any type or nature whatsoever,  which are convertible into, exchangeable for or otherwise provide for or require the issuance of Equity  Interests of any Credit Party or any Subsidiary thereof, except as described on Schedule 7.2.  SECTION 7.3 Authorization; Enforceability.  Each Credit Party has the right, power and  authority and has taken all necessary corporate and other action to authorize the execution, delivery and  performance of this Agreement and each of the other Loan Documents to which it is a party in accordance  with their respective terms.  This Agreement and each of the other Loan Documents have been duly  executed and delivered by the duly authorized officers of each Credit Party that is a party thereto, and  each such document constitutes the legal, valid and binding obligation of each Credit Party that is a party  thereto, enforceable in accordance with its terms, except as such enforceability may be limited by  bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from  time to time in effect which affect the enforcement of creditors’ rights in general and the availability of  equitable remedies.  SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.   The execution, delivery and performance by each Credit Party of the Loan Documents to which each such  Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder and the  transactions contemplated hereby or thereby do not and will not, by the passage of time, the giving of  notice or otherwise, (a) require any Governmental Approval or violate any Applicable Law relating to any  Credit Party where the failure to obtain such Governmental Approval or such violation could reasonably  be expected to have a Material Adverse Effect, (b) conflict with, result in a breach of or constitute a  default under the articles of incorporation, bylaws or other organizational documents of any Credit Party,  (c) conflict with, result in a breach of or constitute a default under any indenture, agreement or other  instrument to which such Person is a party or by which any of its properties may be bound or any  Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably  be expected to have a Material Adverse Effect, (d) result in or require the creation or imposition of any  Lien upon or with respect to any property now owned or hereafter acquired by such Person other than  





 






    83  142746705_6  Permitted Liens or (e) require any consent or authorization of, filing with, or other act in respect of, an  arbitrator or Governmental Authority and no consent of any other Person is required in connection with  the execution, delivery, performance, validity or enforceability of this Agreement other than consents,  authorizations, filings or other acts or consents for which the failure to obtain or make could not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  SECTION 7.5 Compliance with Law; Governmental Approvals.  Each Credit Party (a) has  all Governmental Approvals required by any Applicable Law for it to conduct its business, each of which  is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending  or, to its knowledge, threatened attack by direct or collateral proceeding, (b) is in compliance with each  Governmental Approval applicable to it and in compliance with all other Applicable Laws relating to it or  any of its respective properties and (c) has timely filed all material reports, documents and other materials  required to be filed by it under all Applicable Laws with any Governmental Authority and has retained all  material records and documents required to be retained by it under Applicable Law except in each case  (a), (b) or (c) where the failure to have, comply or file could not reasonably be expected to have a  Material Adverse Effect.  SECTION 7.6 Tax Returns and Payments.  Each Credit Party and each Subsidiary thereof  has duly filed or caused to be filed all federal, state and other material tax returns required by Applicable  Law to be filed, and has paid, or made adequate provision for the payment of, all federal, state, local and  other taxes, assessments and governmental charges or levies upon it and its property, income, profits and  assets which are due and payable (other than any amount the validity of which is currently being  contested in good faith by appropriate proceedings and with respect to which reserves in conformity with  GAAP have been provided for on the books of the relevant Credit Party), except solely with respect to  any Immaterial Subsidiary where the failure to so file or pay could not reasonably be expected to result in  a Material Adverse Effect.  Such returns accurately reflect in all material respects all liability for taxes of  any Credit Party or any Subsidiary thereof for the periods covered thereby.  As of the Closing Date,  except as set forth on Schedule 7.6, there is no ongoing audit or examination or, to its knowledge, other  investigation by any Governmental Authority that could be reasonably expected to result in any material  tax liability to any Credit Party or any Subsidiary thereof.  No Governmental Authority has asserted any  Lien or other claim against any Credit Party or any Subsidiary thereof with respect to material unpaid  taxes which has not been discharged or resolved (other than (a) any amount the validity of which is  currently being contested in good faith by appropriate proceedings and with respect to which reserves in  conformity with GAAP have been provided for on the books of the relevant Credit Party and  (b) Permitted Liens).  The charges, accruals and reserves on the books of each Credit Party and each  Subsidiary thereof in respect of federal, state, local and other material taxes for all Fiscal Years and  portions thereof since the organization of any Credit Party or any Subsidiary thereof are in the judgment  of the Borrower adequate, and the Borrower does not anticipate any additional taxes or assessments for  any of such years.  SECTION 7.7 Intellectual Property Matters.  Each Credit Party and each Subsidiary thereof  owns or possesses rights to use all material franchises, licenses, copyrights, copyright applications,  patents, patent rights or licenses, patent applications, trademarks, trademark rights, service mark, service  mark rights, trade names, trade name rights, copyrights and other rights with respect to the foregoing  which are reasonably necessary to conduct its business, except to the extent the failure to have any such  rights, individually or in the aggregate, could not reasonably be expect to have a Material Adverse Effect.   No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation  or termination of any such rights, and no Credit Party nor any Subsidiary thereof is liable to any Person  for infringement under Applicable Law with respect to any such rights as a result of its business  operations, which, individually or in the aggregate, could reasonably be expected to have a Material  Adverse Effect.  





 






    84  142746705_6  SECTION 7.8 Environmental Matters.  (a) The properties owned, leased or operated by each Credit Party and each Subsidiary  thereof now or in the past do not contain, and to their knowledge have not previously contained, any  Hazardous Materials in amounts or concentrations which constitute or constituted a violation of  applicable Environmental Laws that could reasonably be expected, individually or in the aggregate, to  have a Material Adverse Effect;  (b) To its knowledge, each Credit Party and each Subsidiary thereof and such properties and  all operations conducted in connection therewith are in compliance, and have been in compliance, with  all applicable Environmental Laws, and there is no contamination at, under or about such properties or  such operations that could reasonably be expected to materially interfere with the continued operation  of such properties or materially impair the fair saleable value thereof;  (c) No Credit Party nor any Subsidiary thereof has received any notice of violation, alleged  violation, non-compliance, liability or potential liability regarding environmental matters, Hazardous  Materials, or compliance with applicable Environmental Laws that, if adversely determined, could  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, nor does  any Credit Party or any Subsidiary thereof have knowledge or reason to believe that any such notice  will be received or is being threatened;  (d) To its knowledge, Hazardous Materials have not been transported or disposed of to or  from the properties owned, leased or operated by any Credit Party or any Subsidiary thereof in  violation of, or in a manner or to a location which could give rise to liability under, applicable  Environmental Laws, nor have any Hazardous Materials been generated, treated, stored or disposed of  at, on or under any of such properties in violation of, or in a manner that could give rise to liability  under, any applicable Environmental Laws that could reasonably be expected, individually or in the  aggregate, to have a Material Adverse Effect;  (e) No judicial proceedings or governmental or administrative action is pending, or, to the  knowledge of the Borrower, threatened, under any Environmental Law to which any Credit Party or  any Subsidiary thereof is or will be named as a potentially responsible party, nor are there any consent  decrees or other decrees, consent orders, administrative orders or other orders, or other administrative  or judicial requirements outstanding under any applicable Environmental Law with respect to any  Credit Party, any Subsidiary thereof, with respect to any real property owned, leased or operated by  any Credit Party or any Subsidiary thereof or operations conducted in connection therewith that could  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and  (f) There has been no release, or to its knowledge, threat of release, of Hazardous Materials  at or from properties owned, leased or operated by any Credit Party or any Subsidiary, now or in the  past, in violation of or in amounts or in a manner that could give rise to liability under applicable  Environmental Laws that could reasonably be expected, individually or in the aggregate, to have a  Material Adverse Effect.  SECTION 7.9 Employee Benefit Matters.  (a) [Reserved];  (b) Each Credit Party and each ERISA Affiliate is in compliance with all applicable  provisions of ERISA, the Code and the regulations and published interpretations thereunder with  respect to all Employee Benefit Plans except for any required amendments for which the remedial  





 






    85  142746705_6  amendment period as defined in Section 401(b) of the Code has not yet expired and except where a  failure to so comply could not reasonably be expected to have a Material Adverse Effect.  Each  Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been  determined by the IRS to be so qualified, and each trust related to such plan has been determined to be  exempt under Section 501(a) of the Code except for such plans that have not yet received  determination letters but for which the remedial amendment period for submitting a determination  letter has not yet expired.  No liability has been incurred by any Credit Party or any ERISA Affiliate  which remains unsatisfied for any taxes or penalties assessed with respect to any Employee Benefit  Plan or any Multiemployer Plan except for a liability that could not reasonably be expected to have a  Material Adverse Effect;  (c) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan  become subject to funding based benefit restrictions under Section 436 of the Code, nor has any  funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has any  Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and  owing as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any  Pension Plan on or prior to the due dates of such contributions under Sections 412 or 430 of the Code  or Section 302 of ERISA, nor has there been any event requiring any disclosure under  Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;  (d) Except where the failure of any of the following representations to be correct could not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Credit  Party nor any ERISA Affiliate has:  (i) engaged in a nonexempt prohibited transaction described in  Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which  remains outstanding other than the payment of premiums and there are no premium payments which  are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or  (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the  Code;  (e) No Termination Event has occurred or is reasonably expected to occur;  (f) Except where the failure of any of the following representations to be correct could not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no  proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or  investigation is existing or, to its knowledge, threatened concerning or involving (i) any employee  welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by  any Credit Party or any ERISA Affiliate, (ii) any Pension Plan or (iii) any Multiemployer Plan.  (g) No Credit Party nor any Subsidiary thereof is a party to any contract, agreement or  arrangement that could, solely as a result of the delivery of this Agreement or the consummation of  transactions contemplated hereby, result in the payment of any “excess parachute payment” within the  meaning of Section 280G of the Code.  (h) As of the Closing Date, the Borrower is not and will not be using “plan assets” (within  the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit  Plans in connection with the Loans, the Letters of Credit or the Commitments.  SECTION 7.10 Margin Stock.  No Credit Party nor any Subsidiary thereof is engaged  principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or  “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation  U of the Board of Governors of the Federal Reserve System).  No part of the proceeds of any of the Loans  





 






    86  142746705_6  or Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which  violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board of  Governors.  Following the application of the proceeds of each Extension of Credit, not more than twenty- five percent (25%) of the value of the assets (either of the Borrower only or of the Borrower and its  Subsidiaries on a Consolidated basis) subject to the provisions of Section 9.2 or Section 9.5 or subject to  any restriction contained in any agreement or instrument between the Borrower and any Lender or any  Affiliate of any Lender relating to Indebtedness in excess of the Threshold Amount will be “margin  stock”.  SECTION 7.11 Government Regulation.  No Credit Party nor any Subsidiary thereof is an  “investment company” or a company “controlled” by an “investment company” (as each such term is  defined or used in the Investment Company Act of 1940) and no Credit Party nor any Subsidiary thereof  is, or after giving effect to any Extension of Credit will be, subject to regulation under the Interstate  Commerce Act, or any other Applicable Law which limits its ability to incur or consummate the  transactions contemplated hereby.  SECTION 7.12 Employee Relations.  As of the Closing Date, no Credit Party is party to any  collective bargaining agreement, nor has any labor union been recognized as the representative of its  employees except as set forth on Schedule 7.12.  The Borrower knows of no pending, threatened or  contemplated strikes, work stoppage or other collective labor disputes involving its employees or those of  its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material  Adverse Effect.  SECTION 7.13 Burdensome Provisions.  The Credit Parties and their respective Subsidiaries  do not presently anticipate that future expenditures needed to meet the provisions of any statutes, orders,  rules or regulations of a Governmental Authority will be so burdensome as to have a Material Adverse  Effect.  No Subsidiary is party to any agreement or instrument or otherwise subject to any restriction or  encumbrance that restricts or limits its ability to make dividend payments or other distributions in respect  of its Equity Interests to the Borrower or any Subsidiary or to transfer any of its assets or properties to the  Borrower or any other Subsidiary in each case other than existing under or by reason of the Loan  Documents or Applicable Law.  SECTION 7.14 Financial Statements.  The audited and unaudited financial statements (i)  delivered pursuant to Section 6.1(e)(i)(A) with respect to the Borrower and its Subsidiaries (other than  NIC and its Subsidiaries), are complete and correct and fairly present on a Consolidated basis the assets,  liabilities and financial position of the Borrower and its Subsidiaries (other than NIC and its Subsidiaries)  as at such dates, and the results of the operations and changes of financial position for the periods then  ended (other than customary year-end adjustments for unaudited financial statements and the absence of  footnotes from unaudited financial statements) and (ii) delivered pursuant to Section 6.1(e)(i)(B) with  respect to NIC and its Subsidiaries, to the best of its knowledge, are complete and correct and fairly  present on a Consolidated basis the assets, liabilities and financial position of NIC and its Subsidiaries as  at such dates, and the results of the operations and changes of financial position for the periods then ended  (other than customary year-end adjustments for unaudited financial statements and the absence of  footnotes from unaudited financial statements). All such financial statements, including the related  schedules and notes thereto, have been prepared in accordance with GAAP.  Such financial statements  show all material indebtedness and other material liabilities, direct or contingent, of (A) the Borrower and  its Subsidiaries (other than NIC and its Subsidiaries) or (B) to the best of its knowledge, NIC and its  Subsidiaries, as applicable, in each case as of the date thereof, including material liabilities for taxes,  material commitments, and Indebtedness, in each case, to the extent required to be disclosed under  GAAP.  The projections delivered pursuant to Section 6.1(e)(i)(C) and were prepared in good faith on the  basis of the assumptions stated therein, which assumptions are believed to be reasonable in light of then  





 






    87  142746705_6  existing conditions except that such financial projections and statements shall be subject to normal year  end closing and audit adjustments (it being recognized by the Lenders that projections are not to be  viewed as facts and that the actual results during the period or periods covered by such projections may  vary from such projections).  SECTION 7.15 No Material Adverse Change.  Since December 31, 2020, there has been no  material adverse change in the properties, business, operations, or condition (financial or otherwise) of the  Borrower and its Subsidiaries and no event has occurred or condition arisen, either individually or in the  aggregate, that could reasonably be expected to have a Material Adverse Effect.  SECTION 7.16 Solvency.  The Borrower is Solvent, and the Borrower and its Subsidiaries,  on a Consolidated basis, are Solvent.  SECTION 7.17 Title to Properties.  Each Credit Party and each Subsidiary thereof has such  title to the real property owned or leased by it as is necessary or desirable to the conduct of its business  and valid and legal title to all of its personal property and assets, except (a) those which have been  disposed of by the Credit Parties and their Subsidiaries subsequent to such date which dispositions have  been in the ordinary course of business or as otherwise expressly permitted hereunder and (b) where the  failure to have such title, individually or in the aggregate, could not reasonably be expected to have a  Material Adverse Effect.  SECTION 7.18 Litigation.  There are no actions, suits or proceedings pending nor, to its  knowledge, threatened against or in any other way relating adversely to or affecting any Credit Party or  any Subsidiary thereof or any of their respective properties in any court or before any arbitrator of any  kind or before or by any Governmental Authority that could reasonably be expected to have a Material  Adverse Effect.  SECTION 7.19 Insurance.  The Borrower and each Subsidiary maintains in effect insurance  that complies with the requirements of Section 8.6.    SECTION 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws; and Sanctions.    (a) None of (i) the Borrower, any Subsidiary or, to the knowledge of the Borrower or such  Subsidiary, any of their respective directors, officers, employees or affiliates, or (ii) to the knowledge of  any Credit Party, any agent or representative of the Borrower or any Subsidiary that will act in any  capacity in connection with or benefit from the Credit Facility, (A) is a Sanctioned Person or currently the  subject or target of any Sanctions, (B) has its assets located in a Sanctioned Country, (C) is under  administrative, civil or criminal investigation for an alleged violation of, or received notice from or made  a voluntary disclosure to any governmental entity regarding a possible violation of, Anti-Corruption  Laws, Anti-Money Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or  any Anti-Corruption Laws or Anti-Money Laundering Laws, or (D) directly or indirectly derives revenues  from investments in, or transactions with, Sanctioned Persons.    (b) Each of the Borrower and its Subsidiaries has implemented and maintains in effect  policies and procedures designed to ensure compliance by the Borrower and its Subsidiaries and their  respective directors, officers, employees, agents and Affiliates with the Anti-Corruption Laws, Anti- Money Laundering Laws and applicable Sanctions.    (c) Each of the Borrower and its Subsidiaries, and to the knowledge of the Borrower, each  director, officer, employee, agent and Affiliate of the Borrower and each such Subsidiary, is in  





 






    88  142746705_6  compliance with the Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions in all material  respects.  (d) No proceeds of any Extension of Credit have been used, directly or indirectly, by the  Borrower, any of its Subsidiaries or any of its or their respective directors, officers, employees and agents  (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, (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, including any payments (directly or indirectly) to a  Sanctioned Person or a Sanctioned Country or (iii) in any manner that would result in the violation of any  Sanctions applicable to any party hereto.  SECTION 7.21 Absence of Defaults.  No event has occurred or is continuing (a) which  constitutes a Default or an Event of Default, or (b) which constitutes, or which with the passage of time or  giving of notice or both would constitute, a default or event of default by any Credit Party or any  Subsidiary thereof under any judgment, decree or order to which any Credit Party or any Subsidiary  thereof is a party or by which any Credit Party or any Subsidiary thereof or any of their respective  properties may be bound or which would require any Credit Party or any Subsidiary thereof to make any  payment thereunder prior to the scheduled maturity date therefor that, in any case under this clause (b),  could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  SECTION 7.22 Senior Indebtedness Status.  The Obligations of each Credit Party under this  Agreement and each of the other Loan Documents ranks and shall continue to rank at least senior in  priority of payment to all Subordinated Indebtedness of each such Person and is designated as “Senior  Indebtedness” under all instruments and documents, now or in the future, relating to all Subordinated  Indebtedness of such Person.  SECTION 7.23 Disclosure.  The Borrower has disclosed to the Administrative Agent and the  Lenders all agreements, instruments and corporate or other restrictions to which any Credit Party and any  Subsidiary thereof are subject, and all other matters known to them, that, individually or in the aggregate,  could reasonably be expected to result in a Material Adverse Effect.  No financial statement, material  report, material certificate or other material information furnished (whether in writing or orally) by or on  behalf of any Credit Party or any Subsidiary thereof to the Administrative Agent or any Lender in  connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered  hereunder (as modified or supplemented by other information so furnished), taken together as a whole,  contains any untrue statement of a material fact or omits to state any material fact necessary to make the  statements therein, in the light of the circumstances under which they were made, not misleading;  provided that, with respect to projected financial information, pro forma financial information, estimated  financial information and other projected or estimated information, such information was prepared in  good faith based upon assumptions believed to be reasonable at the time (it being recognized by the  Lenders that projections are not to be viewed as facts and that the actual results during the period or  periods covered by such projections may vary from such projections).  As of the Closing Date, all of the  information included in the Beneficial Ownership Certification is true and correct.  ARTICLE VIII    AFFIRMATIVE COVENANTS  Until all of the Obligations (other than contingent indemnification obligations not then due) have  been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired and the  Commitments terminated, each Credit Party will, and will cause each of its Subsidiaries to:  





 






    89  142746705_6  SECTION 8.1 Financial Statements.  Deliver to the Administrative Agent, in form and  detail satisfactory to the Administrative Agent (which shall promptly make such information available to  the Lenders in accordance with its customary practice):  (a) Annual Financial Statements.  As soon as practicable and in any event within ninety (90)  days (or, if earlier, on the date of any required public filing thereof) after the end of each Fiscal Year  (commencing with the Fiscal Year ended December 31, 2021), an audited Consolidated and  consolidating balance sheet of the Borrower and its Subsidiaries as of the close of such Fiscal Year and  audited Consolidated and consolidating statements of income, retained earnings and cash flows  including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding  figures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP and,  if applicable, containing disclosure of the effect on the financial position or results of operations of any  change in the application of accounting principles and practices during the year.  Such annual financial  statements shall be audited by an independent certified public accounting firm of recognized national  standing acceptable to the Administrative Agent, and accompanied by a report and opinion thereon by  such certified public accountants prepared in accordance with generally accepted auditing standards  that is not subject to any “going concern” or similar qualification or exception or any qualification as  to the scope of such audit or with respect to accounting principles followed by the Borrower or any of  its Subsidiaries not in accordance with GAAP.  (b) Quarterly Financial Statements.  As soon as practicable and in any event within forty-five  (45) days (or, if earlier, on the date of any required public filing thereof) after the end of the first three  fiscal quarters of each Fiscal Year (commencing with the fiscal quarter ended March 31, 2021), an  unaudited Consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the  close of such fiscal quarter and unaudited Consolidated and consolidating statements of income,  retained earnings and cash flows and a report containing management’s discussion and analysis of  such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then  ended, including the notes thereto, all in reasonable detail setting forth in comparative form the  corresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year  and prepared by the Borrower in accordance with GAAP and, if applicable, containing disclosure of  the effect on the financial position or results of operations of any change in the application of  accounting principles and practices during the period, and certified by the chief financial officer of the  Borrower to present fairly in all material respects the financial condition of the Borrower and its  Subsidiaries on a Consolidated and consolidating basis as of their respective dates and the results of  operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal  year-end adjustments and the absence of footnotes.  SECTION 8.2 Certificates; Other Reports.  Deliver to the Administrative Agent (which  shall promptly make such information available to the Lenders in accordance with its customary practice):  (a) at each time financial statements are delivered pursuant to Sections 8.1(a) or (b) and at  such other times as the Administrative Agent shall reasonably request, a duly completed Officer’s  Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or  controller of the Borrower and a report containing management’s discussion and analysis of such  financial statements;  (b) at each time financial statements are delivered pursuant to Sections 8.1(a) or (b) and at  such other times as the Administrative Agent shall reasonably request, a certification of the  Consolidated EBITDA and aggregate net book value of the assets of the Borrower and its Subsidiaries  attributable to Immaterial Subsidiaries;  





 






    90  142746705_6  (c) at each time financial statements are delivered pursuant to Section 8.1(a), a certificate of  the independent certified public accountants of the Borrower certifying such financial statements that  in connection with their audit, nothing came to their attention that caused them to believe that the  Credit Parties failed to comply with the terms, covenants, provisions or conditions of Section 9.13,  insofar as they relate to financial and accounting matters or, if such is not the case, specifying such  non-compliance and its nature and period of existence;  (d) promptly upon receipt thereof, copies of all reports, if any, submitted to any Credit Party,  any Subsidiary thereof or any of their respective boards of directors by their respective independent  public accountants in connection with their auditing function, including, without limitation, any  management report and any management responses thereto;  (e) promptly after the furnishing thereof, copies of any statement or report furnished to any  holder of Indebtedness of any Credit Party or any Subsidiary thereof in excess of the Threshold  Amount pursuant to the terms of any indenture, loan or credit or similar agreement;  (f) promptly after the assertion or occurrence thereof, notice of any action or proceeding  against or of any noncompliance by any Credit Party or any Subsidiary thereof with any  Environmental Law that could reasonably be expected to have a Material Adverse Effect;  (g) promptly after the same are available, copies of each annual report, proxy or financial  statement or other report or communication sent to the stockholders of the Borrower, and copies of all  annual, regular, periodic and special reports and registration statements which the Borrower may file  or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national  securities exchange, and in any case not otherwise required to be delivered to the Administrative  Agent pursuant hereto;  (h) promptly, and in any event within five (5) Business Days after receipt thereof by any  Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from  the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation  or possible investigation or other inquiry by such agency regarding financial or other operational  results of any Credit Party or any Subsidiary thereof;  (i) 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 by the Administrative Agent or any Lender; and  (j) such other information regarding the operations, business affairs and financial condition  of any Credit Party or any Subsidiary thereof as the Administrative Agent or any Lender may  reasonably request.  Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(f) or (g) (to the extent  any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the  Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at  the website address listed in Section 12.1; or (ii) on which such documents are posted on the Borrower’s  behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have  access (whether a commercial, third-party website or whether sponsored by the Administrative Agent);  provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent  or any Lender that requests the Borrower to deliver such paper copies until a written request to cease  





 






    91  142746705_6  delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall  notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any  such documents and provide to the Administrative Agent by electronic mail electronic versions of such  documents.  Notwithstanding anything contained herein, upon request from the Administrative Agent, the  Borrower shall provide paper copies of the Officer’s Compliance Certificates required by Section 8.2 to  the Administrative Agent.  Except for such Officer’s Compliance Certificates, the Administrative Agent  shall have no obligation to request the delivery or to maintain copies of the documents referred to above,  and in any event shall have no responsibility to monitor compliance by the Borrower with any such  request for delivery, and each Lender shall be solely responsible for requesting delivery to it or  maintaining its copies of such documents.  The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make  available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of  the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the  Platform and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to  receive material non-public information with respect to the Borrower or its securities) (each, a “Public  Lender”).  The Borrower hereby agrees that it will use commercially reasonable efforts to identify that  portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such  Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means  that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower  Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the  Arrangers, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any  material non-public information (although it may be sensitive and proprietary) with respect to the  Borrower or its securities for purposes of United States Federal and state securities laws (provided,  however, that to the extent such Borrower Materials constitute Information, they shall be treated as set  forth in Section 12.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available  through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the  Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being  suitable only for posting on a portion of the Platform not designated “Public Investor.”    SECTION 8.3 Notice of Litigation and Other Matters.  Promptly (but in no event later than  ten (10) days after any Responsible Officer of any Credit Party obtains knowledge thereof) notify the  Administrative Agent in writing of (which shall promptly make such information available to the Lenders  in accordance with its customary practice):  (a) the occurrence of any Default or Event of Default;  (b) the commencement of all proceedings and investigations by or before any Governmental  Authority and all actions and proceedings in any court or before any arbitrator against or involving any  Credit Party or any Subsidiary thereof or any of their respective properties, assets or businesses in each  case that if adversely determined could reasonably be expected to result in a Material Adverse Effect;  (c) any notice of any violation received by any Credit Party or any Subsidiary thereof from  any Governmental Authority including, without limitation, any notice of violation of applicable  Environmental Laws which in any such case could reasonably be expected to have a Material Adverse  Effect;  (d) any labor controversy that has resulted in a strike or other work action against any Credit  Party or any Subsidiary thereof that could reasonably be expected, individually or in the aggregate, to  have a Material Adverse Effect;  





 






    92  142746705_6  (e) any attachment, judgment, lien, levy or order exceeding the Threshold Amount that may  be assessed against any Credit Party or any Subsidiary thereof;  (f) (i) any unfavorable determination letter from the IRS regarding the qualification of an  Employee Benefit Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all notices  received by any Credit Party or any ERISA Affiliate of the PBGC’s intent to terminate any Pension  Plan or to have a trustee appointed to administer any Pension Plan, (iii) all notices received by any  Credit Party or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or  amount of withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining  knowledge or reason to know that any Credit Party or any ERISA Affiliate has filed or intends to file a  notice of intent to terminate any Pension Plan under a distress termination within the meaning of  Section 4041(c) of ERISA; and  (g) any event which makes any of the representations set forth in Article VII that is subject to  materiality or Material Adverse Effect qualifications inaccurate in any respect or any event which  makes any of the representations set forth in Article VII that is not subject to materiality or Material  Adverse Effect qualifications inaccurate in any material respect.  Each notice pursuant to Section 8.3 shall be accompanied by a statement of a Responsible Officer  of the Borrower setting forth details of the occurrence referred to therein and stating what action the  Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 8.3(a)  shall describe with particularity any and all provisions of this Agreement and any other Loan Document  that have been breached.  SECTION 8.4 Preservation of Corporate Existence and Related Matters.  Except as  permitted by Section 9.4, preserve and maintain its separate corporate existence and all rights, franchises,  licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a  foreign corporation or other entity and authorized to do business in each jurisdiction in which the failure  to so qualify could reasonably be expected to have a Material Adverse Effect.  SECTION 8.5 Maintenance of Property and Licenses.  (a) Protect and preserve all Properties necessary in and material to its business, including  material copyrights, patents, trade names, service marks and trademarks; maintain in good working  order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real  and personal property; and from time to time make or cause to be made all repairs, renewals and  replacements thereof and additions to such Property necessary for the conduct of its business, so that  the business carried on in connection therewith may be conducted in a commercially reasonable  manner, in each case except as such action or inaction would not reasonably be expected to result in a  Material Adverse Effect.  (b) Maintain, in full force and effect in all material respects, each and every material license,  permit, certification, qualification, approval or franchise issued by any Governmental Authority (each  a “License”) required for each of them to conduct their respective businesses as presently conducted.  SECTION 8.6 Insurance.  Maintain insurance with financially sound and reputable  insurance companies against at least such risks and in at least such amounts as are customarily maintained  by similar businesses and as may be required by Applicable Law.  The Borrower shall, from time to time  upon reasonable request, deliver to the Administrative Agent information in reasonable detail as to 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.    





 






    93  142746705_6  SECTION 8.7 Accounting Methods and Financial Records.  Maintain a system of  accounting, and keep proper books, records and accounts (which shall be true and complete in all material  respects) as may be required or as may be necessary to permit the preparation of financial statements in  accordance with GAAP and in compliance with the regulations of any Governmental Authority having  jurisdiction over it or any of its Properties.  SECTION 8.8 Payment of Taxes and Other Obligations.  Pay and perform (a) all material  taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its  Property; provided, that the Borrower or such Subsidiary may contest any item described in this clause (a)  in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP  and (b) except where the failure to pay or perform such items described in this clause (b) could not  reasonably be expected to have a Material Adverse Effect, all other Indebtedness, obligations and  liabilities in accordance with customary trade practices.  SECTION 8.9 Compliance with Laws and Approvals.  Observe and remain in compliance  with all Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case  applicable to the conduct of its business, except where the failure to do so could not reasonably be  expected to have a Material Adverse Effect.  SECTION 8.10 Environmental Laws.  In addition to and without limiting the generality of  Section 8.9, except where the failure to so comply could not, individually or in the aggregate, reasonably  be expected to have a Material Adverse Effect, (a) comply with, and ensure such compliance by all  tenants and subtenants with all applicable Environmental Laws and obtain and comply with and maintain,  and ensure that all tenants and subtenants, if any, obtain and comply with and maintain, any and all  licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws and  (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and  other actions required under applicable Environmental Laws, and promptly comply with all lawful orders  and directives of any Governmental Authority regarding applicable Environmental Laws.  SECTION 8.11 Compliance with ERISA.  In addition to and without limiting the generality  of Section 8.9, (a) except where the failure to so comply could not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect, (i) comply with applicable provisions of  ERISA, the Code and the regulations and published interpretations thereunder with respect to all  Employee Benefit Plans, (ii) not take any action or fail to take action the result of which could reasonably  be expected to result in a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any  prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and (iv)  operate each Employee Benefit Plan in such a manner that will not incur any tax liability under  Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B of the  Code and (b) furnish to the Administrative Agent upon the Administrative Agent’s request such  additional information about any Employee Benefit Plan as may be reasonably requested by the  Administrative Agent.  SECTION 8.12 Visits and Inspections.  Permit representatives of the Administrative Agent or  any Lender, from time to time upon prior reasonable notice and at such times during normal business  hours, all at the expense of the Borrower, to visit and inspect its properties; inspect, audit and make  extracts from its books, records and files, including, but not limited to, management letters prepared by  independent accountants; and discuss with its principal officers, and its independent accountants, its  business, assets, liabilities, financial condition, results of operations and business prospects; provided that  excluding any such visits and inspections during the continuation of an Event of Default, the  Administrative Agent shall not exercise such rights more often than once per fiscal year at the Borrower’s  expense; provided further that upon the occurrence and during the continuance of an Event of Default, the  





 






    94  142746705_6  Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrower at any  time during normal business hours without advance notice.    SECTION 8.13 Additional Subsidiaries.  (a) Additional Domestic Subsidiaries.  Promptly (and, in any event, within ninety (90) days,  as such time period may be extended by the Administrative Agent in its sole discretion) (x) after the  creation or acquisition (including by division) of any Person that becomes a Subsidiary (other than an  Excluded Subsidiary) or (y) after any Domestic Subsidiary ceases to be an Excluded Subsidiary, cause  such Person to (i) become a Subsidiary Guarantor by delivering to the Administrative Agent a duly  executed supplement to the Guaranty Agreement or such other document as the Administrative Agent  shall deem appropriate for such purpose, (ii)  deliver to the Administrative Agent such opinions,  documents and certificates referred to in Section 6.1 as may be reasonably requested by the  Administrative Agent, (iii)  deliver to the Administrative Agent such updated Schedules to the Loan  Documents as requested by the Administrative Agent with respect to such Person, and (iv) deliver to  the Administrative Agent such other documents as may be reasonably requested by the Administrative  Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent.  (b) Merger Subsidiaries.  Notwithstanding the foregoing, to the extent any new Subsidiary is  created solely for the purpose of consummating a merger transaction pursuant to a Permitted  Acquisition, and such new Subsidiary at no time holds any assets or liabilities other than any merger  consideration contributed to it contemporaneously with the closing of such merger transaction, such  new Subsidiary shall not be required to take the actions set forth in Section 8.13(a) until the  consummation of such Permitted Acquisition (at which time, the surviving entity of the respective  merger transaction shall be required to so comply with Section 8.13(a) within ninety (90) days of the  consummation of such Permitted Acquisition, as such time period may be extended by the  Administrative Agent in its sole discretion).  (c) Immaterial Subsidiaries.  If at any time after a Responsible Officer of the Borrower  obtains knowledge that the Subsidiaries that constitute Immaterial Subsidiaries account for, in the  aggregate, more than (i) fifteen percent (15%) of the aggregate net book value of the assets of the  Borrower and its Subsidiaries or (ii) fifteen percent (15%) of the Consolidated revenue, then the  Borrower shall, (1) at each time financial statements are delivered pursuant to (x) Section 8.1(a) for the  Fiscal Quarter ending June 30th of each Fiscal Year and (y) Section 8.1(b) for each Fiscal Year and (2)  concurrently with the consummation of each Permitted Acquisition, (A) identify in writing to the  Administrative Agent one or more Subsidiaries to be removed from its designation as an Immaterial  Subsidiary so that the Subsidiaries constituting Immaterial Subsidiaries account for, in the aggregate,  not more than (1) fifteen percent (15%) of the aggregate net book value of the assets of the Borrower  and its Subsidiaries and (2) fifteen percent (15%) of the Consolidated revenue and (B) cause such  identified Subsidiaries to comply with the applicable provisions of Section 8.13(a) within the time  provided therein.  SECTION 8.14 Use of Proceeds.  (a) Use the proceeds of (i) the Necessary Closing Funds (A) to fund a portion of the purchase  price of the NIC Acquisition, (B) to refinance certain Indebtedness of the Borrower and its  Subsidiaries, including, without limitation, the Existing Credit Agreement and (C) to pay fees,  commissions and expenses in connection with the Transactions, and (ii) the Revolving Credit Loans,  the Swingline Loans and the Letters of Credit, for working capital and general corporate purposes,  including, without limitation, in each case to the extent permitted hereunder, capital expenditures,  Permitted Acquisitions and Restricted Payments, of the Borrower and its Subsidiaries.  





 






    95  142746705_6  (b) Use the proceeds of any Incremental Term Loan and any Incremental Revolving Credit  Increase as permitted pursuant to Section 5.15, as applicable.  (c) Not request any Extension 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 Extension of Credit, directly or 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, (iii) in any manner that would result in the violation of any  Sanctions applicable to any party hereto or (iv) for purchasing or carrying margin stock (within the  meaning of Regulation T, U or X of the FRB) or for any purpose which violates the provisions of  Regulation T, U or X of the FRB (it being agreed that the Borrower shall promptly furnish to the  Administrative Agent and each requesting Lender a statement in conformity with the requirements of  Form G-3 or Form U-1, as applicable, under Regulation U of the FRB).  SECTION 8.15 Compliance with Anti-Corruption Laws and Sanctions.  (a) Maintain in  effect and enforce policies and procedures designed to ensure compliance by the Borrower, its  Subsidiaries and their respective directors, officers, employees and agents with all Anti-Corruption Laws,  Anti-Money Laundering Laws and applicable Sanctions, (b) notify the Administrative Agent and each  Lender that previously received a Beneficial Ownership Certification 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 (c) 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 8.16 Corporate Governance.  (a) Maintain entity records and books of account  separate from those of any other entity which is an Affiliate of such entity, (b) not commingle its funds or  assets with those of any other entity which is an Affiliate of such entity (except pursuant to cash  management systems reasonably acceptable to the Administrative Agent) and (c) provide that its board of  directors (or equivalent governing body) will hold all appropriate meetings to authorize and approve such  entity’s actions, which meetings will be separate from those of any other entity which is an Affiliate of  such entity.  For the purposes of this Section 8.16, “Affiliate” shall not include the Borrower or any  Subsidiary thereof.  SECTION 8.17 Further Assurances.  Execute any and all further documents, agreements and  instruments, and take all such further actions, which may be required under any Applicable Law, or which  the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions  contemplated by the Loan Documents.  ARTICLE IX    NEGATIVE COVENANTS  Until all of the Obligations (other than contingent, indemnification obligations not then due) have  been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired and the  Commitments terminated, the Credit Parties will not, and will not permit any of their respective  Subsidiaries to:  





 






    96  142746705_6  SECTION 9.1 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness  except:  (a) the Obligations;  (b) Indebtedness (i) owing under Hedge Agreements entered into in order to manage existing  or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes  and (ii) owing under Guaranteed Cash Management Agreements entered into the ordinary course of  business;  (c) Indebtedness existing on the Closing Date and listed on Schedule 9.1, and any  refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such  Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except  by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses  reasonably incurred, in connection with such refinancing and by an amount equal to any existing  commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such  refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the  Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing,  refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms  at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than  the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount  not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;  (d) Capital Lease Obligations and Indebtedness incurred by the Borrower or any Domestic  Subsidiary in connection with purchase money Indebtedness in an aggregate amount not to exceed the  greater of (i) $100,000,000 and (ii) six and one-half percent (6.5%) of the Consolidated total assets of  the Borrower and its Subsidiaries as shown on the balance sheets of the Borrower most recently  delivered pursuant to Section 8.1(a) or 8.1(b), as applicable;  (e) Indebtedness of a Person existing at the time such Person became a Domestic Subsidiary  or assets were acquired by the Borrower or any Domestic Subsidiary from such Person in connection  with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not  incurred in connection with, or in contemplation of, such Person becoming a Domestic Subsidiary or  the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such  Person or any other Person that such Person merges with or that acquires the assets of such Person)  shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate  outstanding principal amount of such Indebtedness does not exceed $70,000,000 at any time  outstanding;  (f) Guarantees with respect to Indebtedness permitted pursuant to subsections (a) through (e)  of this Section;  (g) unsecured intercompany Indebtedness:  (i)  owed by any Credit Party to another Credit Party;  (ii)  owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such  Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the  Administrative Agent); and  





 






    97  142746705_6  (iii) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;  and  (iv)  owed by any Non-Guarantor Subsidiary to any Credit Party to the extent  permitted pursuant to Section 9.3(a)(vi);  (h) Indebtedness arising from the honoring by a bank or other financial institution of a check,  draft or other similar instrument drawn against insufficient funds in the ordinary course of business;  (i) Subordinated Indebtedness of the Borrower and or any Subsidiary Guarantor; provided,  that in the case of each incurrence of such Subordinated Indebtedness, (i) no Default or Event of  Default shall have occurred and be continuing or would be caused by the incurrence of such  Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written  evidence that the Borrower would be in compliance with the financial covenants set forth in  Section 9.13 on a Pro Forma Basis after giving effect to the issuance of any such Subordinated  Indebtedness;  (j) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds,  statutory obligations or with respect to workers’ compensation claims, in each case incurred in the  ordinary course of business, and reimbursement obligations in respect of any of the foregoing;  (k) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed  $100,000,000 at any time outstanding;  (l) unsecured Indebtedness of the Borrower or any Subsidiary Guarantor thereof not  otherwise permitted pursuant to this Section; provided that (i) the Borrower shall be in compliance  with the financial covenants set forth in Section 9.13, in each case on a Pro Forma Basis (based on the  financial statements for the most recent fiscal quarter end for which financial statements have been  provided) immediately after giving effect to the incurrence of such Indebtedness, (ii) the final maturity  of such Indebtedness shall not be prior to the date that is ninety-one (91) days after the Latest Maturity  Date, (iii) such Indebtedness will not have mandatory prepayment or mandatory amortization,  redemption, sinking fund or similar prepayments (other than asset sale, change of control, fundamental  change or similar mandatory offers to repurchase customary for high-yield or convertible debt  securities, including settling such repurchases with cash) prior to the date that is ninety-one (91) days  after the Latest Maturity Date at the time of the issuance of such Indebtedness, (iv) such Indebtedness  is not guaranteed by any Domestic Subsidiary that is not a Subsidiary Guarantor, (v) to the extent such  Indebtedness is subordinated in right of payment to the Obligations, any guaranty thereof by the Credit  Parties shall be expressly subordinated to the Guaranteed Obligations on terms materially not less  favorable to the Lenders than the subordination terms of such Indebtedness, (vi) other than as set forth  in clauses (ii) and (iii) above, the terms of such Indebtedness, taken as a whole, are no more restrictive  on the Borrower and its Subsidiaries than the terms of the Loan Documents, taken as a whole, and (vii)  no Event of Default shall have occurred and be continuing or result from the incurrence of such  Indebtedness; and   (m) other Indebtedness of any Credit Party or any Domestic Subsidiary thereof not otherwise  permitted pursuant to this Section in an aggregate principal amount not to exceed $100,000,000 at any  time outstanding; provided that, immediately before and immediately after giving pro forma effect to  any secured Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing and  (ii) the Borrower shall have demonstrated compliance (based on the financial statements for the most  recent fiscal quarter end for which financial statements have been provided) with the financial  covenants set forth in Section 9.13.  





 






    98  142746705_6  SECTION 9.2 Liens.  Create, incur, assume or suffer to exist, any Lien on or with respect to  any of its Property, whether now owned or hereafter acquired, except:  (a) Liens created pursuant to the Loan Documents (including, without limitation, Liens in  favor of the Swingline Lender and/or the Issuing Lender, as applicable, on Cash Collateral granted  pursuant to the Loan Documents);  (b) Liens in existence on the Closing Date and described on Schedule 9.2, and the  replacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist in  connection with any refinancing, refunding, renewal or extension of Indebtedness pursuant to  Section 9.1(c) (solely to the extent that such Liens were in existence on the Closing Date and described  on Schedule 9.2)); provided that the scope of any such Lien shall not be increased, or otherwise  expanded, to cover any additional property or type of asset, as applicable, beyond that in existence on  the Closing Date, except for products and proceeds of the foregoing;  (c) Liens for taxes, assessments and other governmental charges or levies (excluding any  Lien imposed pursuant to any of the provisions of ERISA or applicable Environmental Laws) (i) not  yet due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has  not expired or (ii) which are being contested in good faith and by appropriate proceedings if adequate  reserves are maintained to the extent required by GAAP;  (d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords  for labor, materials, supplies or rentals incurred in the ordinary course of business, which (i) are not  overdue for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no action  has been taken to enforce such Liens and such Liens are being contested in good faith and by  appropriate proceedings if adequate reserves are maintained to the extent required by GAAP and  (ii) do not, individually or in the aggregate, materially impair the use thereof in the operation of the  business of the Borrower or any of its Subsidiaries;  (e) deposits or pledges made in the ordinary course of business in connection with, or to  secure payment of, obligations under workers’ compensation, unemployment insurance and other  types of social security or similar legislation, or to secure the performance of bids, trade contracts and  leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to  judgments or litigation), performance bonds and other obligations of a like nature incurred in the  ordinary course of business;  (f) encumbrances in the nature of zoning restrictions, easements and rights or restrictions of  record on the use of real property, which in the aggregate are not substantial in amount and which do  not, in any case, detract from the value of such property or impair the use thereof in the ordinary  conduct of business;  (g) Liens arising from the filing of precautionary UCC financing statements relating solely to  personal property leased pursuant to operating leases entered into in the ordinary course of business of  the Borrower and its Subsidiaries;  (h) Liens securing Indebtedness permitted under Section 9.1(d); provided that (i) such Liens  shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as  applicable, of the related Property, (ii) such Liens do not at any time encumber any property other than  the Property financed by such Indebtedness and (iii)  the principal amount of Indebtedness secured by  any such Lien shall at no time exceed one hundred percent (100%) of the original price for the  





 






    99  142746705_6  purchase, repair improvement or lease amount (as applicable) of such Property at the time of purchase,  repair, improvement or lease (as applicable);  (i) Liens securing judgments for the payment of money not constituting an Event of Default  under Section 10.1(l) or securing appeal or other surety bonds relating to such judgments;  (j) Liens on Property (i) of any Subsidiary which are in existence at the time that such  Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) of the Borrower or any of its  Subsidiaries existing at the time such tangible property or tangible assets are purchased or otherwise  acquired by the Borrower or such Subsidiary thereof pursuant to a transaction permitted pursuant to  this Agreement; provided that, with respect to each of the foregoing clauses (i) and (ii), (A) such Liens  are not incurred in connection with, or in anticipation of, such Permitted Acquisition, purchase or other  acquisition, (B) such Liens are applicable only to specific Property, (C) such Liens are not “blanket” or  all asset Liens, (D) such Liens do not attach to any other Property of the Borrower or any of its  Subsidiaries and (E) the Indebtedness secured by such Liens is permitted under Section 9.1(e) of this  Agreement (provided that, for purposes of this Section 9.2(j), the aggregate amount of Indebtedness  under Section 9.1(e) which is secured by such Liens shall not to exceed $50,000,000 at any time  outstanding);  (k) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4- 210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any  depositary bank in connection with statutory, common law and contractual rights of set-off and  recoupment with respect to any deposit account of the Borrower or any Subsidiary thereof;  (l) (i) contractual or statutory Liens of landlords to the extent relating to the property and  assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers  (including sellers of goods) or customers granted in the ordinary course of business to the extent  limited to the property or assets relating to such contract;  (m) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any  assets under any license or lease agreement entered into in the ordinary course of business which do  not (i) interfere in any material respect with the business of the Borrower or its Subsidiaries or  materially detract from the value of the relevant assets of the Borrower or its Subsidiaries or (ii) secure  any Indebtedness; and  (n) Liens not otherwise permitted hereunder securing Indebtedness or other obligations in the  aggregate principal amount not to exceed $50,000,000 at any time outstanding.  SECTION 9.3 Investments.  Purchase, own, invest in or otherwise acquire (in one  transaction or a series of transactions), directly or indirectly, any Equity Interests, interests in any  partnership or joint venture (including, without limitation, the creation or capitalization of any  Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a portion of the  business or assets of any other Person or any other investment or interest whatsoever in any other Person,  or make, hold or otherwise permit to exist, directly or indirectly, any loans, advances or extensions of  credit to, or any investment in cash or by delivery of Property in, any Person (all the foregoing,  “Investments”) except:  (a) (i)  Investments existing on the Closing Date in Subsidiaries existing on the Closing  Date;  





 






    100  142746705_6  (ii)  Investments existing on the Closing Date (other than Investments in Subsidiaries  existing on the Closing Date) and described on Schedule 9.3;  (iii)  Investments made after the Closing Date by any Credit Party in any other Credit  Party;  (iv) Investments made after the Closing Date by any Non-Guarantor Subsidiary in  any other Non-Guarantor Subsidiary;   (v) Investments made after the Closing Date by any Non-Guarantor Subsidiary in  any Credit Party; and  (vi) Investments made after the Closing Date by any Credit Party in any Non- Guarantor Subsidiary in an aggregate amount at any time outstanding not to exceed (A)  $25,000,000 less (B) the amount of outstanding Investments made pursuant to Section 9.3(f)(ii)  (provided that any Investments in the form of loans or advances made by any Credit Party to any  Non-Guarantor Subsidiary pursuant to this clause (vi) shall be evidenced by a demand note in  form and substance reasonably satisfactory to the Administrative Agent);  (b) Investments in cash and Cash Equivalents;  (c) deposits made in the ordinary course of business to secure the performance of leases or  other obligations as permitted by Section 9.2;  (d) Hedge Agreements permitted pursuant to Section 9.1;  (e) purchases of assets in the ordinary course of business;  (f) Investments by the Borrower or any Subsidiary thereof in the form of:  (i)  Permitted Acquisitions to the extent that any Person or Property acquired in such  Acquisition becomes a part of the Borrower or a Subsidiary Guarantor or becomes (whether or  not such Person is a Wholly-Owned Subsidiary) a Subsidiary Guarantor in the manner  contemplated by Section 8.13; and  (ii)  Permitted Acquisitions to the extent that any Person or Property acquired in such  Acquisition does not become a Subsidiary Guarantor or a part of a Subsidiary Guarantor;  provided that, immediately prior to giving effect to any such Permitted Acquisition, the  Administrative Agent and the Lenders shall have received from the Borrower an Officer’s  Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the  Administrative Agent, that after giving effect to any such Permitted Acquisition and determined  on a Pro Forma Basis with respect thereto, the Consolidated EBITDA of all Credit Parties is  greater than fifty percent (50%) of the Consolidated EBITDA of all Credit Parties and their  Subsidiaries (including, without limitation, all Non-Guarantor Subsidiaries and the Person or  Property acquired in connection with such Permitted Acquisition);  (g) Investments in the form of loans and advances to officers, directors and employees in the  ordinary course of business in an aggregate amount not to exceed at any time outstanding $5,000,000  (determined without regard to any write-downs or write-offs of such loans or advances);  (h) Investments in the form of Restricted Payments permitted pursuant to Section 9.6;  





 






    101  142746705_6  (i) Guarantees permitted pursuant to Section 9.1;  (j) Investments consisting of extensions of credit in the nature of accounts receivable arising  from the grant of trade credit in the ordinary course of business, and Investments received in  satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent  reasonably necessary in order to prevent or limit loss; and  (k) Investments not otherwise permitted pursuant to this Section; provided that, immediately  before and immediately after giving pro forma effect to any such Investments and any Indebtedness  incurred in connection therewith, (i) no Default or Event of Default shall have occurred and be  continuing and (ii) the Borrower shall be in compliance with the financial covenants set forth in  Section 9.13, in each case on a Pro Forma Basis based on the financial statements for the most recent  fiscal quarter end for which financial statements have been provided.  For purposes of determining the amount of any Investment outstanding for purposes of this Section 9.3,  such amount shall be deemed to be the amount of such Investment when made, purchased or acquired  (without adjustment for subsequent increases or decreases in the value of such Investment) less any  amount realized in respect of such Investment upon the sale, collection or return of capital (not to exceed  the original amount invested).  SECTION 9.4 Fundamental Changes.  Merge, consolidate or enter into any similar  combination with, or enter into any Asset Disposition of all or substantially all of its assets (whether in a  single transaction or a series of transactions) with, any other Person or liquidate, wind-up or dissolve  itself (or suffer any liquidation or dissolution) except:  (a) (i) any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or  consolidated with or into the Borrower (provided that the Borrower shall be the continuing or  surviving entity) or (ii) any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated  or consolidated with or into any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall  be the continuing or surviving entity or simultaneously with such transaction, the continuing or  surviving entity shall become a Subsidiary Guarantor and the Borrower shall comply with Section 8.13  in connection therewith);  (b) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be merged,  amalgamated or consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary  and (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may be merged, amalgamated or  consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary that is a Domestic  Subsidiary;  (c) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary  liquidation, dissolution, winding up or otherwise) to the Borrower or any Subsidiary Guarantor;  provided that, with respect to any such disposition by any Non-Guarantor Subsidiary, the consideration  for such disposition shall not exceed the fair value of such assets;  (d) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may dispose of all or  substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any  other Non-Guarantor Subsidiary and (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary  may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up  or otherwise) to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary;  





 






    102  142746705_6  (e) any Wholly-Owned Subsidiary of the Borrower may merge with or into the Person such  Wholly-Owned Subsidiary was formed to acquire in connection with any acquisition permitted  hereunder (including, without limitation, any Permitted Acquisition permitted pursuant to  Section 9.3(g)); provided that in the case of any merger involving a Wholly-Owned Subsidiary that is a  Domestic Subsidiary, (i) a Subsidiary Guarantor shall be the continuing or surviving entity or (ii)  simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary  Guarantor and the Borrower shall comply with Section 8.13 in connection therewith; and  (f) any Person may merge into the Borrower or any of its Wholly-Owned Subsidiaries in  connection with a Permitted Acquisition permitted pursuant to Section 9.3(g); provided that (i) in the  case of a merger involving the Borrower or a Subsidiary Guarantor, the continuing or surviving Person  shall be the Borrower or such Subsidiary Guarantor and (ii) the continuing or surviving Person shall be  the Borrower or a Wholly-Owned Subsidiary of the Borrower.  SECTION 9.5 Asset Dispositions.  Make any Asset Disposition except:  (a) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of  the Borrower or any of its Subsidiaries;  (b) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary  course of business not interfering, individually or in the aggregate, in any material respect with the  conduct of the business of the Borrower and its Subsidiaries;  (c) leases, subleases, licenses or sublicenses of real or personal property granted by the  Borrower or any of its Subsidiaries to others in the ordinary course of business not detracting from the  value of such real or personal property or interfering in any material respect with the business of the  Borrower or any of its Subsidiaries;  (d) Asset Dispositions in connection with Insurance and Condemnation Events;  (e) Assets Dispositions in connection with transactions permitted by Section 9.4;   (f) Asset Dispositions in connection with the issuance and sale of notes constituting the  Permitted Convertible Indebtedness and any other Asset Disposition in connection with the conversion  of such notes constituting the Permitted Convertible Indebtedness; and  (g) Asset Dispositions not otherwise permitted pursuant to this Section; provided that (i) at  the time of such Asset Disposition, no Default or Event of Default shall exist or would result from  such Asset Disposition and (ii) for Asset Dispositions with an aggregate fair market value excess of  $100,000,000, such Asset Disposition is made for fair market value and the consideration received  shall be no less than 75% in cash, and (iii) the aggregate fair market value of all property disposed of  in reliance on this clause (f) shall not exceed 10% of the Consolidated total assets of the Borrower and  its Subsidiaries as shown on the balance sheets of the Borrower most recently delivered pursuant to  Section 8.1(a) or (b), as applicable, in any Fiscal Year.  SECTION 9.6 Restricted Payments.  Declare or pay any dividend on, or make any payment  or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or  indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption,  retirement or other acquisition of, any class of Equity Interests of any Credit Party or any Subsidiary  thereof, or make any distribution of cash, property or assets to the holders of shares of any Equity  





 






    103  142746705_6  Interests of any Credit Party or any Subsidiary thereof (all of the foregoing, the “Restricted Payments”)  provided that:  (a) so long as no Default or Event of Default has occurred and is continuing or would result  therefrom, the Borrower or any of its Subsidiaries may pay dividends in shares of its own Qualified  Equity Interests;  (b) any Subsidiary of the Borrower may pay cash dividends to the Borrower or any  Subsidiary Guarantor (and, if applicable, to other holders of its outstanding Qualified Equity Interests  on a pro rata basis);  (c) (i) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may make Restricted  Payments to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary (and, if applicable, to  other holders of its outstanding Equity Interests on a ratable basis) and (ii) any Non-Guarantor  Subsidiary that is a Foreign Subsidiary may make Restricted Payments to any other Non-Guarantor  Subsidiary (and, if applicable, to other holders of its outstanding Equity Interests on a ratable basis);  and  (d) the Borrower may declare and make Restricted Payments not otherwise permitted  pursuant to this Section 9.6; provided that, immediately before and immediately after the making of  any such Restricted Payment, (i) no Default or Event of Default shall have occurred and be continuing  and (ii) the Borrower shall be in compliance with the financial covenants set forth in Section 9.13, in  each case on a Pro Forma Basis based on the financial statements for the most recent fiscal quarter end  for which financial statements have been provided.  SECTION 9.7 Transactions with Affiliates.  Directly or indirectly enter into any transaction,  including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any  service or the payment of any management, advisory or similar fees, with (a) any officer, director, holder  of any Equity Interests in, or other Affiliate of the Borrower or any of its Subsidiaries or (b) any Affiliate  of any such officer, director or holder, other than:  (i) transactions permitted by Sections 9.1, 9.3, 9.4, 9.5, 9.6 and 9.12;  (ii) transactions existing on the Closing Date and described on Schedule 9.7;  (iii) transactions among Credit Parties;  (iv) other transactions in the ordinary course of business on terms as favorable as  would be obtained by it on a comparable arm’s-length transaction with an independent, unrelated  third party as determined in good faith by the board of directors (or equivalent governing body) of  the Borrower;  (v) employment and severance arrangements (including equity incentive plans and  employee benefit plans and arrangements) with their respective officers and employees in the  ordinary course of business; and  (vi) payment of customary fees and reasonable out of pocket costs to, and indemnities  for the benefit of, directors, officers and employees of the Borrower and its Subsidiaries in the  ordinary course of business to the extent attributable to the ownership or operation of the  Borrower and its Subsidiaries.  





 






    104  142746705_6  SECTION 9.8 Accounting Changes; Organizational Documents.  (a) Change its Fiscal Year end, or make (without the consent of the Administrative Agent)  any material change in its accounting treatment and reporting practices except as required by GAAP.  (b) Amend, modify or change its articles of incorporation (or corporate charter or other  similar organizational documents) or amend, modify or change its bylaws (or other similar documents)  in any manner materially adverse to the rights or interests of the Lenders.  SECTION 9.9 Payments and Modifications of Subordinated Indebtedness.  (a) Amend, modify, waive or supplement (or permit the modification, amendment, waiver or  supplement of) any of the terms or provisions of any Subordinated Indebtedness in any respect which  would materially and adversely affect the rights or interests of the Administrative Agent and Lenders  hereunder.  (b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value  (including, without limitation, (x) by way of depositing with any trustee with respect thereto money or  securities before due for the purpose of paying when due and (y) at the maturity thereof) any  Subordinated Indebtedness, except:  (i) refinancings, refundings, renewals, extensions or exchange of any Subordinated  Indebtedness permitted by Section 9.1(c), (g)(ii), (i), (l) or (m), and by any subordination  provisions applicable thereto;  (ii) payments and prepayments of any Subordinated Indebtedness made solely with  the proceeds of Qualified Equity Interests; and  (iii) the payment of interest, expenses and indemnities in respect of Subordinated  Indebtedness incurred under Section 9.1(c), (g)(ii), (i), (l) or (m) (other than any such payments  prohibited by any subordination provisions applicable thereto).  SECTION 9.10 No Further Negative Pledges; Restrictive Agreements.  (a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the  creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter  acquired, or requiring the grant of any security for such obligation if security is given for some other  obligation, except (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to any  document or instrument governing Indebtedness incurred pursuant to Section 9.1(d) (provided that any  such restriction contained therein relates only to the asset or assets financed thereby), (iii) customary  restrictions contained in the organizational documents of any Non-Guarantor Subsidiary as of the  Closing Date and (iv) customary restrictions in connection with any Permitted Lien or any document  or instrument governing any Permitted Lien (provided that any such restriction contained therein  relates only to the asset or assets subject to such Permitted Lien).  (b) Create or otherwise cause or suffer to exist or become effective any consensual  encumbrance or restriction on the ability of any Credit Party or any Subsidiary thereof to (i) pay  dividends or make any other distributions to any Credit Party or any Subsidiary on its Equity Interests  or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any  Indebtedness or other obligation owed to any Credit Party or (iii) make loans or advances to any Credit  





 






    105  142746705_6  Party, except in each case for such encumbrances or restrictions existing under or by reason of (A) this  Agreement and the other Loan Documents and (B) Applicable Law.  (c) Create or otherwise cause or suffer to exist or become effective any consensual  encumbrance or restriction on the ability of any Credit Party or any Subsidiary thereof to (i) sell, lease  or transfer any of its properties or assets to any Credit Party or (ii) act as a Credit Party pursuant to the  Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except in  each case for such encumbrances or restrictions existing under or by reason of (A) this Agreement and  the other Loan Documents, (B) Applicable Law, (C) any document or instrument governing  Indebtedness incurred pursuant to Section 9.1(d) (provided that any such restriction contained therein  relates only to the asset or assets acquired in connection therewith), (D) any Permitted Lien or any  document or instrument governing any Permitted Lien (provided that any such restriction contained  therein relates only to the asset or assets subject to such Permitted Lien), (E) obligations that are  binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of the Borrower, so  long as such obligations are not entered into in contemplation of such Person becoming a Subsidiary,  (F) customary restrictions contained in an agreement related to the sale of Property (to the extent such  sale is permitted pursuant to Section 9.5) that limit the transfer of such Property pending the  consummation of such sale, (G) customary restrictions in leases, subleases, licenses and sublicenses or  asset sale agreements otherwise permitted by this Agreement so long as such restrictions relate only to  the assets subject thereto and (H) customary provisions restricting assignment of any agreement  entered into in the ordinary course of business.  SECTION 9.11 Nature of Business.  Engage in any business other than the business  conducted by the Borrower and its Subsidiaries as of the Closing Date and business activities that are  reasonably related or ancillary thereto, are reasonable extensions thereof or are useful in the primary  business thereof.  SECTION 9.12 Sale Leasebacks.  Directly or indirectly become or remain liable as lessee or  as guarantor or other surety with respect to any lease, whether an operating lease, a finance lease or a  capital lease, of any Property (whether real, personal or mixed), whether now owned or hereafter  acquired, (a) which any Credit Party or any Subsidiary thereof has sold or transferred or is to sell or  transfer to a Person which is not another Credit Party or Subsidiary of a Credit Party or (b) which any  Credit Party or any Subsidiary of a Credit Party intends to use for substantially the same purpose as any  other Property that has been sold or is to be sold or transferred by such Credit Party or such Subsidiary to  another Person which is not another Credit Party or Subsidiary of a Credit Party in connection with such  lease.  SECTION 9.13 Financial Covenants.  (a) Consolidated Total Net Leverage Ratio.  As of the last day of any fiscal quarter ending  during the periods specified below, permit the Consolidated Total Net Leverage Ratio to be greater  than the corresponding ratio set forth below:  Period Maximum Ratio  First Amendment Effective Date  through September 30, 2021  4.25 to 1.00  October 1, 2021 through   September 30, 2022  4.00 to 1.00  October 1, 2022 and thereafter  3.50 to 1.00  





 






    106  142746705_6    (b) Consolidated Interest Coverage Ratio.  As of the last day of any fiscal quarter, permit the  Consolidated Interest Coverage Ratio to be less than 3.00 to 1.00.  SECTION 9.14 Disposal of Subsidiary Interests.  Permit any Domestic Subsidiary (other than  an Immaterial Subsidiary) to be a non-Wholly-Owned Subsidiary except as a result of or in connection  with a dissolution, merger, amalgamation, consolidation or disposition permitted by Section 9.4 or 9.5.  ARTICLE X    DEFAULT AND REMEDIES  SECTION 10.1 Events of Default.  Each of the following shall constitute an Event of  Default:  (a) Default in Payment of Principal of Loans and Reimbursement Obligations.  The  Borrower shall default in any payment of principal of any Loan or Reimbursement Obligation when  and as due (whether at maturity, by reason of acceleration or otherwise).  (b) Other Payment Default.  The Borrower shall default in the payment when and as due  (whether at maturity, by reason of acceleration or otherwise) of interest on any Loan or  Reimbursement Obligation or the payment of any other Obligation, and such default shall continue for  a period of three (3) Business Days.  (c) Misrepresentation.  Any representation, warranty, certification or statement of fact made  or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement, in  any other Loan Document, or in any document delivered in connection herewith or therewith that is  subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any  respect when made or deemed made or any representation, warranty, certification or statement of fact  made or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement,  any other Loan Document, or in any document delivered in connection herewith or therewith that is  not subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in  any material respect when made or deemed made.  (d) Default in Performance of Certain Covenants.  Any Credit Party or any Subsidiary  thereof shall default in the performance or observance of any covenant or agreement contained in  Sections 8.1, 8.2, 8.3, 8.4, 8.12, 8.13, 8.14, 8.15, 8.18 or Article IX.  (e) Default in Performance of Other Covenants and Conditions.  Any Credit Party or any  Subsidiary thereof shall default in the performance or observance of any term, covenant, condition or  agreement contained in this Agreement (other than as specifically provided for in this Section) or any  other Loan Document and such default shall continue for a period of thirty (30) days after the earlier of  (i) the Administrative Agent’s delivery of written notice thereof to the Borrower and (ii) a Responsible  Officer of any Credit Party having obtained knowledge thereof.  (f) Indebtedness Cross-Default.  Any Credit Party or any Subsidiary thereof shall (i) default  in the payment of any Indebtedness (other than the Loans or any Reimbursement Obligation) the  aggregate principal amount (including undrawn committed or available amounts), or with respect to  any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount  beyond the period of grace if any, provided in the instrument or agreement under which such  Indebtedness was created, or (ii) default in the observance or performance of any other agreement or  





 






    107  142746705_6  condition relating to any Indebtedness (other than the Loans or any Reimbursement Obligation) the  aggregate principal amount (including undrawn committed or available amounts), or with respect to  any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount  or contained in any instrument or agreement evidencing, securing or relating thereto or any other event  (other than any event which triggers any conversion right of holders of the Permitted Convertible  Indebtedness) shall occur or condition exist, the effect of which default or other event or condition is  to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of  such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, any such  Indebtedness to become due or be required to be prepaid, repurchased or redeemed, in each case prior  to its stated maturity (any applicable grace period having expired).  (g) Change in Control.  Any Change in Control shall occur.  (h) Voluntary Bankruptcy Proceeding.  Any Credit Party or any Subsidiary thereof shall  (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take  advantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate  manner any petition filed against it in an involuntary case under any Debtor Relief Laws, (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 as they become due,  (vi) make a general assignment for the benefit of creditors, or (vii) take any corporate action for the  purpose of authorizing any of the foregoing.  (i) Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced  against any Credit Party or any Subsidiary thereof in any court of competent jurisdiction seeking  (i) relief under any Debtor Relief Laws, or (ii) the appointment of a trustee, receiver, custodian,  liquidator or the like for any Credit Party or any Subsidiary thereof or for all or any substantial part of  their respective assets, domestic or foreign, and such case or proceeding shall continue without  dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested in  such case or proceeding (including, but not limited to, an order for relief under such federal  bankruptcy laws) shall be entered.  (j) Failure of Agreements.  Any provision of this Agreement or any provision of any other  Loan Document shall for any reason cease to be valid and binding on any Credit Party or any  Subsidiary thereof party thereto or any such Person shall so state in writing, in each case other than in  accordance with the express terms hereof or thereof.  (k) ERISA Events.  The occurrence of any of the following events: (i) any Credit Party or  any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions  of any Pension Plan or Sections 412 or 430 of the Code, any Credit Party or any ERISA Affiliate is  required to pay as contributions thereto and such unpaid amounts are in excess of the Threshold  Amount, (ii) a Termination Event or (iii) any Credit Party or any ERISA Affiliate as employers under  one or more Multiemployer Plans makes a complete or partial withdrawal from any such  Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing  employer that such employer has incurred a withdrawal liability requiring payments in an amount  exceeding the Threshold Amount.  (l) Judgment.  One or more judgments, orders or decrees shall be entered against any Credit  Party or any Subsidiary thereof by any court and continues without having been discharged, vacated or  stayed for a period of thirty (30) consecutive days after the entry thereof and such judgments, orders or  decrees (i) in the case of the payment of money, are individually or in the aggregate (not paid or fully  





 






    108  142746705_6  covered by insurance as to which the relevant insurance company has acknowledged coverage), equal  to or in excess of the Threshold Amount or (ii) in the case of injunctive or other non-monetary relief,  could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.  SECTION 10.2 Remedies.  Upon the occurrence and during the continuance of an Event of  Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of  the Required Lenders, the Administrative Agent shall, by notice to the Borrower:  (a) Acceleration; Termination of Credit Facility.  Terminate the Revolving Credit  Commitment and declare the principal of and interest on the Loans and the Reimbursement  Obligations at the time outstanding, and all other amounts owed to the Lenders and to the  Administrative Agent under this Agreement or any of the other Loan Documents (including, without  limitation, all L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of  Credit shall have presented or shall be entitled to present the documents required thereunder) and all  other Obligations, 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 each Credit Party, anything in this Agreement or the other Loan Documents to the  contrary notwithstanding, and terminate the Credit Facility and any right of the Borrower to request  borrowings or Letters of Credit thereunder; provided, that upon the occurrence of an Event of Default  specified in Section 10.1(h) or (i), the Credit Facility shall be automatically terminated and all  Obligations shall automatically become due and payable without presentment, demand, protest or  other notice of any kind, all of which are expressly waived by each Credit Party, anything in this  Agreement or in any other Loan Document to the contrary notwithstanding.  (b) Letters of Credit.  With respect to all Letters of Credit with respect to which presentment  for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph,  demand that the Borrower deposit in a Cash Collateral account opened by the Administrative Agent an  amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit.   Amounts held in such Cash Collateral account shall be applied by the Administrative Agent to the  payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such  Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay the  other Guaranteed Obligations in accordance with Section 10.3.  After all such Letters of Credit shall  have expired or been fully drawn upon, the Reimbursement Obligation shall have been satisfied and all  other Guaranteed Obligations shall have been paid in full, the balance, if any, in such Cash Collateral  account shall be returned to the Borrower.  (c) General Remedies.  Exercise on behalf of the Guaranteed Parties all of its other rights and  remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all  of the Guaranteed Obligations.  SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc.  (a) The enumeration of the rights and remedies of the Administrative Agent and the Lenders  set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative  Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or  remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given  hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or  by suit or otherwise.  No delay or failure to take action on the part of the Administrative Agent or any  Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any  single or partial exercise of any such right, power or privilege preclude any other or further exercise  thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver of any  





 






    109  142746705_6  Event of Default.  No course of dealing between the Borrower, the Administrative Agent and the  Lenders or their respective agents or employees shall be effective to change, modify or discharge any  provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event  of Default.  (b) 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 Credit 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 Section 10.2 for the benefit of all the Lenders and the  Issuing Lender; provided that the foregoing shall not prohibit (a) the Administrative Agent from  exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as  Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Lender or the  Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its  capacity as an Issuing Lender or Swingline Lender, as the case may be) hereunder and under the other  Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 12.4  (subject to the terms of Section 5.6), or (d) 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 Credit Party  under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as  Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders  shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 10.2 and (ii)  in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to  Section 5.6, any Lender may, with the consent of the Required Lenders, enforce any rights and  remedies available to it and as authorized by the Required Lenders.  SECTION 10.4 Crediting of Payments and Proceeds.  In the event that the Obligations have  been accelerated pursuant to Section 10.2 or the Administrative Agent or any Lender has exercised any  remedy set forth in this Agreement or any other Loan Document, all payments received on account of the  Guaranteed Obligations and all net proceeds from the enforcement of the Guaranteed Obligations shall be  applied by the Administrative Agent as follows:  First, 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 Issuing Lender in their capacity as such and the Swingline Lender in its capacity as such,  ratably among the Administrative Agent, the Issuing Lender and Swingline Lender in proportion to the  respective amounts described in this clause First payable to them;  Second, 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 Second payable to them;  Third, to payment of that portion of the Guaranteed Obligations constituting accrued and unpaid  interest on the Loans and Reimbursement Obligations, ratably among the Lenders in proportion to the  respective amounts described in this clause Third payable to them;  Fourth, to payment of that portion of the Guaranteed Obligations constituting unpaid principal of  the Loans, Reimbursement Obligations and payment obligations then owing under Guaranteed Hedge  Agreements and Guaranteed Cash Management Agreements, ratably among the Lenders, the Issuing  Lender, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts  described in this clause Fourth payable to them;  





 






    110  142746705_6  Fifth, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize any  L/C Obligations then outstanding; and  Last, 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 Guaranteed Cash  Management Agreements and Guaranteed Hedge Agreements 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 Cash  Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank  that, in either case, is 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.  SECTION 10.5 Administrative Agent May File Proofs of Claim.  In case of the pendency of  any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party,  the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then  be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the  Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered  (but not obligated) by intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing and  unpaid in respect of the Loans, L/C Obligations and all other Guaranteed Obligations that are owing  and unpaid and to file such other documents as may be necessary or advisable in order to have the  claims of the Lenders, the Issuing Lender and the Administrative Agent (including any claim for the  reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lender  and the Administrative Agent and their respective agents and counsel and all other amounts due the  Lenders, the Issuing Lender and the Administrative Agent under Sections 3.3, 5.3 and 12.3) allowed in  such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any such  claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the Issuing Lender to make such payments to  the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of  such payments directly to the Lenders and the Issuing Lender, to pay to the Administrative Agent any  amount due for the reasonable compensation, expenses, disbursements and advances of the  Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent  under Sections 3.3, 5.3 and 12.3.  ARTICLE XI    THE ADMINISTRATIVE AGENT  SECTION 11.1 Appointment and Authority.  Each of the Lenders and the Issuing Lender  hereby irrevocably appoints, designates and authorizes Wells Fargo to act on its behalf as the  Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative  Agent to take such actions on its behalf and to exercise such powers as are delegated to the  





 






    111  142746705_6  Administrative Agent by the terms hereof or thereof, together with such actions and powers as are  reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the  Administrative Agent, the Lenders and the Issuing Lender, and neither the Borrower nor any Subsidiary  thereof shall have rights as a third-party beneficiary of any of such provisions.  It is understood and  agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term)  with reference to 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 such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship between  contracting parties.   SECTION 11.2 Rights as a Lender.  The Person serving as the Administrative Agent  hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may  exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”  shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person  serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates  may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other  advisory capacity for and generally engage in any kind of banking, trust, financial advisory, underwriting,  capital markets or other business with the Borrower or any Subsidiary or other Affiliate thereof as if such  Person were not the Administrative Agent hereunder and without any duty to account therefor to the  Lenders or to provide notice to or consent of the Lenders with respect thereto.  SECTION 11.3 Exculpatory Provisions.  (a) The Administrative Agent, the Arrangers and their respective Related Parties shall not  have any duties or obligations except those expressly set forth herein and in the other Loan  Documents, and its duties hereunder and thereunder shall be administrative in nature.  Without  limiting the generality of the foregoing, the Administrative Agent, the Arrangers and their respective  Related Parties:  (i) shall not be subject to any agency, trust, fiduciary or other implied duties,  regardless of whether a Default or Event of Default has occurred and is continuing;  (ii) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the other Loan Documents that the Administrative Agent is required to exercise as directed in  writing by the Required Lenders (or such other number or percentage of the Lenders as shall be  expressly provided for herein or in the other Loan Documents), provided that the Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,  may expose the Administrative Agent to liability or that is contrary to any Loan Document or  Applicable Law, including for the avoidance of doubt any action that may be in violation of the  automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law;  (iii) shall not have any duty to disclose, and shall not be liable for the failure to  disclose to any Lender, any Issuing Lender or any other Person, any credit or other information  concerning the business, prospects, operations, properties, assets, financial or other condition or  creditworthiness of the Borrower or any of its Subsidiaries or Affiliates that is communicated to,  obtained by or otherwise in the possession of the Person serving as the Administrative Agent, the  Arrangers or their respective Related Parties in any capacity, except for notices, reports and other  documents that are required to be furnished by the Administrative Agent to the Lenders pursuant  to the express provisions of this Agreement; and  





 






    112  142746705_6  (iv) shall not be required to account to any Lender or the Issuing Lender for any sum  or profit received by the Administrative Agent for its own account.  (b) The Administrative Agent, the Arrangers and their respective Related Parties shall not be  liable for any action taken or not taken by it under or in connection with this Agreement or any other  Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the  request of the Required Lenders (or such other number or percentage of the Lenders as shall be  necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the  circumstances as provided in Section 12.2 and Section 10.2) or (ii) in the absence of its own gross  negligence or willful misconduct as determined by a court of competent jurisdiction by final non- appealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any  Default or Event of Default unless and until notice describing such Default or Event of Default and  indicating that such notice is a “Notice of Default” is given to the Administrative Agent by the  Borrower, a Lender or an Issuing Lender.  (c) The Administrative Agent, the Arrangers and their respective Related Parties shall not be  responsible for or have any duty or obligations to any Lender or Participant or any other Person to  ascertain or inquire into (i) any statement, warranty or representation made in or in connection with  this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other  document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions set forth  herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability,  effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,  instrument or document or (v) the satisfaction of any condition set forth in Article VI or elsewhere  herein, other than to confirm receipt of items expressly required to be delivered to the Administrative  Agent.   SECTION 11.4 Reliance by the Administrative Agent.  The Administrative Agent shall be  entitled to rely upon, shall be fully protected in relying upon and shall not incur any liability for relying  upon, any notice, request, certificate, consent, communication, statement, instrument, document or other  writing (including any electronic message, Internet or intranet website posting or other distribution)  believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper  Person, including any certification pursuant to Section 11.9.  The Administrative Agent also may rely  upon any statement made to it orally or by telephone and believed by it to have been made by the proper  Person, and shall be fully protected in relying thereon and shall not incur any liability for relying thereon.   In determining compliance with any condition hereunder to the making of a Loan, or the issuance,  extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of  a Lender or the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory  to such Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the  contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such  Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the  Borrower), independent accountants and other experts selected by it, and shall not be liable for any action  taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.  Each  Lender and Issuing Lender that has signed this Agreement or a signature page to an Assignment and  Assumption or any other Loan Document pursuant to which it is to become a Lender or Issuing Lender  hereunder shall be deemed to have consented to, approved and accepted and shall deemed satisfied with  each document or other matter required thereunder to be consented to, approved or accepted by such  Lender or Issuing Lender or that is to be acceptable or satisfactory to such Lender or Issuing Lender.  SECTION 11.5 Delegation of Duties.  The Administrative Agent may perform any and all of  its duties and exercise its rights and powers hereunder or under any other Loan Document by or through  





 






    113  142746705_6  any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any  such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their  respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent  and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their  respective activities in connection with the syndication of the Credit Facility as well as activities as  Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or  misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a  final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful  misconduct in the selection of such sub-agents.  SECTION 11.6 Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,  the Issuing Lender and the Borrower.  Upon receipt of any such notice of resignation, the Required  Lenders shall have the right, in consultation with the Borrower and subject to the consent (not to be  unreasonably withheld or delayed) of the Borrower (provided no Event of Default has occurred and is  continuing at the time of such resignation), to appoint a successor, which shall be a bank or financial  institution reasonably experienced in serving as administrative agent on syndicated bank facilities with  an office in the United States, or an Affiliate of any such bank or financial institution with an office in  the United States.  If no such successor shall have been so appointed by the Required Lenders and  shall have accepted such appointment within 30 days after the retiring Administrative Agent gives  notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the  “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated  to), on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent  meeting the qualifications set forth above; provided that in no event shall any such successor  Administrative Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such  resignation shall become effective in accordance with such notice on the Resignation Effective Date.  (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause  (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by  notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and,  in consultation with the Borrower, appoint a successor.  If no such successor shall have been so  appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such  earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such  removal shall nonetheless become effective in accordance with such notice on the Removal Effective  Date.  (c) With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and  obligations hereunder and under the other Loan Documents (except that in the case of any collateral  security held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any of  the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such  collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for  any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent,  all payments, communications and determinations provided to be made by, to or through the  Administrative Agent shall instead be made by or to each Lender and the Issuing Lender directly, until  such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for  above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such  successor shall succeed to and become vested with all of the rights, powers, privileges and duties of  the retiring or removed Administrative Agent (other than any rights to indemnity payments or other  amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or  





 






    114  142746705_6  the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be  discharged from all of its duties and obligations hereunder or under the other Loan Documents.  The  fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable  to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring  or removed Administrative Agent’s resignation or removal hereunder and under the other Loan  Documents, the provisions of this Article and Section 12.3 shall continue in effect for the benefit of  such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in  respect of any actions taken or omitted to be taken by any of them while the retiring or removed  Administrative Agent was acting as Administrative Agent.  (d) Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant to this  Section shall also constitute its resignation as an Issuing Lender and Swingline Lender.  Upon the  acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall  succeed to and become vested with all of the rights, powers, privileges and duties of the retiring  Issuing Lender, if in its sole discretion it elects to, and Swingline Lender, (ii) the retiring Issuing  Lender and Swingline Lender shall be discharged from all of their respective duties and obligations  hereunder or under the other Loan Documents, and (iii) the successor Issuing Lender, if in its sole  discretion it elects to, shall issue letters of credit in substitution for the Letters of Credit, if any,  outstanding at the time of such succession or make other arrangements satisfactory to the retiring  Issuing Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such  Letters of Credit.  SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and  the Issuing Lender expressly acknowledges that none of the Administrative Agent, any Arranger or any of  their respective Related Parties has made any representations or warranties to it and that no act taken or  failure to act by the Administrative Agent, any Arranger or any of their respective Related Parties,  including any consent to, and acceptance of any assignment or review of the affairs of the Borrower and  its Subsidiaries or Affiliates shall be deemed to constitute a representation or warranty of the  Administrative Agent, any Arranger or any of their respective Related Parties to any Lender, the Issuing  Lender or any other Guaranteed Party as to any matter, including whether the Administrative Agent, any  Arranger or any of their respective Related Parties have disclosed material information in their (or their  respective Related Parties’) possession.  Each Lender and the Issuing Lender expressly acknowledges,  represents and warrants to the Administrative Agent and each Arranger that (a) the Loan Documents set  forth the terms of a commercial lending facility, (b) it is engaged in making, acquiring, purchasing or  holding commercial loans in the ordinary course and is entering into this Agreement and the other Loan  Documents to which it is a party as a Lender for the purpose of making, acquiring, purchasing and/or  holding the commercial loans set forth herein as may be applicable to it, and not for the purpose of  making, acquiring, purchasing or holding any other type of financial instrument, (c) it is sophisticated  with respect to decisions to make, acquire, purchase or hold the commercial loans applicable to it and  either it or the Person exercising discretion in making its decisions to make, acquire, purchase or hold  such commercial loans is experienced in making, acquiring, purchasing or holding commercial loans, (d)  it has, independently and without reliance upon the Administrative Agent, any Arranger, any other Lender  or any of their respective Related Parties and based on such documents and information as it has deemed  appropriate, made its own credit analysis and appraisal of, and investigations into, the business, prospects,  operations, property, assets, liabilities, financial and other condition and creditworthiness of the Borrower  and its Subsidiaries, all applicable bank or other regulatory Applicable Laws relating to the Transactions  and the transactions contemplated by this Agreement and the other Loan Documents and (e) it has made  its own independent decision to enter into this Agreement and the other Loan Documents to which it is a  party and to extend credit hereunder and thereunder.  Each Lender and the Issuing Lender also  acknowledges that (i) it will, independently and without reliance upon the Administrative Agent, any  Arranger or any other Lender or any of their respective Related Parties (A) continue to make its own  





 






    115  142746705_6  credit analysis, appraisals and decisions in taking or not taking action under or based upon this  Agreement, any other Loan Document or any related agreement or any document furnished hereunder or  thereunder based on such documents and information as it shall from time to time deem appropriate and  its own independent investigations and (B) continue to make such investigations and inquiries as it deems  necessary to inform itself as to the Borrower and its Subsidiaries and (ii) it will not assert any claim in  contravention of this Section 11.7.  SECTION 11.8 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none  of the syndication agents, documentation agents, co-agents, arrangers or bookrunners listed on the cover  page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other  Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an  Issuing Lender hereunder, but each such Person shall have the benefit of the indemnities and exculpatory  provisions hereof.  SECTION 11.9 Guaranty Matters.  Each of the Lenders (including in its or any of its  Affiliate’s capacities as a holder of obligations under Guaranteed Hedge Agreements and Guaranteed  Cash Management Agreements) irrevocably authorize the Administrative Agent, at its option and in its  discretion, to release any Subsidiary Guarantor from its obligations under any Loan Documents if such  Person (i) ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents, as  certified by the Borrower; provided that the release of Subsidiary Guarantors comprising substantially all  of the credit support for the Guaranteed Obligations shall be subject to Section 12.2(h) or (ii) is  designated as, and qualifies to become, an Immaterial Subsidiary.    Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the  Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under the  Subsidiary Guaranty Agreement pursuant to this Section 11.9.  In each case as specified in this  Section 11.9, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the  applicable Credit Party such documents as such Credit Party may reasonably request to evidence the  release such Subsidiary Guarantor from its obligations under the Guaranty Agreement, in each case in  accordance with the terms of the Loan Documents and this Section 11.9 as certified by the Borrower.    SECTION 11.10 Guaranteed Hedge Agreements and Guaranteed Cash Management  Agreements.  No Cash Management Bank or Hedge Bank that obtains the benefits of Section 10.4 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 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 XI 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, Guaranteed Cash Management Agreements  and Guaranteed Hedge Agreements unless the Administrative Agent has received written notice of such  Guaranteed Cash Management Agreements and Guaranteed Hedge Agreements, together with such  supporting documentation as the Administrative Agent may request, from the applicable Cash  Management Bank or Hedge Bank, as the case may be.  Furthermore, notwithstanding any other provision  of this Article XI 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, Guaranteed Cash Management  Agreements and Guaranteed Hedge Agreements in the case of the Revolving Credit Maturity Date, the  Term A-1 Loan Maturity Date or the Term A-2 Loan Maturity Date, as applicable.  SECTION 11.11 Erroneous Payments.  (a) Each Lender and the Issuing Lender hereby severally agrees that if (i) the Administrative  Agent notifies (which such notice shall be conclusive absent manifest error) such Lender or Issuing  





 






    116  142746705_6  Lender that the Administrative Agent has determined in its sole discretion that any funds received by such  Lender or Issuing Lender from the Administrative Agent or any of its Affiliates were erroneously  transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Lender  (whether or not known to such Lender or Issuing Lender) or (ii) it receives any payment from the  Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date  from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with  respect to such payment, (y) that was not preceded or accompanied by a notice of payment sent by the  Administrative Agent (or any of its Affiliates) with respect to such payment or (z) that such Lender or  Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or  in part) then, in each case an error in payment has been made (any such amounts specified in clauses (i) or  (ii) of this Section 11.12(a), whether received as a payment, prepayment or repayment of principal,  interest, fees or otherwise; individually and collectively, an “Erroneous Payment”), the Lender or Issuing  Lender, as the case may be, is deemed to have knowledge of such error at the time of its receipt of such  Erroneous Payment and, to the extent permitted by Applicable Law, such Lender or Issuing Lender shall  not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim,  defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the  Administrative Agent for the return of any Erroneous Payments received, including without limitation  waiver of any defense based on “discharge for value” or any similar doctrine.  (b) Without limiting the immediately preceding clause (a), each Lender and the Issuing  Lender agrees that, in the case of clause (a)(ii) above, it shall promptly (and, in all events, within one (1)  Business Day of its knowledge (or deemed knowledge) of such error) notify the Administrative Agent in  writing of such occurrence and, in the case of either clause (a)(i) or (a)(ii) above upon demand from the  Administrative Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter,  return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to  which such a demand was made in same day funds (in the currency so received), together with interest  thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof)  was received by such Lender or Issuing Lender to the date such amount is repaid to the Administrative  Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank compensation from time to  time in effect.  (c) The Borrower and each other Credit Party hereby agrees that (x) in the event an  Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has  received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be  subrogated to all the rights of such Lender or Issuing Lender with respect to such amount, (y) an  Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by  the Borrower or any other Credit Party and (z) to the extent that an Erroneous Payment was in any way or  at any time credited as payment or satisfaction of any of the Obligations, the Obligations or any part  thereof that were so credited, and all rights of the applicable Lender, Issuing Lender, Administrative  Agent or other Guaranteed Party, as the case may be, shall be reinstated and continue in full force and  effect as if such payment or satisfaction had never been received.  (d) Each party’s obligations under this Section 11.11 shall survive the resignation or  replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of,  a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all  Obligations (or any portion thereof) under any Loan Document.  





 






    117  142746705_6  ARTICLE XII    MISCELLANEOUS  SECTION 12.1 Notices.  (a) Notices Generally.  Except in the case of notices and other communications expressly  permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and  other communications provided for herein shall be in writing and shall be delivered by hand or  overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:  If to the Borrower:  Tyler Technologies, Inc.  5101 Tennyson Parkway  Plano, Texas 75024  Attention of:  Brian Miller, Executive Vice President &  Chief Financial Officer   Telephone No.: (972) 713-3720  Facsimile No.: (972) 713-3741  E-mail: brian.miller@tyertech.com  With copies to:  Attention of:  Abigail Diaz, Chief Legal Officer  Telephone No.: 800.772.2260 ext.4289  E-mail: Abigail.Diaz@tylertech.com  And to:  K&L Gates LLP  1717 Main Street, Suite 2800  Dallas, Texas 75201  Attention of:  Laurie G. Lang  Telephone No.:  (214) 939-4945  E-mail: Laurie.Lang@klgates.com   If to Wells Fargo as  Administrative   Agent:  Wells Fargo Bank, National Association  MAC D1109-019  1525 West W.T. Harris Blvd.  Charlotte, NC 28262  Attn: Syndication Agency Services  Telecopy:  (704) 590-3481  If to any Lender:  To the address set forth on the Register  





 






    118  142746705_6  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be  deemed to have been given when received; notices sent by facsimile shall be deemed to have been  given when sent (except that, if not given during normal business hours for the recipient, shall be  deemed to have been given at the opening of business on the next Business Day for the recipient).   Notices delivered through electronic communications to the extent provided in paragraph (b) below,  shall be effective as provided in said paragraph (b).  (b) Electronic Communications.  Notices and other communications to the Lenders and the  Issuing Lender hereunder may be delivered or furnished by electronic communication (including e- mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,  provided that the foregoing shall not apply to notices to any Lender or the Issuing Lender pursuant to  Article II if such Lender or such Issuing Lender, as applicable, has notified the Administrative Agent  that is incapable of receiving notices under such Article by electronic communication.  The  Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other  communications to it hereunder by electronic communications pursuant to procedures approved by it,  provided that approval of such procedures may be limited to particular notices or communications.   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) notices or communications posted to an Internet or intranet  website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail  address as described in the foregoing clause (i) of notification that such notice or communication is  available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above,  if such notice, email or other communication is not sent during the normal business hours of the  recipient, such notice, email or other communication shall be deemed to have been sent at the opening  of business on the next business day for the recipient.  (c) Administrative Agent’s Office.  The Administrative Agent hereby designates its office  located at the address set forth above, or any subsequent office which shall have been specified for  such purpose by written notice to the Borrower and Lenders, as the Administrative Agent’s Office  referred to herein, to which payments due are to be made and at which Loans will be disbursed and  Letters of Credit requested.  (d) Change of Address, Etc.  Any party hereto may change its address or facsimile number  for notices and other communications hereunder by notice to the other parties hereto.  (e) Platform.  (i) Each Credit Party, each Lender and the Issuing Lender agrees that the  Administrative Agent may, but shall not be obligated to, make the Borrower Materials available  to the Issuing Lender and the other Lenders by posting the Borrower Materials on the Platform.    (ii) The Platform is provided “as is” and “as available.”  The Agent Parties (as  defined below) do not warrant the accuracy or completeness of the Borrower Materials or the  adequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower  Materials.  No warranty of any kind, express, implied or statutory, including, without limitation,  any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party  rights or freedom from viruses or other code defects, is made by any Agent Party in connection  with the Borrower Materials or the Platform.  Although the Platform is secured pursuant to  generally-applicable security procedures and policies implemented or modified by the  Administrative Agent and its Related Parties, each of the Lenders, the Issuing Lender and the  





 






    119  142746705_6  Borrower acknowledges and agrees that distribution of information through an electronic means  is not necessarily secure in all respects, the Administrative Agent or any of its Related Parties  (collectively, the “Agent Parties”) are not responsible for approving or vetting the representatives,  designees or contacts of any Lender or Issuing Lender that are provided access to the Platform  and that there may be confidentiality and other risks associated with such form of distribution.   Each of the Borrower, each Lender and the Issuing Lender party hereto understands and accepts  such risks. In no event shall the Agent Parties have any liability to any Credit Party, any Lender  or any other Person or entity for losses, claims, damages, liabilities or expenses of any kind  (whether in tort, contract or otherwise) arising out of any Credit Party’s or the Administrative  Agent’s transmission of communications through the Internet (including, without limitation, the  Platform), except to the extent that such losses, claims, damages, liabilities or expenses are  determined by a court of competent jurisdiction by final and nonappealable judgment to have  resulted from the gross negligence or willful misconduct of such Agent Party; provided that in no  event shall any Agent Party have any liability to any Credit Party, any Lender, the Issuing Lender  or any other Person for indirect, special, incidental, consequential or punitive damages, losses or  expenses (as opposed to actual damages, losses or expenses).    (f) Private Side Designation.  Each Public Lender agrees to cause at least one individual at or  on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar  designation on the content declaration screen of the Platform in order to enable such Public Lender or  its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law,  including United States Federal and state securities Applicable Laws, to make reference to Borrower  Materials that are not made available through the “Public Side Information” portion of the Platform  and that may contain material non-public information with respect to the Borrower or its securities for  purposes of United States Federal or state securities Applicable Laws.  SECTION 12.2 Amendments, Waivers and Consents.  Except as set forth below or as  specifically provided in any Loan Document (including Section 5.8(c)), any term, covenant, agreement or  condition of this Agreement or any of the other Loan Documents may be amended or waived by the  Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in  writing and approved by the Required Lenders (or in the case of any amendment which directly affects  only one Class under the Credit Facility, the Required Facility Lenders, and not the Required Lenders) (or  by the Administrative Agent with the consent of the Required Lenders or the Required Facility Lenders,  as applicable) and delivered to the Administrative Agent and, in the case of an amendment, signed by the  Borrower; provided, that no amendment, waiver or consent shall:    (a) amend, modify or waive (i) Section 6.2 or any other provision of this Agreement if the  effect of such amendment, modification or waiver is to require the Revolving Credit Lenders (pursuant  to, in the case of any such amendment to a provision hereof other than Section 6.2, any substantially  concurrent request by the Borrower for a borrowing of Revolving Credit Loans or issuance of Letters  of Credit) to make Revolving Credit Loans when such Revolving Credit Lenders would not otherwise  be required to do so, (ii) the amount of the Swingline Commitment or (iii) the amount of the L/C  Sublimit, in each case without the written consent of the Required Revolving Credit Lenders;  (b) (i) subordinate any of the Obligations owed to the Revolving Credit Lenders in right of  payment or otherwise adversely affect the priority of payment of any of such Obligations or (ii)  subordinate any of the Liens, if any, securing the Obligations owed to the Revolving Credit Lenders, in  each case without the consent of each of the Revolving Credit Lenders;  





 






    120  142746705_6  (c) increase or extend the Commitment of any Lender (or reinstate any Commitment  terminated pursuant to Section 10.2) or increase the amount of Loans of any Lender, in any case,  without the written consent of such Lender;  (d) waive, extend or postpone any date fixed by this Agreement or any other Loan Document  for any payment or mandatory prepayment of principal (it being understood that a waiver of a  mandatory prepayment under Section 4.4(b) shall only require the consent of the Required Term A-1  Loan Lenders and the Required Term A-2 Loan Lenders), interest, fees or other amounts due to the  Lenders (or any of them) hereunder or under any other Loan Document without the written consent of  each Lender directly and adversely affected thereby;  (e) reduce the principal of, or the rate of interest specified herein on, any Loan or  Reimbursement Obligation, or (subject to clause (iv) of the proviso set forth in the paragraph below)  any fees or other amounts payable hereunder or under any other Loan Document without the written  consent of each Lender directly and adversely affected thereby; provided that (i) only the consent of  the Required Facility Lenders shall be necessary to waive any obligation of the Borrower to pay  interest at the rate set forth in Section 5.1(b) during the continuance of an Event of Default with  respect to the applicable Class and (ii) only the consent of the Required Lenders shall be necessary to  amend any financial covenant hereunder (or any defined term used therein) even if the effect of such  amendment would be to reduce the rate of interest on any Loan or L/C Obligation or to reduce any fee  payable hereunder;  (f) change Section 5.6 or Section 10.4 (or amend any other term of the Loan Documents that  would have the effect of changing Section 5.6 or Section 10.4) in a manner that would alter the pro  rata sharing of payments or order of application required thereby without the written consent of each  Lender directly and adversely affected thereby;  (g) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and  obligations under any Loan Document to which it is a party (except as permitted pursuant to  Section 9.4), in each case, without the written consent of each Lender;   (h) (i) subordinate the Obligations in right of payment or (ii) release, or subordinate the  obligations of, (A) all of the Subsidiary Guarantors or (B) Subsidiary Guarantors comprising  substantially all of the credit support for the Guaranteed Obligations, in any case, from the Guaranty  Agreement, without the written consent of each Lender;   (i) except as otherwise permitted by this Section 12.2, change any provision of this Section  or reduce the percentages specified in the definitions of “Required Lenders,” “Required Revolving  Credit Lenders”, “Required Facility Lenders”, “Required Term A-1 Loan Lenders” or “Required Term  A-2 Loan Lenders” or any other provision hereof specifying the number or percentage of Lenders  required to amend, waive or otherwise modify any rights hereunder or make any determination or  grant any consent hereunder, without the written consent of each Lender directly affected thereby;  (j) impose any greater restriction on the ability of any Lender under any Class to assign any  of its rights or obligations hereunder without the written consent of the Required Facility Lenders  under such Class;  (k) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and  obligations under any Loan Document to which it is a party (except as permitted pursuant to  Section 9.4), in each case, without the written consent of each Lender; or  





 






    121  142746705_6  (l) change Section 4.4(b)(iv) (or amend any other term of the Loan Documents that would  have the effect of changing Section 4.4(b)(iv)) in a manner that would alter the order of application of  amounts prepaid pursuant thereto without the written consent of each Lender directly and adversely  affected thereby;  provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each  affected Issuing Lender in addition to the Lenders required above, affect the rights or duties of such  Issuing Lender under this Agreement or any Letter of Credit Application relating to any Letter of Credit  issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by  the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the  Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing  and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or  duties of the Administrative Agent under this Agreement or any other Loan Document or modify Section  12.1(e), Section 12.20 or Article XI hereof; (iv) the Engagement Letter may be amended, or rights or  privileges thereunder waived, in a writing executed only by the parties thereto, (v) each Letter of Credit  Application may be amended, or rights or privileges thereunder waived, in a writing executed only by the  parties thereto; provided that a copy of such amended Letter of Credit Application shall be promptly  delivered to the Administrative Agent upon such amendment or waiver, (vi) any waiver, amendment or  modification of this Agreement that by its terms affects the rights or duties under this Agreement of  Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or  Commitments of any other Class) may be effected by an agreement or agreements in writing entered into  by the Borrower and the requisite percentage in interest of the affected Class of Lenders that would be  required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders  hereunder at the time, and (vii) the Administrative Agent and the Borrower shall be permitted to amend  any provision of the Loan Documents (and such amendment shall become effective without any further  action or consent of any other party to any Loan Document) if the Administrative Agent and the Borrower  shall have jointly identified an obvious error or any error, ambiguity, defect, inconsistency or omission of  a technical or immaterial nature in any such provision and (viii) the Administrative Agent (and, if  applicable, the Borrower) may, without the consent of any Lender, enter into amendments or  modifications to this Agreement or any of the other Loan Documents or to enter into additional Loan  Documents in order to implement any Benchmark Replacement or any Benchmark Replacement  Conforming Changes or otherwise effectuate the terms of Section 5.8(c) in accordance with the terms of  Section 5.8(c).  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any  right to approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving  Credit Commitment of such Lender may not be increased or extended without the consent of such Lender.  Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes  the Administrative Agent on its behalf, and without further consent, to enter into amendments or  modifications to this Agreement (including, without limitation, amendments to this Section 12.2) or any  of the other Loan Documents or to enter into additional Loan Documents as the Administrative Agent  reasonably deems appropriate in order to effectuate the terms of Section 5.15 (including as applicable,  (1) to permit the Incremental Increases to share ratably in the benefits of this Agreement and the other  Loan Documents, (2) to include an Incremental Increase, as applicable, in any determination of  (i) Required Lenders, Required Revolving Credit Lenders, Required Term A-1 Loan Lenders or Required  Term A-2 Loan Lenders, as applicable or (ii) similar required lender terms applicable thereto); provided  that no amendment or modification shall result in any increase in the amount of any Lender’s  Commitment or any increase in any Lender’s Commitment Percentage, in each case, without the written  consent of such affected Lender and (3) to make amendments to any outstanding tranche of Term Loans  to permit any Incremental Term Loan Commitments and Incremental Term Loans to be “fungible”  (including for purposes of the Code) with such tranche of Term Loans, including increases in the  Applicable Margin or any fees payable to such outstanding tranche of Term Loans or providing such  





 






    122  142746705_6  outstanding tranche of Term Loans with the benefit of any call protection or covenants that are applicable  to the proposed Incremental Term Loan Commitments or Incremental Term Loans; provided that any  such amendments or modifications to such outstanding tranche of Term Loans shall not directly adversely  affect the Lenders holding such tranche of Term Loans without their consent.  SECTION 12.3 Expenses; Indemnity.  (a) Costs and Expenses.  The Borrower and any other Credit Party, jointly and severally,  shall pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent and its  Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative  Agent), in connection with the syndication of the Credit Facility, the preparation, negotiation,  execution, delivery and administration of this Agreement and the other Loan Documents or any  amendments, modifications or waivers of the provisions hereof or thereof (whether or not the  transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out of pocket  expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or  extension of any Letter of Credit or any demand for payment thereunder and (iii) all out of pocket  expenses incurred by the Administrative Agent, any Lender or the Issuing Lender (including the fees,  charges and disbursements of any counsel for the Administrative Agent, any Lender or the Issuing  Lender), in connection with the enforcement or protection of its rights (A) in connection with this  Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection  with the Loans made or Letters of Credit issued hereunder, including all such out of pocket expenses  incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of  Credit.  (b) Indemnification by the Borrower.  The Borrower shall indemnify the Administrative  Agent (and any sub-agent thereof), each Lender and the Issuing Lender, and each Related Party of any  of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each  Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for, any and all losses,  claims (including, without limitation, any Environmental Claims), penalties, damages, liabilities and  related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),  incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower  or any other Credit Party), arising out of, in connection with, or as a result of (i) the execution or  delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated  hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or  thereunder or the consummation of the transactions contemplated hereby or thereby (including,  without limitation, the Transactions), (ii) any Loan or Letter of Credit or the use or proposed use of the  proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment under  a Letter of Credit if the documents presented in connection with such demand do not strictly comply  with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous  Materials on or from any property owned or operated by any Credit Party or any Subsidiary thereof, or  any Environmental Claim related in any way to any Credit Party or any Subsidiary, (iv) any actual or  prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether  based on contract, tort or any other theory, whether brought by a third party or by any Credit Party or  any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, or (v) any claim  (including, without limitation, any Environmental Claims), investigation, litigation or other proceeding  (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and  defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other  Loan Document, or any documents contemplated by or referred to herein or therein or the transactions  contemplated hereby or thereby, including without limitation, reasonable attorneys and consultant’s  fees, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such  losses, claims, damages, liabilities or related expenses are determined by a court of competent  





 






    123  142746705_6  jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful  misconduct of such Indemnitee.  This Section 12.3(b) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.  (c) Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to  indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the  Administrative Agent (or any sub-agent thereof), the Issuing Lender, the Swingline Lender or any  Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent  (or any such sub-agent), such Issuing Lender, the Swingline Lender or such Related Party, as the case  may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed  expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at  such time, or if the Total Credit Exposure has been reduced to zero, then based on such Lender’s share  of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount (including  any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to  such unpaid amounts owed to the Issuing Lender or the Swingline Lender solely in its capacity as  such, only the Revolving Credit Lenders shall be required to pay such unpaid amounts, such payment  to be made severally among them based on such Revolving Credit Lenders’ Revolving Credit  Commitment Percentage (determined as of the time that the applicable unreimbursed expense or  indemnity payment is sought or, if the Revolving Credit Commitment has been reduced to zero as of  such time, determined immediately prior to such reduction); provided, further, that the unreimbursed  expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was  incurred by or asserted against the Administrative Agent (or any such sub-agent), such Issuing Lender  or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing  acting for the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swingline  Lender in connection with such capacity.  The obligations of the Lenders under this clause (c) are  subject to the provisions of Section 5.7.  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by Applicable  Law, the Borrower and each other Credit Party shall not assert, and hereby waives, any claim against  any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as  opposed to direct or actual damages) arising out of, in connection with, or as a result of, this  Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the  transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds  thereof.  No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the  use by unintended recipients of any information or other materials distributed by it through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.  (e) Payments.  All amounts due under this Section shall be payable promptly after demand  therefor.  (f) Survival.  Each party’s obligations under this Section shall survive the termination of the  Loan Documents and payment of the obligations hereunder.  SECTION 12.4 Right of Setoff.  If an Event of Default shall have occurred and be  continuing, each Lender, the Issuing Lender, the Swingline Lender and each of their respective Affiliates  is hereby authorized at any time and from time to time, after obtaining the prior written consent of the  Administrative Agent, to the fullest extent permitted by Applicable Law, to set off and apply any and all  deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held  and other obligations (in whatever currency) at any time owing by such Lender, such Issuing Lender, the  Swingline Lender or any such Affiliate to or for the credit or the account of the Borrower or any other  





 






    124  142746705_6  Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter  existing under this Agreement or any other Loan Document to such Lender, such Issuing Lender or the  Swingline Lender or any of their respective Affiliates, irrespective of whether or not such Lender, such  Issuing Lender, the Swingline Lender or any such Affiliate shall have made any demand under this  Agreement or any other Loan Document and although such obligations of the Borrower or such Credit  Party may be contingent or unmatured or are owed to a branch or office of such Lender, such Issuing  Lender, the Swingline Lender or such Affiliate different from the branch, office or Affiliate holding such  deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender or any  Affiliate thereof 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 10.4 and, pending such payment, shall be segregated by such Defaulting Lender or Affiliate of a  Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative  Agent, the Issuing Lender, the Swingline Lender and the Lenders, and (y) the Defaulting Lender or its  Affiliate shall provide promptly to the Administrative Agent a statement describing in reasonable detail  the Obligations owing to such Defaulting Lender or any of its Affiliates as to which it exercised such right  of setoff.  The rights of each Lender, the Issuing Lender, the Swingline Lender and their respective  Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff)  that such Lender, such Issuing Lender, the Swingline Lender or their respective Affiliates may have.   Each Lender, such Issuing Lender and the Swingline Lender agree to notify the Borrower and the  Administrative Agent promptly after any such setoff and application; provided that the failure to give  such notice shall not affect the validity of such setoff and application.    SECTION 12.5 Governing Law; Jurisdiction, Etc.  (a) Governing Law.  This Agreement and the other Loan Documents and any claim,  controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising  out of or relating to this Agreement or any other Loan Document (except, as to any other Loan  Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall  be governed by, and construed in accordance with, the law of the State of New York (without giving  effect to the choice of law principles thereof (other than Section 5-1401 of the General Obligations  Law of the State of New York)).  (b) Submission to Jurisdiction.  The Borrower and each other Credit Party irrevocably and  unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or  description, whether in law or equity, whether in contract or in tort or otherwise, against the  Administrative Agent, any Lender, the Issuing Lender, the Swingline Lender, or any Related Party of  the foregoing in any way relating to this Agreement or any other Loan Document or the transactions  relating hereto or thereto, in any forum other than 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, the Issuing Lender or the Swingline Lender may otherwise have to bring any action or  proceeding relating to this Agreement or any other Loan Document against the Borrower or any other  Credit Party or its properties in the courts of any jurisdiction.  





 






    125  142746705_6  (c) Waiver of Venue.  The Borrower and each other Credit Party irrevocably and  unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may  now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to  this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.   Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable  Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any  such court.  (d) Service of Process.  Each party hereto irrevocably consents to service of process in the  manner provided for notices in Section 12.1.  Nothing in this Agreement will affect the right of any  party hereto to serve process in any other manner permitted by Applicable Law.  SECTION 12.6 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT  MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT  NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS  REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN  THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)  ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO  ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER  THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  SECTION 12.7 Reversal of Payments.  To the extent any Credit Party makes a payment or  payments to the Administrative Agent for the ratable benefit of the Lenders which payments 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 Debtor Relief Law, other Applicable Law or  equitable cause, then, to the extent of such payment or proceeds repaid, the Guaranteed Obligations or  part thereof intended to be satisfied shall be revived and continued in full force and effect as if such  payment or proceeds had not been received by the Administrative Agent.  SECTION 12.8 Injunctive Relief.  The Borrower recognizes that, in the event the Borrower  fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any  remedy of law may prove to be inadequate relief to the Lenders.  Therefore, the Borrower agrees that the  Lenders, at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such  case without the necessity of proving actual damages.  SECTION 12.9 Successors and Assigns; Participations.  (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 neither the Borrower nor any other Credit 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  except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of  participation in accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge  or assignment of a security interest subject to the restrictions of paragraph (e) of this Section (and any  other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this  Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties  





 






    126  142746705_6  hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in  paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each  of the 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 assignees  all or a portion of its rights and obligations under this Agreement (including all or a portion of its  Revolving Credit Commitment and the Loans at the time owing to it); provided that, in each case with  respect to any Credit Facility, any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of the  assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case  with respect to any Credit Facility) or contemporaneous assignments to related Approved  Funds (determined after giving effect to such assignments) that equal at least the amount  specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an  assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum  amount need be assigned; and  (B) in any case not described in paragraph (b)(i)(A) of this Section, the  aggregate amount of the Commitment (which for this purpose includes Loans outstanding  thereunder) or, if the applicable Commitment is not then in effect, the principal  outstanding balance of the Loans of the assigning Lender subject to each such assignment  (determined as of the date the Assignment and Assumption with respect to such  assignment is delivered to 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, in  the case of any assignment in respect of the Revolving Credit Facility, or $5,000,000, in  the case of any assignment in respect of any Term Loan Facility, unless each of the  Administrative Agent and, so long as no Event of Default has occurred and is continuing,  the Borrower otherwise consents (each such consent not to be unreasonably withheld or  delayed); provided that the Borrower shall be deemed to have given its consent five (5)  Business Days after the date written notice thereof has been delivered by the assigning  Lender (through the Administrative Agent) unless such consent is expressly refused by  the Borrower prior to such fifth (5th) Business Day;  (ii) Proportionate Amounts.  Each partial assignment shall be made as an assignment  of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement  with respect to the Loan or the Commitment assigned;  (iii) Required Consents.  No consent shall be required for any assignment except to  the extent required by paragraph (b)(i)(B) of this Section and, in addition:  (A) the consent of the Borrower (such consent not to be unreasonably  withheld or delayed) shall be required unless (x) an Event of Default has occurred and is  continuing at the time of such assignment, (y) such assignment is to a Lender, an Affiliate  of a Lender or an Approved Fund or (z) the assignment is made in connection with the  primary syndication of the Credit Facility and during the period commencing on the  Closing Date and ending on the date that is ninety (90) days following the Closing Date;  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 5  





 






    127  142746705_6  Business Days after having received notice thereof; and provided, further, that the  Borrower’s consent shall not be required during the primary syndication of the Credit  Facility;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of (i) the  Revolving Credit Facility or any unfunded Term Loan Commitments if such assignment  is to a Person that is not a Lender with a Revolving Credit Commitment or a Term Loan  Commitment, as applicable, an Affiliate of such Lender or an Approved Fund with  respect to such Lender or (ii) any Term Loans to a Person who is not a Lender, an  Affiliate of a Lender or an Approved Fund; and  (C) the consents of the Issuing Lender and the Swingline Lender (such  consents not to be unreasonably withheld or delayed) shall be required for any  assignment in respect of the Revolving Credit Facility.  (iv) Assignment and Assumption.  The parties to each assignment shall execute and  deliver to the Administrative Agent an Assignment and Assumption, together with a processing  and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will be  payable in connection with simultaneous assignments to two or more related Approved Funds by  a Lender and (B) the Administrative Agent may, in its sole discretion, elect to waive such  processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender,  shall deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made to (A) the  Borrower or any of its Subsidiaries or Affiliates or (B) any Defaulting Lender or any of its  Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the  foregoing Persons described in this clause (B).  (vi) No Assignment to Natural Persons.  No such assignment shall be made to a  natural Person (or a holding company, investment vehicle or trust for, or owned and operated for  the primary benefit of, a natural Person).  (vii) Certain Additional Payments.  In connection with any assignment of rights and  obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and  until, in addition to the other conditions thereto set forth herein, the parties to 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 (A) pay and satisfy in full all  payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing  Lender, the Swingline Lender and each other Lender hereunder (and interest accrued thereon),  and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in  Letters of Credit and Swingline Loans in accordance with its Revolving Credit 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.  





 






    128  142746705_6  Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this  Section, from and after the effective date specified in each Assignment and Assumption, the assignee  thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the  assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and  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 5.8,  5.9, 5.10, 5.11 and 12.3 with respect to facts and circumstances occurring prior to the effective date of  such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender’s having been a Defaulting Lender.  Any assignment or transfer by a Lender of  rights or obligations under this Agreement that does not comply with this paragraph shall be treated for  purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in  accordance with paragraph (d) of this Section (other than a purported assignment to a natural Person or  the Borrower or any of the Borrower’s Subsidiaries or Affiliates, which shall be null and void.)  (c) Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary  agent of the Borrower, shall maintain at one of its offices in Charlotte, North Carolina, a copy of each  Assignment and Assumption and each Incremental Amendment delivered to it and a register for the  recordation of the names and addresses of the Lenders, and the Commitment of, and principal amounts of  (and stated interest on) 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.  The Register shall  be available for inspection by the Borrower and any Lender (but only to the extent of entries in the  Register that are applicable to such Lender), at any reasonable time and from time to time upon  reasonable prior notice.  (d) Participations.  Any Lender may at any time, without the consent of, or notice to, the  Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, or a  holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a  natural Person, or the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (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 Borrower, the Administrative  Agent, the Issuing Lender, the Swingline Lender and the other Lenders shall continue to deal solely and  directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.   For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.3(c) with  respect to any payments made by such Lender to its Participant(s).  Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such agreement or  instrument may provide that such Lender will not, without the consent of the Participant, agree to any  amendment, modification or waiver described in Section 12.2(b), (c), (d) or (e) that directly and adversely  affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of  Sections 5.9, 5.10 and 5.11 (subject to the requirements and limitations therein, including the  requirements under Section 5.11(g) (it being understood that the documentation required under  Section 5.11(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender  





 






    129  142746705_6  and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such  Participant (A) agrees to be subject to the provisions of Section 5.12 as if it were an assignee under  paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections  5.10 or 5.11, with respect to any participation, than its participating Lender would have been entitled to  receive, except to the extent such entitlement to receive a greater payment results from a Change in Law  that occurs after the Participant acquired the applicable participation.  Each Lender that sells a  participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with  the Borrower to effectuate the provisions of Section 5.12(b) with respect to any Participant.  To the extent  permitted by law, each Participant also shall be entitled to the benefits of Section 12.4 as though it were a  Lender; provided that such Participant agrees to be subject to Section 5.6 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 of (and stated interest on) 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) or Proposed Section 1.163-5(b) of the United States Treasury  Regulations (or, in each case, any amended or successor version).  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 without  limitation 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) Cashless Settlement.  Notwithstanding anything to the contrary contained in this  Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection  with any refinancing, extension, loan modification or similar transaction permitted by the terms of this  Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative  Agent and such Lender.  SECTION 12.10 Treatment of Certain Information; Confidentiality.  Each of the  Administrative Agent, the Lenders and the Issuing Lender agrees to maintain the confidentiality of the  Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its  and its Related Parties in connection with the Credit Facility, this Agreement, the transactions  contemplated hereby or in connection with marketing of services by such Affiliate or Related Party to the  Borrower or any of its Subsidiaries (it being understood that the Persons to whom such disclosure is made  will be informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent required or requested by, or required to be disclosed to, any regulatory or  similar authority purporting to have jurisdiction over such Person or its Related Parties (including any  self-regulatory authority, such as the National Association of Insurance Commissioners), (c) as to the  extent required by Applicable Laws or regulations or in any legal, judicial, administrative or other  compulsory process, (d) to any other party hereto, (e) in connection with the exercise of any remedies  under this Agreement, under any other Loan Document or under any Guaranteed Hedge Agreement or  





 






    130  142746705_6  Guaranteed Cash Management Agreement, or any action or proceeding relating to this Agreement, any  other Loan Document or any Guaranteed Hedge Agreement or Guaranteed Cash Management  Agreement, or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing  provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any  actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under  which payments are to be made by reference to the Borrower and its obligations, this Agreement or  payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the  Borrower or its Subsidiaries or the Credit Facility or (ii) the CUSIP Service Bureau or any similar agency  in connection with the issuance and monitoring of CUSIP numbers with respect to the Credit Facility, (h)  with the consent of the Borrower, (i) deal terms and other information customarily reported to Thomson  Reuters, other bank market data collectors and similar service providers to the lending industry and  service providers to the Administrative Agent and the Lenders in connection with the administration of  the Loan Documents, (j) to the extent such Information (i) becomes publicly available other than as a  result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender, the  Issuing Lender or any of their respective Affiliates from a third party that is not, to such Person’s  knowledge, subject to confidentiality obligations to the Borrower, (k) to governmental regulatory  authorities in connection with any regulatory examination of the Administrative Agent or any Lender or  in accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the  Administrative Agent or such Lender deems necessary for the mitigation of claims by those authorities  against the Administrative Agent or such Lender or any of its subsidiaries or affiliates, (l) to the extent  that such information is independently developed by such Person, or (m) for purposes of establishing a  “due diligence” defense.  For purposes of this Section, “Information” means all information received from  any Credit Party or any Subsidiary thereof relating to any Credit Party or any Subsidiary thereof or any of  their respective businesses, other than any such information that is available to the Administrative Agent,  any Lender or the Issuing Lender on a nonconfidential basis prior to disclosure by any Credit Party or any  Subsidiary thereof; provided that, in the case of information received from a Credit Party or any  Subsidiary thereof after the date hereof, such information is clearly identified at the time of delivery as  confidential.  Any Person required to maintain the confidentiality of Information as provided in this  Section shall be considered to have complied with its obligation to do so if such Person has exercised the  same degree of care to maintain the confidentiality of such Information as such Person would accord to its  own confidential information.  SECTION 12.11 Performance of Duties.  Each of the Credit Party’s obligations under this  Agreement and each of the other Loan Documents shall be performed by such Credit Party at its sole cost  and expense.  SECTION 12.12 All Powers Coupled with Interest.  All powers of attorney and other  authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the  Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other  Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the  Obligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit Facility  has not been terminated.  SECTION 12.13 Survival.  (a) All representations and warranties set forth in Article VII and all representations and  warranties contained in any certificate, or any of the Loan Documents (including, but not limited to, any  such representation or warranty made in or in connection with any amendment thereto) shall constitute  representations and warranties made under this Agreement.  All representations and warranties made  under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those  





 






    131  142746705_6  that are expressly made as of a specific date), shall survive the Closing Date and shall not be waived by  the execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or  any borrowing hereunder.  (b) Notwithstanding any termination of this Agreement, the indemnities to which the  Administrative Agent and the Lenders are entitled under the provisions of this Article XII and any other  provision of this Agreement and the other Loan Documents shall continue in full force and effect and  shall protect the Administrative Agent and the Lenders against events arising after such termination as  well as before.  SECTION 12.14 Titles and Captions.  Titles and captions of Articles, Sections and subsections  in, and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify the  provisions of this Agreement.  SECTION 12.15 Severability of Provisions.  Any provision of this Agreement or any other  Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be  ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of  such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of  such provision in any other jurisdiction.  SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution.  (a) Counterparts; Integration; Effectiveness.  This Agreement may be executed in  counterparts (and by different parties hereto in different counterparts), each of which shall constitute an  original, but all of which when taken together shall constitute a single contract.  This Agreement and the  other Loan Documents, and any separate letter agreements with respect to fees payable to the  Administrative Agent, the Issuing Lender, the Swingline Lender and/or any Arranger, constitute the entire  contract among the parties relating to the subject matter hereof and supersede any and all previous  agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided  in Section 6.1, this Agreement shall become effective when it shall have been executed by the  Administrative Agent and when the Administrative Agent shall have received counterparts hereof that,  when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed  counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format  shall be effective as delivery of a manually executed counterpart of this Agreement.  (b) Electronic Execution.  The words “execute,” “execution,” “signed,” “signature,”  “delivery” and words of like import in or related to this Agreement, any other Loan Document or any  document, amendment, approval, consent, waiver, modification, information, notice, certificate, report,  statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any  other Loan Document or the transactions contemplated hereby shall be deemed to include Electronic  Signatures or execution in the form of an Electronic Record, and contract formations on electronic  platforms approved by the Administrative Agent, deliveries or the keeping of records in electronic form,  each of which shall be of the same legal effect, validity or enforceability as a manually executed signature  or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in  any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act,  the New York State Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform Electronic Transactions Act.  Each party hereto agrees that any Electronic Signature or  execution in the form of an Electronic Record shall be valid and binding on itself and each of the other  parties hereto to the same extent as a manual, original signature.  For the avoidance of doubt, the  authorization under this paragraph may include, without limitation, use or acceptance by the parties of a  manually signed paper which has been converted into electronic form (such as scanned into PDF format),  





 






    132  142746705_6  or an electronically signed paper converted into another format, for transmission, delivery and/or  retention.  Notwithstanding anything contained herein to the contrary, the Administrative Agent is under  no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by  the Administrative Agent pursuant to procedures approved by it; provided that without limiting the  foregoing, (a) to the extent the Administrative Agent has agreed to accept such Electronic Signature from  any party hereto, the Administrative Agent and the other parties hereto shall be entitled to rely on any  such Electronic Signature purportedly given by or on behalf of the executing party without further  verification and (b) upon the request of the Administrative Agent or any Lender, any Electronic Signature  shall be promptly followed by an original manually executed counterpart thereof.  Without limiting the  generality of the foregoing, each party hereto hereby (i) agrees that, for all purposes, including without  limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy  proceedings or litigation among the Administrative Agent, the Lenders and any of the Credit Parties,  electronic images of this Agreement or any other Loan Document (in each case, including with respect to  any signature pages thereto)  shall have the same legal effect, validity and enforceability as any paper  original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the  Loan Documents based solely on the lack of paper original copies of any Loan Documents, including  with respect to any signature pages thereto.  SECTION 12.17 Term of Agreement.  This Agreement shall remain in effect from the Closing  Date through and including the date upon which all Obligations (other than contingent indemnification  obligations not then due) arising hereunder or under any other Loan Document shall have been  indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated or  expired (or been Cash Collateralized or otherwise satisfied in a manner acceptable to the Issuing Lender)  and the Revolving Credit Commitment has been terminated.  No termination of this Agreement shall  affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any  provision of this Agreement which survives such termination.  SECTION 12.18 USA PATRIOT Act; Anti-Money Laundering Laws.  The Administrative  Agent and each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT  Act or any other Anti-Money Laundering Laws, each of them is required to obtain, verify and record  information that identifies each Credit Party, which information includes the name and address of each  Credit Party and other information that will allow such Lender to identify each Credit Party in accordance  with the PATRIOT Act or such Anti-Money Laundering Laws.  SECTION 12.19 Independent Effect of Covenants.  The Borrower expressly acknowledges  and agrees that each covenant contained in Articles VIII or IX hereof shall be given independent effect.   Accordingly, the Borrower shall not engage in any transaction or other act otherwise permitted under any  covenant contained in Articles VIII or IX, before or after giving effect to such transaction or act, the  Borrower shall or would be in breach of any other covenant contained in Articles VIII or IX.  SECTION 12.20 No Advisory or Fiduciary Responsibility.  (a) In connection with all aspects of each transaction contemplated hereby, each Credit Party  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided  for hereunder and any related arranging or other services in connection therewith (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s- length commercial transaction between the Borrower and its Affiliates, on the one hand, and the  Administrative Agent, the Arrangers and the Lenders, on the other hand, and the Borrower is capable of  evaluating and understanding and understands and accepts the terms, risks and conditions of the  transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or  other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each  





 






    133  142746705_6  of the Administrative Agent, the Arrangers and the Lenders is and has been acting solely as a principal  and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders,  creditors or employees or any other Person, (iii) none of the Administrative Agent, the Arrangers or the  Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the  Borrower with respect to any of the transactions contemplated hereby or the process leading thereto,  including with respect to any amendment, waiver or other modification hereof or of any other Loan  Document (irrespective of whether any Arranger or Lender has advised or is currently advising the  Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, the Arrangers or  the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing  transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan  Documents, (iv) the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad  range of transactions that involve interests that differ from, and may conflict with, those of the Borrower  and its Affiliates, and none of the Administrative Agent, the Arrangers or the Lenders has any obligation  to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the  Administrative Agent, the Arrangers and the Lenders have not provided and will not provide any legal,  accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby  (including any amendment, waiver or other modification hereof or of any other Loan Document) and the  Credit Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they  have deemed appropriate.    (b) Each Credit Party acknowledges and agrees that each Lender, each Arranger and each  Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of  the Borrower, any Affiliate thereof or any other person or entity that may do business with or own  securities of any of the foregoing, all as if such Lender, such Arranger or such Affiliate thereof were not a  Lender or an Arranger or an Affiliate thereof (or an agent or any other person with any similar role under  the Credit Facilities) and without any duty to account therefor to any other Lender, the Arrangers, the  Borrower or any Affiliate of the foregoing.  Each Lender, each Arranger and each Affiliate thereof may  accept fees and other consideration from the Borrower or any Affiliate thereof for services in connection  with this Agreement, the Credit Facilities or otherwise without having to account for the same to any  other Lender, any other Arranger, the Borrower or any Affiliate of the foregoing.  SECTION 12.21 Inconsistencies with Other Documents.  In the event there is a conflict or  inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall  control.  SECTION 12.22 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;  





 






    134  142746705_6  (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  (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 12.23 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each  Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the  Borrower or any other Credit Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of  ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit or the  Commitments;   (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a  class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement;  (iii) (A) such Lender is an investment fund managed by a “Qualified Professional  Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional  Asset Manager made the investment decision on behalf of such Lender to enter into, participate  in, administer and perform the Loans, the Letters of Credit, the Commitments and this  Agreement, (C) the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of  sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender,  the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Commitments and this Agreement; or   (iv) such other representation, warranty and covenant as may be agreed in writing  between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true  with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in  accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x)  represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,  from the date such Person became a Lender party hereto to the date such Person ceases being a Lender  





 






    135  142746705_6  party hereto, for the benefit of, the Administrative Agent, each Arranger and their respective Affiliates,  and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that  none of the Administrative Agent, each Arranger and their respective Affiliates is a fiduciary with respect  to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in  connection with the reservation or exercise of any rights by the Administrative Agent under this  Agreement, any Loan Document or any documents related hereto or thereto).   SECTION 12.24 Acknowledgement Regarding Any Supported QFCs.  To the extent that the  Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other  agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and  Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special  Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions  below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated  to be governed by the laws of the State of New York and/or of the United States or any other state of the  United States):   (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such  Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC  or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer  would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit  Support (and any such interest, obligation and rights in property) were governed by the laws of the United  States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered  Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the  Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may  be exercised against such Covered Party are permitted to be exercised to no greater extent than such  Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and  the Loan Documents were governed by the laws of the United States or a state of the United States.   Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties  with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to  a Supported QFC or any QFC Credit Support.    (b) As used in this Section 12.25, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).  





 






    136  142746705_6  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall  be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).   [Signature pages to follow]  





 






 





 






Tyler Technologies, Inc.   Credit Agreement (2021)  Signature Page    AGENTS AND LENDERS:  WELLS FARGO BANK, NATIONAL ASSOCIATION, as  Administrative Agent, Swingline Lender, Issuing Lender  and Lender  By:   ________________________________________   Name:  Elizabeth Gaynor  Title:    Director         





 






 





 






 





 






 





 






REGIONS BANK. as Lender By: Name: JD Eller Title: Associate Tyler Technologies, Inc. Credit Agreement (2021) Signature Page 





 






 





 






Tyler Technologies, Inc.  Credit Agreement (2021)  Signature Page  BANK OF THE WEST, as Lender  By:  Name: R. Blake Beavers Title:   Director 





 






Tyler Technologies, Inc.  Credit Agreement (2021)  Signature Page  COMERICA BANK, as Lender  By:  _________________________________________   Name: John Smithson  Title:   Vice President