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Form 8-K Vista Outdoor Inc. For: Aug 08

August 8, 2022 4:19 PM EDT

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): August 8, 2022 (August 5, 2022)
 vsto-20220808_g1.jpg
 Vista Outdoor Inc.
(Exact name of registrant as specified in its charter)
 
Delaware
001-36597
47-1016855
(State or other jurisdiction of incorporation or organization)
(Commission File Number)
(I.R.S. Employer Identification No.)
1 Vista Way
Anoka
MN
55303
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including area code:  (763) 433-1000

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
        Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12
            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of Each ClassTrading Symbol(s)Name of each exchange on which registered
Common Stock, par value $.01VSTONew York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

    Emerging growth company  

    If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    






Item 1.01. Entry into a Material Definitive Agreement

New Credit Facilities

In connection with the Acquisition (defined and described in Item 2.01 below), Vista Outdoor Inc. ( “Vista”) (a) refinanced its existing $450,000,000 senior secured asset-based revolving credit facility with a new $600,000,000 senior secured asset-based revolving credit facility (the “ABL Credit Facility”) under the Amended and Restated Asset-Based Revolving Credit Agreement dated as of August 5, 2022 (the “ABL Credit Agreement”), among Vista, the additional borrowers from time to time party thereto, each lender from time to time party thereto, each L/C issuer from time to time party thereto and Capital One, National Association, as administrative agent (in such capacity, the “ABL Agent”), which amends and restates that certain Asset-Based Revolving Credit Agreement dated as of March 31, 2021, among Vista, the additional borrowers from time to time party thereto, each lender from time to time party thereto, each L/C issuer from time to time party thereto and Capital One, National Association, as administrative agent, and (b) obtained a new $350,000,000 senior secured term loan facility (the “Term Loan Facility”) under the Term Loan Credit Agreement dated as of August 5, 2022 (the “Term Loan Credit Agreement” and, together with the ABL Credit Agreement, the “Credit Agreements”), among Vista, the other borrowers from time to time party thereto, the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Term Agent”). As of August 5, 2022, there are approximately $290,000,000 of borrowings outstanding under the ABL Credit Facility and $350,000,000 of borrowings outstanding under the Term Loan Facility.

The ABL Credit Facility has a scheduled maturity date of March 31, 2026, subject to a customary springing maturity in respect of the Term Loan Facility and Vista’s Senior Notes due 2029. The Term Loan Facility has a scheduled maturity date of August 5, 2024. Each Credit Agreement provides for mandatory prepayments of loans outstanding thereunder under certain circumstances as described therein. Voluntary prepayments are permitted under each Credit Agreement without premium or penalty.

The ABL Credit Agreement permits Vista to utilize up to $75,000,000 of the ABL Credit Facility for the issuance of letters of credit and up to $100,000,000 for swing line loans. Vista has the option to increase the amount of the ABL Credit Facility in an aggregate amount not to exceed $150,000,000, to the extent that any one or more lenders, whether or not currently party to the ABL Credit Agreement, commits to be a lender for such amount.

Borrowings under the ABL Credit Agreement bear interest at a rate equal to either the sum of a base rate plus a margin ranging from 0.25% to 0.75% or the sum of an adjusted term SOFR plus a margin ranging from 1.25% to 1.75%, in each case, with either such margin varying according to Vista’s Average Excess Availability under the ABL Credit Facility. The initial margin under the ABL Credit Facility is 0.50% for base rate loans and 1.50% for term SOFR loans. Vista is also required to pay an unused fee in respect of unused commitments under the ABL Credit Facility, if any, at a rate of 0.175% per annum.

Borrowings under the Term Loan Credit Agreement bear interest at a rate equal to either the sum of a base rate plus a margin ranging from 2.50% to 3.00% or the sum of an adjusted term SOFR plus a margin ranging from 3.50% to 4.00%, in each case, with either such margin varying according to the Term Loan Formula Threshold under the Term Loan Credit Agreement. The initial margin under the Term Credit Agreement is 3.00% for base rate loans and 4.00% for term SOFR loans. Vista is also required to pay quarterly amortization at a rate ranging from 10% to 12.5% of the initial aggregate principal amount of the Term Loan Facility, with such amortization varying according to the Term Loan Formula Threshold. The initial rate of quarterly amortization under the Term Loan Credit Agreement is 12.5% of the initial aggregate principal amount of the Term Loan Facility.

The aggregate amount of loans permitted to be made to Vista under the ABL Credit Agreement may not exceed a line cap consisting of the lesser of (a) the aggregate amount of commitments or (b) a borrowing base consisting of the sum of specified percentages of eligible receivables, eligible inventory, the lesser of (i) certain unrestricted cash and (ii) $80,000,000, minus certain availability reserves, but subject to the excess availability covenant described below.

Substantially all domestic tangible and intangible assets of Vista and its domestic subsidiaries are pledged as collateral to secure the obligations under each of the Credit Agreements. The holders of loans and other obligations under the ABL Revolving Credit Facility have a first priority security interest in respect of accounts, receivables and cash and cash equivalents (other than any of the foregoing to the extent identified as proceeds of Term Loan Priority Collateral (as hereinafter defined)), deposit accounts, securities accounts, commodities accounts, inventory, certain tax refunds and certain insurance proceeds, along with certain related assets (collectively, “ABL Priority Collateral”) and a second priority security interest in the Term Loan Priority Collateral. The holders of loans and other obligations under the Term Loan Facility have a first priority security interest in respect of equipment, fixtures, goods (other than goods (including inventory) constituting ABL Priority Collateral), intellectual property, intercompany debt owing to Vista or its domestic subsidiaries, equity interests, certain real property, certain investment property, certain insurance proceeds and certain other assets not constituting ABL Priority Collateral (collectively, “Term Loan Priority Collateral”) and a second priority security interest in the ABL Priority Collateral.
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Each Credit Agreement contains customary covenants limiting the ability of Vista and its subsidiaries to, among other things, pay cash dividends, incur debt or liens, redeem or repurchase Vista stock, enter into transactions with affiliates, make investments, merge or consolidate with others or dispose of assets. In addition, each Credit Agreement contains financial covenants requiring Vista to maintain (a) a Consolidated Leverage Ratio of less than 3.00:1.00 and (b) ABL Excess Availability of no less than the greater of (i) $57,000,000 and (ii) 10% of the ABL Line Cap. If Vista does not comply with the covenants under either Credit Agreement, the lenders under such Credit Agreement may, subject to customary cure rights, require the immediate payment of all amounts outstanding under thereunder.

Each of the Credit Agreements includes a covenant that prohibits the spin-off of any line of business of Vista or certain of its subsidiaries, including the expected separation of Vista’s Outdoor Products segment (the “Outdoor Products Separation”), and amendment of such covenant will require the consent of all lenders under the applicable Credit Agreement in order to permit the Outdoor Products Separation. Vista anticipates that each of the Credit Agreements will be repaid or refinanced in full prior to or upon the consummation of the Outdoor Products Separation.

The foregoing summary of the Credit Agreements does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the ABL Credit Agreement and Term Loan Credit Agreement, copies of which are attached hereto as Exhibits 10.1 and 10.2, respectively, and incorporated by reference herein. Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the ABL Credit Agreement or Term Loan Credit Agreement, as applicable.

Item 2.01 Completion of Acquisition or Disposition of Assets.

As previously disclosed, on June 30, 2022, Vista and Vista Outdoor Operations LLC (“Vista LLC”), a wholly-owned subsidiary of Vista, entered into a definitive Share Purchase Agreement (the “Share Purchase Agreement”) with Fox Parent Holdings, LLC (“Seller”) and Fox (Parent) Holdings, Inc. (“Fox”), pursuant to which Vista LLC agreed to purchase from Seller and Seller agreed to sell to Vista LLC all of the issued and outstanding shares of common stock of Fox (the “Acquisition”).

The Acquisition closed on August 5, 2022. At closing, Vista paid the Seller $540.0 million in cash, subject to certain customary adjustments for cash and debt, transaction expenses, and working capital, with an additional $50.0 million of contingent consideration payable to Seller and certain individuals identified in the Purchase Agreement if Fox and its subsidiaries, as a group, achieve certain Adjusted EBITDA targets during the period beginning on January 1, 2022 and ending on December 31, 2022. At closing, Vista LLC deposited a portion of the purchase price equal to $5.0 million into an escrow account to satisfy purchase price adjustments, if any. The Acquisition was funded through proceeds from the Credit Agreements.

Item 2.03 Creation of a Direct Financial Obligations or Obligations under Off-Balance Sheet Arrangements of a Registrant.

Effective August 5, 2022, Vista entered into the ABL Credit Agreement more specifically described in Item 1.01 of this Current Report on Form 8-K, which description is incorporated by reference into this Item 2.03.

Effective August 5, 2022, Vista entered into the Term Loan Credit Agreement more specifically described in Item 1.01 of this Current Report on Form 8-K, which description is incorporated by reference into this Item 2.03.

Item 9.01. Financial Statements and Exhibits
 
(a) Financial Statements of Businesses Acquired

Vista intends to file the financial statements required by Item 9.01(a) as part of an amendment to this Current Report on Form 8-K no later than 71 calendar days after the required filing date for this Current Report on Form 8-K.

(b) Pro Forma Financial Information

Vista intends to file the pro forma financial information required by Item 9.01(b) as an amendment to this Current Report on Form 8-K no later than 71 days after the required filing date for this Current Report on Form 8-K.

(d)     Exhibits
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
  
  VISTA OUTDOOR INC.
   
 By:/s/ Dylan S. Ramsey
 Name:Dylan S. Ramsey
 Title:VP, General Counsel & Corporate Secretary
   
  
Date:August 8, 2022  

4
EXECUTION VERSION


AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT
Dated as of August 5, 2022
among
VISTA OUTDOOR INC.,
as the Parent Borrower,
THE ADDITIONAL BORROWERS FROM TIME TO TIME PARTY HERETO,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and

CAPITAL ONE, NATIONAL ASSOCIATION,
as the Administrative Agent

    


CAPITAL ONE, NATIONAL ASSOCIATION,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC,
and
THE HUNTINGTON NATIONAL BANK

as Joint Lead Arrangers and Joint Bookrunning Managers

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TABLE OF CONTENTS
Page
ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS
1
Section 1.01    Defined Terms
2
Section 1.02    Other Interpretive Provisions
58
Section 1.03    Accounting Terms.
59
Section 1.04    Rounding
59
Section 1.05    References to Agreements and Laws
60
Section 1.06    Times of Day; Rates
60
Section 1.07    Letter of Credit Amounts
60
Section 1.08    Currency Equivalents Generally
60
Section 1.09    Parent Borrower as Borrower Representative
60
Section 1.10    Interest Rates
61
ARTICLE II    THE COMMITMENTS AND CREDIT EXTENSIONS
62
Section 2.01    The Revolving Credit Loans.
62
Section 2.02    Borrowings, Conversions and Continuations of Revolving Credit Loans.
62
Section 2.03    Letters of Credit.
69
Section 2.04    Notes
78
Section 2.05    Prepayments.
78
Section 2.06    Termination or Reduction of Commitments.
80
Section 2.07    Repayment of Loans
81
Section 2.08    Interest.
81
Section 2.09    Fees.
82
Section 2.10    Computation of Interest and Fees
83
Section 2.11    Evidence of Indebtedness; Maintenance of Loan Account.
83
Section 2.12    Payments Generally.
84
Section 2.13    Sharing of Payments
86
Section 2.14    Increase in Revolving Commitments.
87
Section 2.15    [Reserved].
90
Section 2.16    [Reserved].
90
Section 2.17    Defaulting Lenders.
90
Section 2.18    Extension of Maturity Date.
92
Section 2.19    Cash Dominion
94
ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY
94
Section 3.01    Taxes.
94
Section 3.02    Illegality
96
Section 3.03    Inability to Determine Rates.
97
Section 3.04    Increased Cost.
99
Section 3.05    Compensation for Losses
100
Section 3.06    Matters Applicable to all Requests for Compensation.
101
Section 3.07    Survival
101
ARTICLE IV    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
101
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Table of Contents
(continued)
Page
Section 4.01    Conditions to Closing Date
101
Section 4.02    Conditions to all Credit Extensions
106
ARTICLE V    REPRESENTATIONS AND WARRANTIES
106
Section 5.01    Existence, Qualification and Power; Compliance with Laws
106
Section 5.02    Authorization; No Contravention
107
Section 5.03    Governmental Authorization; Other Consents
107
Section 5.04    Binding Effect
108
Section 5.05    Financial Statements; No Material Adverse Effect.
108
Section 5.06    Litigation.
108
Section 5.07    No Default
109
Section 5.08    Ownership of Property; Liens; Investments.
109
Section 5.09    Environmental Matters.
109
Section 5.10    Insurance
110
Section 5.11    Taxes
110
Section 5.12    ERISA Compliance.
111
Section 5.13    Subsidiaries; Equity Interests
111
Section 5.14    Margin Regulations; Investment Company Act.
112
Section 5.15    Disclosure
112
Section 5.16    Sanctions and Anti-Corruption and Anti-Money Laundering Laws.
112
Section 5.17    Intellectual Property; Licenses, Etc
113
Section 5.18    Solvency
114
Section 5.19    [Reserved].
114
Section 5.20    Perfection, Etc
114
Section 5.21    Designated Senior Indebtedness
114
Section 5.22    [Reserved].
114
Section 5.23    EEA Financial Institution
114
Section 5.24    Qualified Cash
114
Section 5.25    Eligible Accounts
114
Section 5.26    Eligible Inventory
114
Section 5.27    Location of Inventory
114
Section 5.28    Inventory Records
115
Section 5.29    Employee and Labor Matters
115
ARTICLE VI    AFFIRMATIVE COVENANTS
115
Section 6.01    Financial Statements
115
Section 6.02    Certificates; Other Information
116
Section 6.03    Notices
118
Section 6.04    Payment of Taxes
119
Section 6.05    Preservation of Existence, Etc
119
Section 6.06    Maintenance of Properties
119
Section 6.07    Maintenance of Insurance
119



Table of Contents
(continued)
Page
Section 6.08    Compliance with Laws
120
Section 6.09    Books and Records
120
Section 6.10    Inspection Rights
120
Section 6.11    Use of Proceeds
120
Section 6.12    Covenant to Guarantee Obligations and Give Security.
121
Section 6.13    Further Assurances
122
Section 6.14    Preparation of Environmental Reports
123
Section 6.15    OFAC; Sanctions and Anti-Corruption and Anti-Money Laundering Laws
123
Section 6.16    Field Examinations and Inventory Appraisals
123
Section 6.17    Deposit Accounts; Securities Accounts.
124
Section 6.18    Inventory.
126
Section 6.19    Post-Closing Covenants
126
ARTICLE VII    NEGATIVE COVENANTS
126
Section 7.01    Liens
127
Section 7.02    Indebtedness
129
Section 7.03    Investments
130
Section 7.04    Fundamental Changes
132
Section 7.05    Dispositions
133
Section 7.06    Restricted Payments
135
Section 7.07    Change in Nature of Business
135
Section 7.08    Transactions with Affiliates
135
Section 7.09    Burdensome Agreements
136
Section 7.10    Financial Covenants
136
Section 7.11    Amendments of Organization Documents
137
Section 7.12    Accounting Changes
137
Section 7.13    Prepayments, Etc
137
Section 7.14    Speculative Transactions
137
Section 7.15    Spin-Off
137
ARTICLE VIII    EVENTS OF DEFAULT AND REMEDIES
137
Section 8.01    Events of Default
137
Section 8.02    Remedies upon Event of Default
140
Section 8.03    Application of Funds
140
ARTICLE IX    ADMINISTRATIVE AGENT
142
Section 9.01    Appointment and Authority.
142
Section 9.02    Rights as a Lender
144
Section 9.03    Exculpatory Provisions
145
Section 9.04    Reliance by the Administrative Agent
147
Section 9.05    Delegation of Duties
147
Section 9.06    Resignation of the Administrative Agent.
148



Table of Contents
(continued)
Page
Section 9.07    Non-Reliance on the Administrative Agent and Other Lenders
149
Section 9.08    The Administrative Agent May File Proofs of Claim
151
Section 9.09    Collateral and Guaranty Matters
152
Section 9.10    Other Agents; Arranger and Managers
153
Section 9.11    Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information
154
Section 9.12    Reliance and Liability
155
Section 9.13    Certain ERISA Matters.
155
Section 9.14    Intercreditor Agreement
156
ARTICLE X    MISCELLANEOUS
156
Section 10.01    Amendments, Etc
156
Section 10.02    Notices and Other Communications; Facsimile Copies.
158
Section 10.03    No Waiver; Cumulative Remedies
162
Section 10.04    Expenses; Indemnity; Damage Waiver.
163
Section 10.05    Payments Set Aside
166
Section 10.06    Successors and Assigns.
167
Section 10.07    Confidentiality; Tombstones; Press Release and Related Matters
173
Section 10.08    Setoff
174
Section 10.09    Interest Rate Limitation
174
Section 10.10    Counterparts
175
Section 10.11    Integration
175
Section 10.12    Survival of Representations and Warranties
175
Section 10.13    Severability
175
Section 10.14    Tax Forms.
176
Section 10.15    No Advisory or Fiduciary Responsibility
178
Section 10.16    Replacement of Lenders
179
Section 10.17    Governing Law.
179
Section 10.18    Waiver of Right to Trial by Jury
180
Section 10.19    Binding Effect
181
Section 10.20    Electronic Execution of Assignments and Certain Other Documents
181
Section 10.21    USA PATRIOT Act Notice
181
Section 10.22    Acknowledgment and Consent to Bail-in of Affected Financial Institutions
181
Section 10.23    Judgment Currency
182
Section 10.24    Additional Borrowers
182
Section 10.25    Joint and Several Liability of Borrowers.
183
Section 10.26    Bank Product Providers
186
Section 10.27    Acknowledgement Regarding any Supported QFCs
187
Section 10.28    Amendment and Restatement
188



Table of Contents
(continued)
Page
Schedules

1.01(a)    –    Administrative Agent’s Account
1.01(b)    –    Designated Account
1.01(c)     –    Existing Letters of Credit
1.01(d)    –    Guarantors
1.01(e)    –    Commitments and Pro Rata Shares
4.01    –    Opinion Jurisdictions
5.06    –    Litigation
5.09(c)    –    Environmental Matters
5.13    –    Subsidiaries; Equity Interests; Excluded Subsidiaries; Immaterial Subsidiaries
6.02(h)    –    Reports
6.17    –    Deposit Accounts; Securities Accounts
6.18    –    Locations of Eligible Inventory
6.19    –    Post-Closing Covenants
7.01(b)    –    Existing Liens
7.02(e)    –    Existing Indebtedness
7.03(d)    –    Existing Investments
10.02    –    Addresses for Notices

Exhibits

Exhibit 1.01(b)    –    Form of Notice of Borrowing
Exhibit 1.01(c)    –    Form of Notice of Conversion/Continuation
Exhibit 2.02(a)    –    Form of Swingline Request
Exhibit 2.03    –    Form of Request for Letter of Credit
Exhibit B    –    Form of Borrowing Base Certificate
Exhibit C    –    Form of Note
Exhibit D    –    Form of Compliance Certificate
Exhibit E    –    Form of Assignment and Acceptance
Exhibit F    –    Form of Solvency Certificate
Exhibit G-1–G-4 –     Forms of U.S. Tax Compliance Certificates
Exhibit I    –    Form of Notice of Additional Borrower
Exhibit J    –    Form of Borrower Termination Notice
Exhibit L    –    Form of Bank Product Provider Agreement
Exhibit M    –    Form of Intercompany Subordination Agreement






AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of August 5, 2022, among VISTA OUTDOOR INC., a Delaware corporation (the “Parent Borrower”), the ADDITIONAL BORROWERS from time to time party hereto, each lender from time to time party hereto (collectively, the “Lenders”), each L/C Issuer (as hereinafter defined) from time to time party hereto and CAPITAL ONE, NATIONAL ASSOCIATION, as the Administrative Agent (as hereinafter defined).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrowers have entered into a Credit Agreement, dated as of March 31, 2021 (as amended and in effect immediately prior to the Closing Date, the “Existing Credit Agreement”), among the Borrowers, the “Lenders” as defined therein, and Capital One, National Association, as Administrative Agent.
WHEREAS, pursuant to the terms of the Share Purchase Agreement dated as of June 30, 2022 (the “Fox Acquisition Agreement”), among Fox Parent Holdings, LLC, a Delaware limited liability company (“Seller”), Fox (Parent) Holdings, Inc., a Delaware corporation (the “Target”), and the Parent Borrower, the Parent Borrower will acquire, directly or indirectly, all of the issued and outstanding shares of common stock of the Target (the “Fox Acquisition”).
WHEREAS, in connection with the Fox Acquisition, the Borrowers have requested, and the Lenders have agreed, to enter into this Agreement in order to provide commitments for the Lenders to extend credit from time to time subject to the conditions set forth herein in the form of Loans in an initial aggregate principal amount of up to $600,000,000 to the Borrowers during the Availability Period of which, at any time, not more than $75,000,000 in aggregate principal, notional or stated amount may be in the form of L/C Credit Extensions provided by the L/C Issuers.
WHEREAS, in accordance with Section 10.01 of the Existing Credit Agreement, the parties hereto (including all of the “Lenders” under the Existing Credit Agreement) desire to amend and restate the Existing Credit Agreement as provided herein.
WHEREAS, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree that the Existing Credit Agreement shall be amended and restated in the form of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and subject to the satisfaction of the conditions set forth in Section 4.01 and Section 4.02, as applicable, the Lenders and each L/C Issuer are willing to extend such credit to the Borrowers. Accordingly, the parties hereto agree as follows:
ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
Section 1.01Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Acceptable Appraisal means, with respect to an appraisal of Inventory, the most recent appraisal of such property received by the Administrative Agent (a) from an appraisal
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company reasonably satisfactory to the Administrative Agent and (b) the scope and methodology (including, to the extent relevant, any sampling procedure employed by such appraisal company) of which are reasonably satisfactory to the Administrative Agent, in each case, in the Administrative Agent’s Permitted Discretion.
Account means an “account” as such term is defined in Article 9 of the UCC and any and all “supporting obligations” (as defined in Article 9 of the UCC) in respect thereof.
Account Debtor means any “account debtor” as such term is defined in Article 9 of the UCC.
Account Party has the meaning specified in Section 2.03(h).
Acquisition means, as to any Person, the purchase or other acquisition (in one transaction or a series of transactions, including through a merger) of greater than 50% of the Equity Interests of another Person or all or substantially all of the property, assets or business of another Person or of the assets constituting a business unit, line of business or division of another Person.
Act has the meaning specified in Section 10.21.
Activation Instruction has the meaning specified in Section 6.17(d).
Additional Borrower mean each wholly-owned Domestic Subsidiary that is added as an additional Borrower hereunder in accordance with the provisions set forth in Section 10.24(a), until such Domestic Subsidiary ceases to be an Additional Borrower in accordance with the provisions set forth in Section 10.24(b).
Additional Lender means any Eligible Assignee who agrees to provide Commitments in accordance with the provisions of Section 2.14 in connection with a request for a Revolving Credit Commitment Increase.
Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation, plus (b) the Term SOFR Adjustment; provided, that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
Administrative Agent means Capital One, National Association, in its capacity as administrative agent for the Lenders hereunder, and any successor administrative agent.
Administrative Agent’s Account means the Deposit Account of the Administrative Agent identified on Schedule 1.01(a) to this Agreement (or such other Deposit Account of the Administrative Agent that has been designated as such, in writing, by the Administrative Agent to the Borrowers and the Lenders).
Administrative Agent’s Office means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Parent Borrower and the Lenders.
Administrative Questionnaire means an administrative questionnaire in a form supplied by the Administrative Agent.
Affected Financial Institution” means (i) any EEA Financial Institution and (ii) any UK Financial Institution.




Affiliate means, with respect to any 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. “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.
Agent Parties has the meaning specified in Section 10.02(d).
Agent Reportmeans any audit or other report provided by the Administrative Agent or its Related Parties.
Aggregate Commitments means the Commitments of all the Lenders.
Agreement has the meaning specified in the introductory paragraph hereof.
Agreement Currency has the meaning specified in Section 10.23.
Alternative Currency means each of (a) Euro, (b) Sterling, (c) Yen and (d) any other currency that is readily available and freely transferable and convertible into Dollars that is approved by the Administrative Agent in its Permitted Discretion and the applicable L/C Issuer (such approval not to be unreasonably withheld).
Anti-Corruption and Anti-Money Laundering Laws means the FCPA, the U.K. Bribery Act 2010, as amended, and all other applicable laws, regulations and ordinances concerning or relating to bribery, money laundering (including any financial record keeping and reporting requirements related thereto) or corruption in any jurisdiction applicable to any Loan Party or any of its Subsidiaries.
Applicable Rate means, for any day, with respect to Base Rate Loans and SOFR Loans, the applicable rate per annum set forth below under the captions “Base Rate Percentage” and “SOFR Percentage”, respectively, based upon the Average Excess Availability for the fiscal quarter most recently ended prior to such day:
Pricing LevelAverage Excess AvailabilitySOFR PercentageBase Rate Percentage
1Greater than or equal to 66.67% of the Line Cap1.25%0.25%
2Less than 66.67% of the Line Cap but greater than or equal to 33.33% of the Line Cap1.50%0.50%
3Less than 33.33% of the Line Cap1.75%0.75%

The Applicable Rate shall be the rate set forth as Pricing Level 2 from the Closing Date until the end of the first full fiscal quarter following the Closing Date and thereafter shall be determined at the commencement of each subsequent fiscal quarter, with any changes in the Applicable Rate resulting from a change in Average Excess Availability calculated for the preceding fiscal quarter becoming effective on the first day of such subsequent fiscal quarter; provided, however, that if an Event of Default shall have occurred, then, at the Administrative Agent’s election, effective as of the date on which such Event of Default occurs and continuing through the date as of which such Event of Default is waived, if any, the Applicable Rate shall equal the highest




Applicable Rate specified in the pricing table set forth above. Notwithstanding anything herein to the contrary, Swing Loans may not be SOFR Loans.
In the event that any Borrowing Base Certificate delivered pursuant to Section 6.02(h) is inaccurate, and such inaccuracy, if corrected, would have led to the imposition of a higher Applicable Rate for any period than the Applicable Rate applied for that period, then (i) the Borrowers shall promptly deliver to the Administrative Agent a corrected Borrowing Base Certificate for that period (the “Corrected Financials Date”), (ii) the Applicable Rate shall be determined based on the corrected Borrowing Base Certificate for that period and (iii) the Borrowers shall promptly pay to the Administrative Agent (for the account of the Lenders that hold the Commitments and Loans at the time such payment is received, regardless of whether those Lenders held the Commitments and Loans during the relevant period) the accrued additional interest owing as a result of such increased Applicable Rate for that period; provided, for the avoidance of doubt, such deficiency shall be due and payable as at such Corrected Financials Date and no Default or Event of Default under Section 8.01(a) shall be deemed to have occurred with respect to such deficiency prior to such date. This paragraph shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.08(b) and Article VIII hereof, and shall survive the termination of this Agreement until the payment in full in cash of the aggregate outstanding principal balance of the Loans and the termination of the Commitments.
Application Event means the occurrence of (a) a failure by the Borrowers to make Payment in Full of the Obligations on the Maturity Date or (b) an Event of Default and the election by the Administrative Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 8.03 of this Agreement.
Approved Fund means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
Arrangers means, collectively, each of (a) Capital One, (b) JPMorgan Chase Bank, N.A., (c) PNC Capital Markets LLC and (d) The Huntington National Bank, each in its capacity as a joint lead arranger and a joint bookrunner.
Assignee Group means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Acceptance means an assignment and acceptance agreement entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)(iii)) in substantially the form of Exhibit E hereto.
Attorney Costs means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel.
Attributable Indebtedness means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount of all obligations of such Person in respect 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 of the remaining Synthetic Lease Obligations in respect of such Synthetic Lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such Synthetic Lease were accounted for as a Capitalized Lease.
Audited Financial Statements has the meaning specified in Section 4.01(d).




Availability Period means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each Lender to make Loans and of the obligations of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.03(d).
Average Excess Availability means, with respect to any period, (a) the sum of the aggregate amount of Excess Availability for each day in such period (as calculated by the Administrative Agent as of the end of each such period) divided by (b) the number of days in such period.
Average Revolver Usage means, with respect to any period, (a) the sum of the aggregate amount of Revolver Usage for each day in such period (calculated as of the end of each such day) divided by (b) the number of days in such period.
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 that 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).
Bank Product means any one or more of the following financial products or accommodations extended to any Loan Party or any of its Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) foreign exchange facilities, (f) Cash Management Services or (g) transactions under Hedge Agreements.
Bank Product Agreement means any agreement entered into from time to time by any Loan Party or any of its Subsidiaries with a Bank Product Provider in connection with the obtaining of any Bank Products.
Bank Product Obligations means (a) all obligations, liabilities, reimbursement obligations, fees or expenses owing by each Loan Party and its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations and (c) all amounts that the




Administrative Agent or any Lender is obligated to pay to a Bank Product Provider as a result of the Administrative Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to a Loan Party or any of their Subsidiaries.
Bank Product Provider means (a) any Lender or any of its Affiliates or (b) any Person who was a Lender or an Affiliate of a Lender at the time such Bank Product Agreement was entered into, in each case in its capacity as a party to a Bank Product Agreement (including any of the foregoing in its capacity, if applicable, as a Hedge Provider); provided, that no such Person (other than the Administrative Agent or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until the Administrative Agent receives a Bank Product Provider Agreement from such Person.
Bank Product Provider Agreement means an agreement in substantially the form attached hereto as Exhibit L to this Agreement, duly executed by the applicable Bank Product Provider, the Parent Borrower (on behalf of the Loan Parties) and the Administrative Agent.
Bank Product Reserves means, as of any date of determination, those reserves that the Administrative Agent deems necessary in its Permitted Discretion to establish (based upon the Bank Product Providers’ determination of the liabilities and obligations of the Loan Parties and their Subsidiaries in respect of Bank Product Obligations) in respect of the Bank Products Obligations then provided or outstanding.
Bankruptcy Code means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
Base Rate means, for any day, a floating interest rate per annum equal to the highest of (a) the rate of interest from time to time announced by the Administrative Agent at its principal office as its prime commercial lending rate (it being understood that such prime commercial rate is a reference rate and does not necessarily represent the lowest or best rate being charged by the Administrative Agent to any customer and such rate is set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors), (b) the sum of one half of one percent (0.50%) per annum and the Federal Funds Rate and (c) the sum of (x) Adjusted Term SOFR calculated for each such day based on an Interest Period of one month determined two (2) Business Days prior to such day, plus (y) the excess of the Applicable Rate for SOFR Loans over the Applicable Rate for Base Rate Loans, in each instance, as of such day.  Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the Administrative Agent’s prime commercial lending rate, the Federal Funds Rate or Adjusted Term SOFR for an Interest Period of one month.
Base Rate Loan means a Revolving Credit Loan that bears interest based on the Base Rate.
Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(a).




Benchmark Replacement” means with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent Borrower 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 to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such 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, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Parent Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
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 (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)     in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative or not to comply with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided, that such non-representativeness or non-compliance will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof)




announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, 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 or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative or do not, or as a specified future date will not, comply with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03.
Beneficial Ownership Certification means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulations means 31 C.F.R. §1010.230.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.




Borrower Materials has the meaning specified in Section 10.02(d).
Borrower Termination Notice means a Borrower Termination Notice, substantially in the form of Exhibit J.
Borrowers means, collectively, the Parent Borrower and any Additional Borrowers.
Borrowing means a borrowing consisting of (a) Revolving Credit Loans of the same Type, and, in the case of SOFR Loans, having the same Interest Period, made on the same day by the Lenders (or the Administrative Agent on their behalf), (b) Swing Loans made by the Swing Lender or (c) an Extraordinary Advance made by the Administrative Agent.
Borrowing Base means, at any time of calculation, an amount equal to, without duplication:
(a)    the sum of:
(i)    the lesser of (A) 100% of Qualified Cash and (B) $80,000,000; plus
(ii)    (A) 92.5% of the Eligible Investment Grade Accounts; plus (B) 90% of the Eligible Accounts (excluding any Eligible Account included in the Borrowing Base pursuant to clause (ii)(A) above), less (C) the amount, if any of the Dilution Reserve; plus
(iii) the product of 92.5% multiplied by the Net Orderly Liquidation Value of Eligible Inventory at such time; plus
(iv) the lesser of (A) the product of 92.5% multiplied by the Net Orderly Liquidation Value of Eligible In-Transit Inventory at such time and (B) $55,000,000; less
(b)    the aggregate amount of the Reserves.
The Administrative Agent may establish and modify Reserves in respect of the Borrowing Base, in each case in its Permitted Discretion, and any newly-established or modified Reserves shall become effective on the third Business Day after delivery of notice thereof to the Borrowers and the Lenders; provided that (A) no Borrower may obtain any new Revolving Credit Loans or Letters of Credit to the extent that such Revolving Credit Loan or Letter of Credit would cause an Overadvance or Event of Default after giving effect to the establishment or increase of any Reserve as set forth in such notice, (B) no such prior notice shall be required for changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation set forth in this Agreement or previously utilized by the Administrative Agent, (C) no such prior notice shall be required during the continuance of any Event of Default and (D) no such prior notice shall be required with respect to any Reserve established in respect of any Lien on Collateral that has priority over the Administrative Agent’s Lien on such Collateral; provided, however, that (x) a Reserve shall not be established to the extent it is duplicative of any other Reserve or items that are otherwise excluded through eligibility criteria and (y) the amount of any Reserve shall have a reasonable relationship to the circumstance, event, condition, contingencies or other matter that is the basis therefor; provided that, notwithstanding anything herein to the contrary, (A) from and including the Closing Date until the earlier of (x) the date of completion and delivery to the Administrative Agent of the applicable field examinations and inventory appraisals that are reasonably satisfactory to the Administrative Agent and (y) the 120th day after the Closing Date (or such




later date as the Administrative Agent may agree in its sole discretion), the Accounts and Inventory of the Target and its Subsidiaries shall be deemed Eligible Investment Grade Accounts, Eligible Accounts or Eligible Inventory (as applicable), with the advance rate for such Accounts and Inventory equal to 50% of the book value of such Accounts and Inventory, as applicable; provided that, in the event that the applicable field examinations and inventory appraisals that are reasonably satisfactory to the Administrative Agent have not been completed and delivered to the Administrative Agent on or prior to the 120th day after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), the Accounts and Inventory of the Target and its Subsidiaries shall be deemed to be equal to $0 commencing on the 121st day after the Closing Date until such time as the applicable field examinations and inventory appraisals that are reasonably satisfactory to the Administrative Agent have been completed and delivered to the Administrative Agent. A Reserve established by the Administrative Agent with respect to any circumstance, event, condition, contingency or other matter shall be promptly released or reduced upon such circumstance, event, condition, contingency or other matter ceasing to exist or otherwise being addressed by the Loan Parties, in each case, to the satisfaction of the Administrative Agent in its Permitted Discretion. In addition, the Administrative Agent may modify the Borrowing Base, in each case in its Permitted Discretion, to adjust for decreases or increases of the amount of Qualified Cash since the delivery of the most recent Borrowing Base Certificate, and in connection therewith the Administrative Agent shall deliver notice of such adjustment to the Parent Borrower on the date of any such adjustment. Subject to the preceding provisions of this paragraph and any other provisions hereof expressly permitting the Administrative Agent to adjust the Borrowing Base, the Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 6.02(h) or Section 7.05(i) (or, prior to the first such delivery, delivered to the Administrative Agent pursuant to Section 4.01(c)(iii)).
The Loan Parties hereby acknowledge and agree that no assets of any Loan Party shall at any time be included in the Borrowing Base unless and until the Administrative Agent shall have received an executed legal opinion, in form and substance reasonably satisfactory to the Administrative Agent with respect to such Loan Party (it being understood and agreed that as of the Closing Date, such opinions have been received for all Loan Parties other than Fiber Energy Products AR LLC).
Borrowing Base Certificate means a Borrowing Base Certificate, substantially in the form of Exhibit B.
Business Day means (i) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of. or are in fact closed in, the State of New York and (ii) if the applicable Business Day is with respect to any borrowing, continuation or conversion of any Credit Extension that bears interest based on Term SOFR, a day that is also a U.S. Government Securities Business Day.
Capital Expenditures means, for any period, with respect to any Person, the aggregate of, without duplication, all expenditures (whether paid in cash or financed) of such Person during such period that have been or should be, in accordance with GAAP, included as additions to property, plant or equipment on the consolidated balance sheet of such Person; provided, however, that Capital Expenditures shall not include: (a) expenditures to the extent they are made with the proceeds from the issuance of Equity Interests of the Parent Borrower after the Closing Date; (b) expenditures with proceeds of casualty insurance or condemnation awards in respect of lost, destroyed, damaged or condemned assets or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Parent Borrower and its Subsidiaries;




(c) interest capitalized during such period; (d) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding the Parent Borrower and any Subsidiary thereof) and for which neither of the Parent Borrower nor any Subsidiary thereof has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period); (e) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase or (ii) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business; (f) investments in respect of an Acquisition permitted hereunder; or (g) the purchase of property, plant or equipment to the extent made with the proceeds of any Disposition within 12 months of the receipt of such proceeds.
Capitalized Lease means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.
Cash Collateralize or “Cash Collateralization means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to the Administrative Agent (including that the Administrative Agent has a first priority perfected Lien in such cash collateral)) to be held by the Administrative Agent for the benefit of the Lenders in an amount equal to 105% of the then applicable Letter of Credit Usage, (b) delivering to the Administrative Agent documentation executed by all beneficiaries under the applicable Letters of Credit, in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer, terminating all of such beneficiaries’ rights under the applicable Letters of Credit or (c) providing the Administrative Agent with a standby letter of credit, in form and substance reasonably satisfactory to the Administrative Agent, from a commercial bank reasonably acceptable to the Administrative Agent (in its sole discretion) in an amount equal to 105% of the then existing Letter of Credit Usage.
Cash Dominion Period means any period (a) commencing on the date on which (i) a Specified Event of Default has occurred and is continuing or (ii) Excess Availability is less than the greater of (A) 10.0% of the Line Cap then in effect and (B) $57,000,000, for a period of 5 consecutive Business Days and (b) ending on the first date thereafter on which (i) Excess Availability has been equal to or greater than the greater of (A) 10.0% of the Line Cap then in effect and (B) $57,000,000, at all times for a period of 30 consecutive days and (ii) any such Specified Event of Default is no longer continuing.
Cash Equivalents means any of the following types of Investments, to the extent owned by the Parent Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and Specified Statutory Liens and, solely for purposes of Investments under Section 7.03(a), any other Permitted Liens):
(a)    readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof;
(b)    readily marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after the date of acquisition thereof and having, at the time of the acquisition thereof, a rating of at least P-1 from Moody’s or at least A-1 from S&P;




(c)    time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank or trust company that (i) (A) is a Lender, (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, or (C) any branch of a commercial bank that is organized in a jurisdiction outside of the United States so long as such branch is a licensed “bank” under the laws of the United States, any state thereof or the District of Columbia and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (d) of this definition and (iii) has combined capital and surplus of at least $500,000,000, in each case with maturities of not more than 360 days from the date of acquisition thereof;
(d)    commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 360 days from the date of acquisition thereof;
(e)    Investments, classified in accordance with GAAP as current assets of the Parent Borrower or any of its Subsidiaries, in money market investment programs or mutual funds registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and substantially all the assets of which are Investments of the character, quality and maturity described in clauses (a), (b), (c), and (d) of this definition;
(f)    repurchase obligations entered into with any commercial bank or trust company meeting the criteria specified in clause (c) above, covering the securities of the type described in clauses (a) and (b) above;
(g)    tax exempted instruments, including municipal bonds, auction rate preferred stock and variable rate demand obligations with the highest short-term ratings by either Moody’s or S&P or a long-term rating of Aaa by Moody’s or AAA by S&P maturing within 360 days after the acquisition thereof; and
(h)    foreign investments substantially comparable to any of the foregoing in connection with managing the cash of any Foreign Subsidiary.
Cash Management Services means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other customary cash management arrangements.
CFC means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957), but only if a U.S. Person that is an Affiliate of a Loan Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b)) described in Section 951(a)(1); and (b) each Subsidiary of any Person described in clause (a). For purposes of this definition, all Section references are to the Code.
Change in Law means the occurrence, after the Closing Date (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application




thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
Change of Control means, an event or series of events by which:
(a)    any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, 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 Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities 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 35% or more of the Equity Interests of the Parent Borrower entitled to vote for members of the board of directors or equivalent governing body of the Parent Borrower on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
(b)    a “change of control” or any comparable term defined or used in, or comparable event described under, any Material Debt Documents, shall have occurred in respect of the Parent Borrower.
Closing Date means the date on which the conditions specified in Section 4.01 are satisfied or waived in accordance with Section 10.01.
Closing Date Material Adverse Effect” shall have the meaning assigned to the term “Material Adverse Effect” in the Fox Acquisition Agreement as in effect on June 30, 2022.
Code means the Internal Revenue Code of 1986 as amended from time to time.
Collateral means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are intended under the express terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
Collateral Access Agreement means any landlord waiver, collateral access agreement, warehouseman or bailee letter or other agreement, in form and substance reasonably satisfactory to the Administrative Agent, between the Administrative Agent and any landlord for any leased real property where any Eligible Inventory or Eligible Equipment (as defined in the Term Loan Credit Agreement) or books and records related to Collateral are located or any warehouseman, bailee or consignee in possession of, having a Lien upon, or having rights or interests in respect of any Eligible Inventory or Eligible Equipment.
Collateral Documents means, collectively, the Security Agreement, the IP Security Agreements, the Collateral Access Agreements, the Security Agreement Supplements, the IP Security Agreement Supplements, and any other security agreements, pledge agreements, collateral assignments or other similar agreements delivered to the Administrative Agent or otherwise for the benefit of the Lenders pursuant to Section 6.12, and each of the other




agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
Collateral Report has the meaning specified in Section 6.12(a).
Collection Account means a Deposit Account of a Loan Party located in the United States which is used exclusively for deposits of collections and proceeds of Collateral and not as a disbursement or operating account upon which check or other drafts may be drawn.
Commitment means, with respect to each Lender, its “Revolving Credit Commitment”, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule 1.01(e) to this Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement and with respect to all Lenders, the aggregate amount of all such “Revolving Credit Commitments” on Schedule 1.01(e), as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 10.06 of this Agreement, and as such amounts may be decreased by the amount of reductions in the Revolving Credit Commitments made in accordance with Section 2.06 hereof. The aggregate principal amount of the Commitments on the Closing Date is $600,000,000.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute and the regulations promulgated from time to time thereunder.
Compensation Period has the meaning specified in Section 2.12(c)(ii).
Compliance Certificate means a certificate substantially in the form of Exhibit D.
Confirmation Agreement” has the meaning specified in the definition of “Loan Documents”.
Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of 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 “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.03 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.




Consolidated Cash Interest Charges means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, without duplication, the amount of Consolidated Interest Charges paid in cash during such period.
Consolidated EBITDA means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (without duplication) the following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b) income tax expense for such period, (c) depreciation and amortization for such period, (d) non-recurring or unusual expenses or charges or extraordinary expenses or charges for such period, including restructuring charges, accruals and reserves, severance costs (including severance or stay bonuses paid to employees, including related employee benefits attributable to such payments), relocation costs, retention and completion bonuses and integration costs, including any restructuring charges and integration costs related to any acquisition, project start-up costs, transition costs, costs related to the opening, closure and/or consolidation of offices and facilities (including the termination or discontinuance of activities constituting a business), contract termination costs and recruiting, signing and completion bonuses and expenses, in each case for such period; provided that (i) all amounts added back to Consolidated EBITDA pursuant to this clause (d) shall not exceed 25% of Consolidated EBITDA for such period calculated without giving effect to this clause (d) and (ii) the Parent Borrower shall provide the Administrative Agent with supporting information reasonably requested with respect to amounts added back to Consolidated EBITDA pursuant to this clause (d); (e) amortization or write off of deferred financing costs, (f) non-cash charges related to stock-based employee compensation, (g) non-cash charges associated with the mark-to-market of Swap Contracts, (h) impairment charges or write-offs with respect to goodwill and other intangible assets, (i) losses due solely to fluctuations in currency values and the related tax effects and (j) fees, costs and expenses in an aggregate amount not to exceed $20,000,000 incurred within 6 months of the Closing Date in connection with the Transactions during such period, and minus the following to the extent included in calculating such Consolidated Net Income: (1) gains due solely to fluctuations in currency values and the related tax effects; (2) non-recurring or unusual gains or extraordinary gains and (3) non-cash gains associated with the mark to market of Swap Contracts.
Consolidated Fixed Charge Coverage Ratio means, for any period, the ratio of (a)(i) Consolidated EBITDA for such period, minus (ii) the aggregate amount of all Capital Expenditures made by the Parent Borrower and its Subsidiaries during such period (other than Capital Expenditures to the extent financed with the proceeds of any incurrence of Indebtedness) to (b) Consolidated Fixed Charges for such period. Notwithstanding the foregoing, for purposes of calculating the Consolidated Fixed Charge Coverage Ratio for any applicable period after a permitted Disposition of a line of business of the Parent Borrower, including the fiscal quarter in which such Disposition occurred, the components of Consolidated Fixed Charges set forth in clauses (a) and (b) of this definition shall be calculated after giving pro forma effect thereto (provided that, with respect to clause (a)(ii) of this definition, the Parent Borrower has provided the Administrative Agent with reasonable back-up demonstrating such Capital Expenditures are attributable to the line of business subject to such Disposition).
Consolidated Fixed Charges means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) Consolidated Cash Interest Charges, plus (b) scheduled payments in cash of principal on Indebtedness for borrowed money required to be paid during such period (excluding, for the avoidance of doubt, payments made by the Parent Borrower or any Subsidiary to the Parent Borrower or another Subsidiary (other than any such scheduled payments owing from a Loan Party to any Subsidiary that is not a Loan Party)), plus (c) the aggregate amount of income taxes required to be paid in cash by the Parent Borrower and its Subsidiaries during such period plus (d) all Restricted Payments made in cash during such period.




Consolidated Interest Charges means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses (but not amortization or write-off of the costs of issuance) of the Parent Borrower and its Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP and (b) the portion of rent expense of the Parent Borrower and its Subsidiaries on a consolidated basis with respect to such period under Capitalized Leases that is treated as interest in accordance with GAAP.
Consolidated Leverage Ratio” means, with respect to any period, the ratio of (a) Consolidated Total Debt as of the last day of such period to (b) Consolidated EBITDA for such period.
Consolidated Net Income means, for any period, for the Parent Borrower and its Subsidiaries on a consolidated basis, the net income of the Parent Borrower and its Subsidiaries determined in accordance with GAAP (excluding (i) all extraordinary noncash gains and (ii) extraordinary noncash losses).
Consolidated Total Assets means, as of any date, the total consolidated assets of the Parent Borrower and its Subsidiaries, determined in accordance with GAAP, as set forth on the most recent consolidated balance sheet of the Parent Borrower delivered pursuant to Section 6.01(a) or (b) (or, prior to the first such delivery, Section 5.05(b)) calculated on a pro forma basis after giving effect to any Subject Disposition, Acquisition or Investment.
Consolidated Total Debt” means, at any date, the aggregate principal amount of all Indebtedness of the type described in clauses (a), (b) (solely with respect to any drawn and unreimbursed amounts thereof), (f), (g) and, solely to the extent relating to the foregoing, clauses (e) and (h) of the definition thereof, of the Parent Borrower and its Subsidiaries at such date, determined on a consolidated basis.
Contractual Obligation means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control Agreement means a control agreement, in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by the applicable Loan Party, the Administrative Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).
Conversion Date” means any date on which the Borrowers convert a Base Rate Loan to a SOFR Loan or a SOFR Loan to a Base Rate Loan.
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 Extension means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
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.




Deemed NOLV means the cash proceeds of Inventory which could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, commissions, operating expenses and retrieval and related costs), as determined and agreed between the Parent Borrower and the Administrative Agent prior to the Closing Date, and expressed as a recovery percentage with respect to each such category of assets.
Default means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default (it being understood that if any default is cured or waived prior to becoming an Event of Default, such default shall no longer constitute a Default).
Defaulting Lender means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Parent Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swing Loans or Extraordinary Advances) within 2 Business Days of the date when due, (b) has notified the Parent Borrower, the Administrative Agent or any L/C Issuer 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 good faith 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 3 Business Days after written request by the Administrative Agent or the Parent Borrower, to confirm in writing to the Administrative Agent and the Parent 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 Parent Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting 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, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Parent Borrower, the applicable L/C Issuer and each other Lender promptly following such determination.
Defaulting Lender Rate means (a) for the first 3 days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to




Revolving Credit Loans that are Base Rate Loans (inclusive of the Applicable Rate applicable thereto).
Deposit Account means a “deposit account” as such term is defined in Article 9 of the UCC.
Designated Account means the Deposit Account of the Parent Borrower identified on Schedule 1.01(b) to this Agreement (or such other Deposit Account of the Parent Borrower or another Borrower that has been designated as such, in writing, by the Parent Borrower to the Administrative Agent).
Dilution means, as of any date of determination, a percentage, based upon the 12 most recently ended full fiscal months, that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits or other dilutive items with respect to the Loan Parties’ Accounts during such period by (b) the Loan Parties’ total gross billings with respect to Accounts during such period.
Dilution Reserve means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Investment Grade Accounts or any other Eligible Accounts by the extent to which Dilution at such time is in excess of 5% (and, for the avoidance of doubt, no Dilution Reserve shall be imposed on the first 5% of Dilution of Eligible Accounts and, thereafter, no Dilution Reserve shall exceed 1% for each incremental whole percentage in Dilution of Eligible Accounts over 5%).
Disposition or “Dispose means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Equity Interests means, as to any Person, any Equity Interests of such Person or any other Person which, pursuant to the certificate of designation, or other corporate document or other agreement governing the terms thereof, such Person is obligated to purchase, redeem, retire, defease or otherwise acquire for value such Equity Interests or any warrants, rights or options to acquire such Equity Interests, on or prior to the date that is 91 days after the scheduled Maturity Date; the amount of the obligation to purchase, redeem, retire, defease or acquire any of the foregoing shall be with respect to (a) preferred Equity Interests, the liquidation preference or value of all shares, units or interests (including all accrued, accreted and paid-in-kind amounts as of any date of determination) in respect of such Disqualified Equity Interests and (b) all other Equity Interests, the aggregate amount of all such obligations in respect of such Disqualified Equity Interests as of any date of determination.
Dollar and “$” mean lawful money of the United States.
Domestic Subsidiary means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia, excluding, for the avoidance of doubt, any Subsidiary that is organized under the laws of Puerto Rico or any “possession of the United States” as that term is understood in Treasury Regulations Section 1.957-3(a)(2)(i).
Drawing Document means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including by Electronic Transmission such as SWIFT, electronic mail, facsimile or computer-generated communication.
E-Fax” means any system used to receive or transmit faxes electronically.




E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.
E-System” means any electronic system approved by the Administrative Agent, including Syndtrak®, Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent, any of its Related Parties or any other Person, providing for access to data protected by passcodes or other security system.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System.
Eligible Accounts means those Accounts created by a Loan Party in the ordinary course of its business, that arise out of such Loan Party’s sale of goods or rendition of services, that comply with each of the representations and warranties with respect to Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by the Administrative Agent in the Administrative Agent’s Permitted Discretion to address the results of any information with respect to the Loan Parties’ business or assets of which the Administrative Agent becomes aware after the Closing Date, including any field examination performed by (or on behalf of) the Administrative Agent from time to time after the Closing Date. In determining the amount to be included, Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, finance charges, service charges, discounts, credits, allowances, and rebates. Eligible Accounts shall not include the following:
(a)    Accounts that the Account Debtor has failed to pay within the earlier of (i) 120 days following its original invoice date or (ii) 60 days following its due date (or, solely with respect to Accounts included as Eligible Accounts by the proviso to clause (c) below, Accounts that the Account Debtor has failed to pay within the earlier of (x) 180 days following its original invoice date or (y) 30 days following its due date),
(b)    Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above,
(c)    Accounts with a due date more than 90 days following its original invoice date; provided that up to $70,000,000 of Accounts with a due date more than 90 days following




its original invoice date but fewer than 180 days following such original invoice date shall not be deemed ineligible solely due to this clause (c),
(d)    Accounts with respect to which the Account Debtor is an Affiliate of any Loan Party or an employee or agent of any Loan Party or any Affiliate of any Loan Party,
(e)    Accounts (i) arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional or (ii) with respect to which the payment terms are “C.O.D.”, cash on delivery or other similar terms,
(f)    Accounts that are not payable in Dollars,
(g)    Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office in the United States, the United Kingdom or Canada, (ii) is not organized under the laws of the United States, the United Kingdom or Canada or any state or province thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (A) the Account is supported by an irrevocable letter of credit reasonably satisfactory to the Administrative Agent (as to form, substance and issuer or domestic confirming bank) that has been delivered to the Administrative Agent and, if requested by the Administrative Agent, is directly drawable by the Administrative Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to the Administrative Agent; provided, that up to 10% of aggregate Eligible Accounts on any date of determination shall not be deemed ineligible solely due to clauses (i) or (ii) of this clause (g), so long as (x) the applicable Account Debtor is both organized under the laws of and maintains its chief executive office in one of Australia, Austria, Belgium, Denmark, Finland, France, Germany, Hong Kong, Israel, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Singapore, Sweden or Switzerland, and (y) the Administrative Agent has given its prior written consent to include with respect to such country, in its sole discretion,
(h)    Accounts with respect to which the Account Debtor is the United States, Canada (including the province of Alberta) or the United Kingdom, or any department, agency or instrumentality of the United States, Canada (including the province of Alberta) or the United Kingdom (exclusive, however, of Accounts with respect to which the Loan Parties have complied, to the reasonable satisfaction of the Administrative Agent, with the Assignment of Claims Act, 31 U.S.C. §3727 et seq., the Financial Administration Act (Canada), its provincial equivalent in Alberta or any other similar Law),
(i)    Accounts with respect to which the Account Debtor is a creditor of a Loan Party, has or has asserted a right of recoupment or setoff or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment or setoff or dispute,
(j)    Accounts with respect to an Account Debtor (other than Walmart, Inc. or any of its Affiliates) whose Eligible Accounts owing to the Loan Parties exceed 15% (or with respect to Walmart, Inc. or any of its Affiliates whose Eligible Accounts owing to the Loan Parties exceeds 30%) (such percentage, as applied to a particular Account Debtor, being subject to reduction by the Administrative Agent in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be




determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit,
(k)    Accounts with respect to which the Account Debtor is subject to an any proceeding commenced by or against any Person under any Debtor Relief Law, is not Solvent, has gone out of business, or as to which any Loan Party has received notice of an imminent proceeding commenced by or against any Person under any Debtor Relief Law or a material impairment of the financial condition of such Account Debtor,
(1)    Accounts the collection of which the Administrative Agent, in its Permitted Discretion, believes to be doubtful, including by reason of the Account Debtor’s financial condition,
(m)    Accounts that are not subject to a valid and perfected first priority Lien of the Administrative Agent,
(n)    Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor,
(o)    Accounts with respect to which the Account Debtor is a Restricted Party,
(p)    Accounts (i) that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by the applicable Loan Party of the subject contract for goods or services or (ii) that represent credit card sales, or
(q)    Accounts owned by a target acquired in connection with an Acquisition or Investment permitted under Section 7.03, or Accounts owned by a Person that is joined to this Agreement as a Loan Party pursuant to the provisions of this Agreement (including, without limitation, pursuant to Section 10.24), until the completion of a field examination with respect to such Accounts, in each case, satisfactory to the Administrative Agent in its Permitted Discretion.
Eligible Assignee means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) that receives the consents required by Section 10.06(b)(iii); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) the Borrowers or any of the Borrowers’ respective Affiliates or Subsidiaries, (y) any Defaulting Lender or any of its Affiliates or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y) or (z) a natural person.
Eligible In-Transit Inventory means Inventory of a Loan Party that does not qualify as Eligible Inventory solely because it is not in a location set forth on Schedule 6.18 to this Agreement or in transit among such locations and a Loan Party does not have actual and exclusive possession thereof, but as to which:
(a)    such Inventory currently is in transit (whether by vessel, air, or land) from a location outside of the continental United States to a location set forth on Schedule 6.18 to this Agreement (as such Schedule 6.18 may be amended from time to time with the prior written consent of the Administrative Agent),
(b)    title to such Inventory has passed to a Loan Party and the Administrative Agent shall have received such evidence thereof as it may from time to time require in its Permitted Discretion,




(c)    such Inventory is insured against types of loss, damage, hazards, and risks, and in amounts, reasonably satisfactory to the Administrative Agent in its Permitted Discretion, and the Administrative Agent shall have received a copy of the certificate of insurance in connection therewith in which it has been named as a lender loss payee in a manner reasonably acceptable to the Administrative Agent in its Permitted Discretion,
(d)    (i) such Inventory is the subject of a bill of lading (or other document of title) (which, if requested by the Administrative Agent in its sole discretion, shall be in negotiable form) with an “on board” notation governed by the laws of a state within the United States (A) that is consigned to the Administrative Agent (or to the Parent Borrower so long as the Administrative Agent may alter the consignee at any time an Event of Default has occurred and is continuing or a Cash Dominion Period is in effect), (B) that was issued by the carrier (including a non-vessel operating common carrier) in possession of the Inventory that is subject to such bill of lading (or other document of title), (C) that requires, in the event that such Inventory is subject to a negotiable document of title, such bill of lading (or other negotiable document of title) be surrendered to the carrier to permit possession of such Inventory, and (D) that either is in the possession of the Administrative Agent or a third party logistics provider pursuant to clause (iii) below (in each case in the continental United States), (ii) the Administrative Agent has either (A) entered into a written agreement by the seller of such Inventory, in form and substance reasonably satisfactory to the Administrative Agent, that waives all rights of stoppage, diversion or similar rights of the seller to such Inventory, or (B) the bill of lading (or other negotiable document of title) provides that the seller does not have any right of reclamation, stoppage, diversion or similar rights with respect to such Inventory, and (iii) unless otherwise agreed by the Administrative Agent in its sole discretion, the Administrative Agent, the applicable Loan Party and the third party logistics provider (including each the customs broker, freight-forwarder or other handler in possession of such Inventory or document of title) have entered into a tripartite agreement whereby such third party logistics provider has agreed to hold such Inventory, applicable bills of lading and all other documents of title for the benefit of the Administrative Agent and act as bailee for perfection for the Administrative Agent with respect to such Inventory, bills of lading and other documents of title,
(e)    such Inventory is in the possession of a common carrier (including on behalf of any non-vessel operating common carrier) that has issued the bill of lading or other document of title with respect thereto,
(f)    the Inventory and documents of title related thereto are subject to the valid and perfected first priority Lien of the Administrative Agent, and
(g)    such Inventory shall not have been in transit for more than 60 days.
Eligible Inventory means Inventory of a Loan Party, that complies with each of the representations and warranties in respect of Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by the Administrative Agent in the Administrative Agent’s Permitted Discretion to address the results of any information with respect to the Loan Parties’ business or assets of which the Administrative Agent becomes aware after the Closing Date, including any field examination or appraisal performed or received by the Administrative Agent from time to time after the Closing Date. An item of Inventory shall not be included in Eligible Inventory if:
(a)    a Loan Party does not have good, valid, and marketable title thereto,
(b)    a Loan Party does not have actual and exclusive possession thereof (either directly or through a bailee or agent of a Loan Party),




(c)    it is not located at one of the locations in the continental United States set forth on Schedule 6.18 to this Agreement (as such Schedule 6.18 may be amended from time to time with the prior written consent of the Administrative Agent) (or in-transit from one such location to another such location),
(d)    it is stored at locations holding less than $100,000 of the aggregate value of such Loan Party’s Inventory,
(e)    it is in-transit to or from a location of a Loan Party (other than in-transit from one location set forth on Schedule 6.18 to this Agreement to another location set forth on Schedule 6.18 to this Agreement (as such Schedule 6.18 may be amended from time to time with the prior written consent of the Administrative Agent)),
(f)    it is located on real property leased by a Loan Party or in a contract warehouse or with a bailee, in each case, unless either (i) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the case may be, and it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises or (ii) the Administrative Agent has established a Rent Reserve with respect to such location,
(g)    it is the subject of a bill of lading or other document of title,
(h)    it is not subject to a valid and perfected first priority Lien of the Administrative Agent,
(i)    it consists of goods returned or rejected by a Loan Party’s customers unless such goods are undamaged, have undergone a quality control review by such Loan Party in the ordinary course of business and are otherwise salable in the ordinary course of business,
(j)    it consists of goods that are obsolete, slow moving, spoiled or are otherwise past the stated expiration, “sell-by” or “use by” date applicable thereto, restrictive or custom items or otherwise is manufactured in accordance with customer-specific requirements, work-in-process, raw materials, or goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in the Loan Parties’ business, bill and hold goods, defective goods, “seconds,” or Inventory acquired on consignment,
(k)    it is subject to third party intellectual property, licensing or other proprietary rights, unless the Administrative Agent is satisfied that such Inventory can be freely sold by the Administrative Agent on and after the occurrence of an Event of Default despite such third party rights, or
(1)    it was acquired in connection with an Acquisition or Investment permitted under Section 7.03 of this Agreement, or such Inventory is owned by a Person that is joined to this Agreement as a Loan Party pursuant to the provisions of this Agreement, until the completion of an Acceptable Appraisal of such Inventory and the completion of a field examination with respect to such Inventory that is satisfactory to the Administrative Agent in its Permitted Discretion.
Eligible Investment Grade Account means, at any time, any Eligible Account of any Loan Party if the Account Debtor in respect of such Eligible Account is an Investment Grade Account Debtor.
Environmental Action means any claim, order, notice of violation, or notice of potential liability, issued against the Parent Borrower or any of its Subsidiaries, or any




proceeding or governmental investigation, instituted with respect to the Parent Borrower or any of its Subsidiaries, under or pursuant to any Environmental Law.
Environmental Laws means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the Release of any hazardous or toxic materials or waste into the environment.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Parent Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Lien means any Lien in favor of any Governmental Authority for Environmental Liabilities.
Environmental Permit means any permit, approval, identification number, license or other authorization required under any Environmental Law.
Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute thereto.
ERISA Affiliate means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any Loan Party or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan Party or any of its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under IRC Section 414(o).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section




4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or the receipt of notice by any Loan Party or any ERISA Affiliate that a Multiemployer Plan is in critical status; (d) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan, the treatment of a Pension Plan or a Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) a determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA or a plan in endangered or critical status within the meaning of Sections 431 and 432 of the Code or Sections 304 and 305 of ERISA; (h) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; or (i) the conditions for imposition of a lien (within the meaning of Section 430(k) of the Code or Section 303(k) of ERISA) are satisfied.
Erroneous Paymenthas the meaning assigned to it in Section 9.07(b).
Erroneous Payment Noticehas the meaning assigned to it in Section 9.07(b).
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Euro or “” means the single currency of the European Union as constituted by the Treaty on European Union as adopted as lawful currency by certain member states under legislation of the European Union for European Monetary Union.
Event of Default has the meaning specified in Section 8.01.
Excess Availability means, at any time, the amount that the Borrowers are entitled to borrow as Revolving Credit Loans under Section 2.01 of this Agreement (after giving effect to the then outstanding Revolver Usage) at such time; provided that no more than 25% of the Borrowing Base in any such calculation shall be derived from clause (a)(i) of the definition of the Borrowing Base.
Excluded Deposit Account means (a) any Deposit Account, the funds in which are used solely for the payment of salaries and wages, workers’ compensation, employee benefit plans (including funds held by the Parent Borrower or any Subsidiary in trust for any director, officer or employee of the Parent Borrower or any Subsidiary with respect thereto) or health benefit obligations and similar expenses (including payroll Taxes) in the ordinary course of business, (b) any Deposit Account that is a zero-balance disbursement account, (c) any Deposit Account the funds in which consist solely of cash earnest money deposits or funds deposited under escrow or similar arrangements in connection with any letter of intent or purchase agreement for an Acquisition or any other transaction, in each case, permitted hereunder and (d) any Deposit Account established by a Loan Party with amounts on deposit that do not exceed at any time (i) $5,000,000, when aggregated with the amounts on deposit in all other Deposit Accounts that are subject to this clause (d), plus all amounts held in Securities Accounts excluded pursuant to clause (b) of the definition of “Excluded Securities Accounts”, or (ii) $2,000,000, individually.




Excluded Joint Venture means (a) any Person described in clause (a) of the definition of Joint Venture or (b) any other Joint Venture that is entered into in accordance with Section 7.03(g) or (k) and designated as an Excluded Joint Venture by the Parent Borrower and certified by the Parent Borrower as being entered into in compliance with Section 7.03(g) or (k).
Excluded Securities Account means (a) any Securities Account the securities entitlements in which are used solely for the payment of salaries and wages, workers’ compensation, employee benefit plans (including funds held by the Parent Borrower or any Subsidiary in trust for any director, officer or employee of the Parent Borrower or any Subsidiary with respect thereto) or health benefit obligations and similar expenses (including payroll Taxes) in the ordinary course of business, and (b) any Securities Account established by a Loan Party with a balance that does not exceed at any time (i) $5,000,000, when aggregated with the amounts on deposit in all other Securities Accounts that are subject to this clause (b), plus all amounts held in Deposit Accounts excluded pursuant to clause (d) of the definition of “Excluded Deposit Accounts” or (ii) $2,000,000, individually.
Excluded Subsidiary means any (a) Subsidiary of the Parent Borrower that is prohibited by applicable Law or by contractual obligations existing on the Closing Date (or at the time such Subsidiary becomes a Subsidiary of the Parent Borrower, so long as such obligations were not incurred in connection with or in contemplation of it becoming a Subsidiary of the Parent Borrower) from guaranteeing the Obligations or if guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization, (b) CFC, (c) FSHCO, and (d) any Subsidiary in circumstances where the Parent Borrower and the Administrative Agent reasonably agree that the cost of providing a guarantee of the Obligations is excessive in relation to the value afforded thereby. The Excluded Subsidiaries on the Closing Date are set forth on Schedule 5.13; provided that any Subsidiary of the Parent Borrower that is a guarantor under the Term Facility shall not constitute an Excluded Subsidiary.
Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guaranty 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 1(e) of the Guaranty and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
Excluded Taxes has the meaning specified in Section 3.01(a).
Existing Credit Agreement has the meaning assigned to such term in the recitals to this Agreement.
Existing Letters of Credit means the letters of credit described on Schedule 1.01(c) hereto.
Existing Revolving Borrowings has the meaning specified in Section 2.14(c).




Extended Revolving Credit Commitment has the meaning specified in Section 2.18(a).
Extending Lender has the meaning specified in Section 2.18(a).
Extension has the meaning specified in Section 2.18(a).
Extension Offer has the meaning specified in Section 2.18(a).
Extraordinary Advance has the meaning specified in Section 2.02(f)(iv).
FATCA means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
Federal Acquisition Regulation means the Federal Acquisition Regulation, Title 48 of the Code of Federal Regulations, as amended, modified and supplemented from time to time.
Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as determined by the Administrative Agent in a commercially reasonable manner, but in no event less than 0.0% per annum.
Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.
Fee Letter means collectively, (i) that certain Amended and Restated Fee Letter, dated as of March 31, 2021, among the Parent Borrower and Capital One and (ii) that certain Fee Letter, dated as of June 30, 2022, among the Parent Borrower, JPMorgan Chase Bank, N.A. and Capital One.
Floor” means 0.00% per annum.
Foreclosed Borrower has the meaning specified in Section 10.25(g).
Foreign Government Scheme or Arrangement has the meaning specified in Section 5.12(d).
Foreign Lender means a Lender that is not a U.S. Person.
Foreign Subsidiary means any Subsidiary that is not a Domestic Subsidiary.




Fox Acquisition” has the meaning assigned to such term in the recitals to this Agreement.
Fox Acquisition Agreement” has the meaning assigned to such term in the recitals to this Agreement.
Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Usage attributable to Letters of Credit issued by such L/C Issuer, other than Letter of Credit Usage in respect of Letters of Credit and as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms of this Agreement, (b) with respect to the Swing Lender, such Defaulting Lender’s Pro Rata Share of the aggregate principal amount of the Swing Loans outstanding at such time, other than any portion of such Pro Rata Share that has been reallocated to other Lenders in accordance with the terms of this Agreement and (c) with respect to the Administrative Agent, such Defaulting Lender’s Pro Rata Share of the aggregate principal amount of the Extraordinary Advances outstanding at such time, other than any portion of such Pro Rata Share that has been reallocated to other Lenders in accordance with the terms of this Agreement.
FSHCO means any Domestic Subsidiary or non-U.S. disregarded entity, in each case that owns no material assets other than (a) Equity Interests or (b) Equity Interests and debt interests, in each case of one or more CFCs and/or of one or more FSHCOs.
Fund means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
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 consistently applied.
Government Contract” means any contract (as that term is defined in 48 C.F.R. § 2.101) between any Person and any Governmental Party; provided, that unless otherwise specified, all references to “Government Contract” or to “Government Contracts” shall refer to such contracts between any Loan Party and any Governmental Party.
Governmental Authority means the government of any nation, any state or other political subdivision thereof, and any agency, authority, instrumentality, regulatory body, court, administrative tribunal, 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).
Governmental Party means the United States Government (as used in 31 U.S.C. § 3727), the Government (as used in 48 C.F.R. subpart 32.8), the United States of America, the executive branch of the United States of America or any department or agency of any of the foregoing.
Governmental Requirement means all Laws, judgments, orders, writs, injunctions, opinions, decrees, awards, tariff requirements, franchises, permits, certificates, licenses, authorizations, interpretations and the like and any other requirements of any Governmental Authority.




Granting Lender has the meaning specified in Section 10.06(h).
Guarantee means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) entered into 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 (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (A) the stated or determinable amount of the related primary obligation and (B) the portion thereof expressly stated to be so guaranteed, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee as a verb has a corresponding meaning.
Guarantors means, collectively, the Parent Borrower, the Subsidiaries of the Parent Borrower listed on Schedule 1.01(d) and each other Domestic Subsidiary (other than any Excluded Joint Ventures and any Excluded Subsidiaries) of the Parent Borrower that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12 or Section 6.19.
Guaranty means, collectively, the ABL Guaranty made by the Guarantors on the Original Closing Date in favor of the Administrative Agent on behalf of the Lenders together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12 or Section 6.19.
Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Hedge Agreement means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
Hedge Obligations means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of each Loan Party and their respective Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
Hedge Provider means any Bank Product Provider that is a party to a Hedge Agreement with a Loan Party or any of their Subsidiaries or otherwise provides Bank Products under clause (g) of the definition of “Bank Products”.




Immaterial Subsidiary means any wholly-owned Domestic Subsidiary of the Parent Borrower that, as of the last day of the fiscal quarter of the Parent Borrower most recently ended and for which financial statements have been provided to the Administrative Agent pursuant to Section 6.01(a) or (b) hereof (or, prior to the first such delivery, referred to in Section 5.05(b)), did not have assets with a value in excess of 5.0% of the Consolidated Total Assets of the Parent Borrower and its wholly-owned Domestic Subsidiaries or revenues representing in excess of 5.0% of consolidated revenues of the Parent Borrower and its wholly-owned Domestic Subsidiaries for the 12-month period ended as of such date; provided that in the event that any wholly-owned Domestic Subsidiaries that would otherwise be Immaterial Subsidiaries shall, in the aggregate, account for a percentage in excess of 10.0% of the Consolidated Total Assets of the Parent Borrower and its wholly-owned Domestic Subsidiaries or 10.0% of the consolidated revenues of the Parent Borrower and its wholly-owned Domestic Subsidiaries as of the end of and for the most recently completed fiscal year for which financial statements have been provided to the Administrative Agent pursuant to Section 6.01(a) or (b) hereof (or, prior to the first such delivery, referred to in Section 5.05(b)), then one or more of such Subsidiaries designated by the Parent Borrower (or, if the Parent Borrower shall make no designation, one or more of such wholly-owned Domestic Subsidiaries that are not otherwise Excluded Subsidiaries selected in descending order based on their respective contributions to the Consolidated Total Assets of the Parent Borrower and its wholly-owned Domestic Subsidiaries), shall be included as Material Subsidiaries to the extent necessary to eliminate such excess and shall comply with the provisions of Section 6.12 applicable to such Subsidiary or Subsidiaries. Each Immaterial Subsidiary as of the Closing Date shall be set forth on Schedule 5.13.
Increase Effective Date has the meaning specified in Section 2.14(b).
Increased Reporting Event means if, at any time, Excess Availability is less than the greater of (a) 10% of the Line Cap, and (b) $57,000,000.
“Increased Reporting Period” means each period commencing with the occurrence of an Increased Reporting Event and ending on the subsequent date that Excess Availability has been equal to or greater than the greater of (a) 10% of the Line Cap, and (b) $57,000,000 for at least thirty (30) consecutive days.
Indebtedness means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)    the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c)    the monetary obligation of the Swap Termination Value of any Swap Contract of such Person;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) and, solely to the extent included as liabilities in accordance with GAAP, any earn out or similar obligation;




(e)    Indebtedness of the type described in clauses (a) through (d) above and clauses (f) through (h) below (excluding prepaid interest thereon) of others secured by a Lien on property owned by such Person (including obligations arising under conditional sales or other title retention agreements), whether or not such Indebtedness shall have been assumed by such Person or is limited in recourse (the amount of such Indebtedness being the lesser of (i) the principal amount of such Indebtedness and (ii) the book value of any assets subject to such Lien if such Lien is limited in recourse);
(f)    all Attributable Indebtedness of such Person;
(g)    all obligations of such Person in respect of Disqualified Equity Interests; and
(h)    all Guarantees (other than Performance Guarantees) of such Person in respect of 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 or other legal entity in respect of which the equity holders are not liable for the obligations of such entity as a matter of law) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.
Indemnified Liabilities has the meaning specified in Section 10.04(b).
Indemnified Taxes has the meaning specified in Section 3.01(a).
Indemnitees has the meaning specified in Section 10.04(b).
Individual Letter of Credit Sublimit means, (a) with respect to Capital One, $50,000,000, (b) with respect to JPMorgan Chase Bank, N.A., $25,000,000 and (c) with respect to any other L/C Issuer, such amount as is agreed to by such L/C Issuer and the Parent Borrower and consented to in writing by the Administrative Agent; provided, that any L/C Issuer may in its sole discretion agree to exceed its Individual Letter of Credit Sublimit with the consent of the Administrative Agent.
Information has the meaning specified in Section 10.07(a).
Initial Credit Extension means the Credit Extension to occur on the Closing Date.
Intercompany Subordination Agreement means an amended and restated intercompany subordination agreement dated as of the Closing Date, executed and delivered by one or more Loan Parties and one or more other Subsidiaries and the Administrative Agent in the form attached hereto as Exhibit M.
Intercreditor Agreement” means (i) the Intercreditor Agreement, dated as of the Closing Date, between the Administrative Agent and the Term Agent, and acknowledged by the Loan Parties, as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof or (ii) any other intercreditor agreement between the Administrative Agent and any agent or trustee with respect to the Term Facility or any Permitted Refinancing thereof that is in form and substance reasonably satisfactory to the Administrative Agent, as it may be amended, amended and restated,




supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.
Interest Payment Date means, (a) with respect to any SOFR Loan (other than a SOFR Loan having an Interest Period longer than three (3) months) the last Business Day of each Interest Period applicable to such Loan, (b) with respect to any SOFR Loan having an Interest Period of three (3) or more months, the last Business Day of each three (3) month interval and, without duplication, the last Business Day of such Interest Period, and (c) with respect to Base Rate Loans (including Swing Loans) the last Business Day of each calendar quarter.
Interest Period” means, with respect to any SOFR Loan, the period commencing on the Business Day such Loan is disbursed or continued or on the Conversion Date on which a Base Rate Loan is converted to a SOFR Loan and ending on the date one, three, or six months thereafter, as selected by the Parent Borrower in its Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(a)    if any Interest Period pertaining to a SOFR Loan would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;
(b)    any Interest Period pertaining to a SOFR 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 calendar month at the end of such Interest Period; and
(c)    no Interest Period for any Revolving Credit Loan shall extend beyond the Maturity Date.
Inventory means “inventory” as such term is defined in Article 9 of the UCC.
Inventory Reserves means, as of any date of determination, those reserves that the Administrative Agent deems necessary or appropriate, in its Permitted Discretion, to establish and maintain with respect to Eligible Inventory or Eligible In-Transit Inventory, including based on the results of appraisals.
Investment means, as to any Person, any direct or indirect investment by such Person, including (a) the purchase or other acquisition of Equity Interests or debt of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person, or (c) the purchase or other acquisition, in one transaction or a series of transactions, of assets of another Person that constitute a business unit or all or a substantial part of the business of such Person or any other Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but net of proceeds, payments and other returns thereon.
Investment Grade Account Debtor means, at any time, an Account Debtor that at such time has a corporate credit rating of BBB- or higher by S&P or Baa3 or higher by Moody’s.




IP Rights has the meaning specified in Section 5.17.
IP Security Agreement has the meaning specified in Section 14(f) of the Security Agreement together with each other intellectual property security agreement and IP Security Agreement Supplement delivered pursuant to Section 6.12 or Section 14(g) of the Security Agreement, in each case as amended.
IP Security Agreement Supplement has the meaning specified in Section 1(g)(vi) of the Security Agreement.
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.
ISP means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
Issuer Document means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of the L/C Issuer of such Letter of Credit and relating to such Letter of Credit.
Joint Venture means (a) (i) any corporation, partnership, limited liability company or other business entity (any such Person, a “Business Entity”) in which the Parent Borrower beneficially owns at least 20% but less than a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body of such Business Entity or (ii) any Business Entity in which the Parent Borrower beneficially owns at least 20% of the economic Equity Interests and directly or indirectly controls through one or more intermediaries at least 20% but less than a majority of the management of such Business Entity, or (b) any Subsidiary of the Parent Borrower at least 40% of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body is beneficially owned by, or the management of which is at least 40% is controlled, directly or indirectly, through one or more intermediaries, by one or more Business Entities other than the Parent Borrower or any of its Subsidiaries engaged in substantially one or more of the businesses in which the Parent Borrower and its Subsidiaries are engaged.
Judgment Currency has the meaning specified in Section 10.23.
Laws means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
L/C Borrowing means an extension of credit resulting from a drawing under any Letter of Credit which has neither been reimbursed on the date when made nor refinanced as a Borrowing.




L/C Credit Extension means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuers means collectively (a) Capital One, (b) JPMorgan Chase Bank, N.A., (c) a Lender selected by the Parent Borrower and consented to in writing by the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) and such Lender and (d) solely with any Existing Letter of Credit (or amendments thereto) that remains outstanding, the Lender that is the issuer thereof.
Lender has the meaning set forth in the preamble to this Agreement, including each L/C Issuer and Swing Lender, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 10.06 of this Agreement and “Lenders” means each of the Lenders or any one or more of them.
Lender Group Expenses has the meaning specified in Section 10.04(a).
Lending Office means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Parent Borrower and the Administrative Agent.
Letter of Credit means any letter of credit or equivalent foreign guaranty issued hereunder by an L/C Issuer and the Existing Letters of Credit. A Letter of Credit may be a documentary letter of credit or a standby letter of credit.
Letter of Credit Disbursement means a payment made by an L/C Issuer pursuant to a Letter of Credit.
Letter of Credit Expiration Date means the day that is 5 Business Days prior to the latest Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Exposure means, as of any date of determination with respect to any Lender, such Lender’s participation in the Letter of Credit Usage pursuant to Section 2.03(e) on such date.
Letter of Credit Fee has the meaning specified in Section 2.09(a)(iii).
Letter of Credit Indemnified Costshas the meaning specified in Section 2.03(f).
Letter of Credit Related Person has the meaning specified in Section 2.03(f).
Letter of Credit Sublimit means $75,000,000.
Letter of Credit Usage means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit (determined, in the case of Letters of Credit denominated in an Alternative Currency, by reference to the Spot Rate on such date of determination), plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or which have not been paid through a Revolving Credit Loan including, without duplication, any L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,




such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, the presence of a filed financing statement under the UCC (or equivalent statutes) of any jurisdiction shall not in and of itself be deemed to constitute a Lien.
Line Cap means, at any time, the lesser of (a) the Borrowing Base (based upon the most recent Borrowing Base Certificate delivered by the Parent Borrower to the Administrative Agent, as adjusted for declines or increases of Qualified Cash or Reserves established by the Administrative Agent in accordance with this Agreement) and (b) the Aggregate Commitments, in each case as in effect at such time.
Loan Account has the meaning specified in Section 2.11(a).
Loan Documents means, collectively, this Agreement, the Fee Letter, the Notes, the Guaranty, the Collateral Documents, the Intercompany Subordination Agreement, the Intercreditor Agreement, the Confirmation and Ratification to Ancillary Loan Documents (the “Confirmation Agreement”) and any other agreement, document or instrument entered into now or in the future in connection with this Agreement.
Loans means the Revolving Credit Loans, Swing Loans and Extraordinary Advances made by the Lenders to the Borrowers pursuant to this Agreement.
Loan Parties means, collectively, the Borrowers and each Guarantor.
Margin Stock has the meaning specified in Regulation U of the Federal Reserve Board.
Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties or financial condition of the Parent Borrower and its Subsidiaries, taken as a whole; or (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to perform its payment obligations under any Loan Document to which it is a party or the Administrative Agent’s ability to realize on the Collateral (except to the extent such impairment results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or of the Administrative Agent to file Uniform Commercial Code continuation statements).
Material Debt means the Term Facility and any other Indebtedness (other than under the Loan Documents) having an aggregate principal amount equal to or greater than $50,000,000; provided that, except for purposes of determining the Threshold Amount (which shall include all Material Debt), Material Debt shall not include Indebtedness of the type described under Section 7.02(f) or Guarantees in respect of the foregoing.
Material Debt Documents means any agreements, instruments and other documents in respect of any Material Debt including, as of the Closing Date, and the Senior Notes Documents, in each case as such agreements, instruments or other documents may be




amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, but to the extent permitted under the terms of the Loan Documents.
Material Subsidiary means any Subsidiary other than an Immaterial Subsidiary.
Maturity Date means the earliest of (a) March 31, 2026 or if the maturity of the Revolving Credit Facility is extended pursuant to Section 2.18, such extended maturity date as determined pursuant to such Section, (b) the date that is 91 days prior to the earliest final maturity of the Senior Notes (or any refinancings, refundings, renewals or extensions thereof) but only if any such Indebtedness remains outstanding on such date, (c) the date that is 91 days prior to the earliest final maturity of the Term Facility or any Permitted Refinancing thereof, but only if the Term Facility (or any Permitted Refinancing thereof) remains outstanding on such date and (d) the date of termination in whole of the Commitments pursuant to Section 2.06 or 8.02.
Maximum Rate has the meaning specified in Section 10.09.
Moody’s means Moody’s Investors Service, Inc. and any successor thereto.
Multiemployer Plan means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding 5 plan years, has made or been obligated to make contributions.
Net Cash Proceeds means, with respect to any Disposition or receipt of casualty insurance or condemnation awards by the Parent Borrower or any Loan Party, the excess, if any, of (a) the sum of the cash and Cash Equivalents received in connection with such transaction over (b) the sum of all out-of-pocket fees, costs and other expenses paid to third parties (other than Affiliates) by the Parent Borrower or any other Loan Party in connection with such transaction and the amount of all taxes paid (or reasonably estimated to be payable), and the amount of any reserves established in accordance with GAAP to fund purchase price adjustment, indemnification and similar contingent liabilities (other than any earnout obligations) reasonably estimated to be payable, in each case attributable to the occurrence of such event (as determined reasonably and in good faith by a Responsible Officer); provided, that if any contingency with respect to any such reserve no longer exists (as determined reasonably and in good faith by a Responsible Officer), the amount of such reserve (or the residual amount of such reserve, as applicable) shall then constitute Net Cash Proceeds.
Net Orderly Liquidation Value means the cash proceeds of Inventory which could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, commissions, operating expenses and retrieval and related costs), as determined pursuant to the most recent appraisal of such Inventory delivered to the Administrative Agent pursuant to Section 6.16 and expressed as a recovery percentage with respect to each such category of assets; provided that prior to the first Acceptable Appraisal received by the Administrative Agent under this Agreement (including pursuant to the requirements of Section 6.19), the “Net Orderly Liquidation Value” shall be deemed to be the applicable Deemed NOLV.
Note means a promissory note of the Borrowers payable to any Lender or its registered assigns, in substantially the form of Exhibit C hereto, evidencing the aggregate indebtedness of the Borrowers to such Lender resulting from the Loans made by such Lender.
Notice of Additional Borrower means a Notice of Additional Borrower in substantially the form of Exhibit I hereto.




Notice of Borrowing” means a notice given by the Parent Borrower to the Administrative Agent pursuant to Section 2.02(a), in substantially the form of Exhibit 1.01(b) hereto.
Notice of Conversion/Continuationas defined in Section 2.02(c), in substantially the form of Exhibit 1.01(c) hereto.
Obligations means (a) all loans (including the Revolving Credit Loans (inclusive of Extraordinary Advances and Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of a proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding under any Debtor Relief Laws), reimbursement or indemnification obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities, obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of a proceeding under the Debtor Relief Laws, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding under the Debtor Relief Laws), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party under this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents and (b) all Bank Product Obligations; provided that, notwithstanding anything to the contrary in this definition, the Obligations of any Loan Party shall exclude its Excluded Swap Obligations. Without limiting the generality of the foregoing, the Obligations of the Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Revolving Credit Loans, (ii) interest accrued on the Revolving Credit Loans, (iii) the amount necessary to reimburse L/C Issuer for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior to and after the commencement of a proceeding under any Debtor Relief Laws.
OFAC means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
Organization Documents means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity (or in each case equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).
Original Closing Date” means the closing date of the Existing Credit Agreement, which date was March 31, 2021.




Other Connection Taxes means, with respect to any Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Person and the jurisdiction imposing such Tax (other than connections arising solely from such Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document or sold or assigned an interest in any Loan or Loan Document).
Other Taxes has the meaning specified in Section 3.01(b).
Overadvance means, as of any date of determination, that the Revolver Usage is greater than the Line Cap.
Paid in Full or “Payment in Full means, with respect to the Obligations, (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and accrued and unpaid interest with respect to, all outstanding Loans, (ii) all Lender Group Expenses that have accrued and are unpaid and then owed and (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) all outstanding Letters of Credit shall have been (i) terminated, (ii) fully Cash Collateralized, (iii) secured by one or more letters of credit on terms and conditions, and with one or more financial institutions, reasonably satisfactory to the applicable L/C Issuer(s) or (iv) continued under a credit facility that in part or in whole replaces or refinances this Agreement or otherwise treated in a manner satisfactory to the applicable L/C Issuer(s), in either case, pursuant to an arrangement resulting in the simultaneous termination (in a manner satisfactory to the Administrative Agent, in its sole discretion) of the participations of the Lenders under this Agreement in such Letters of Credit, (c) the receipt by the Administrative Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to the Administrative Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses) and identified to the Parent Borrower, such cash collateral to be in such amount as the Administrative Agent determines in its Permitted Discretion is appropriate to secure such contingent Obligations, (d) the payment or repayment in full in immediately available funds of all fees and other amounts outstanding and then owing under Bank Product Obligations or in respect of matters or circumstances known to the Administrative Agent or a Lender at such time that are reasonably expected to result in any fees or other amounts to be owing and identified to the Parent Borrower or the receipt by the Administrative Agent of cash collateral in order to secure any such Obligations that are allowed by the applicable Bank Product Provider to remain outstanding without being required to be repaid (other than any Bank Product Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid or cash collateralized), and (e) the termination or expiration of all of the Commitments of the Lenders.
Parent Borrower has the meaning assigned to such term in the introductory paragraph hereof.
Participant has the meaning specified in Section 10.06(d).
Participant Register has the meaning assigned to such term in Section 10.06(d).
Payment” has the meaning assigned to such term in Section 9.07(b).
Payment Conditions means, at the time of determination with respect to a transaction or a proposed payment to fund a proposed transaction, that:




(a)    no Specified Event of Default then exists or would arise as a result of the consummation of such proposed transaction;
(b)    either
(i)    Excess Availability, in each case, is not less than the greater of (A) 15.0% of the Line Cap, and (B) $86,000,000, at all times during the 30 day period prior to such proposed transaction or payment and after giving effect to such proposed payment and proposed transaction; or
(ii)    both (A) the Consolidated Fixed Charge Coverage Ratio is equal to or greater than 1.00:1.00 for the Test Period most recently ended (calculated on a pro forma basis and including the cash amount of any proposed payment as a Consolidated Fixed Charge made on the last day of such Test Period (provided that unless any such proposed payment is a Consolidated Fixed Charge under the definition thereof, such proposed payment shall not be considered a Consolidated Fixed Charge for purposes of calculating the Consolidated Fixed Charge Coverage Ratio under this clause (ii) for any subsequent proposed payment to fund a subsequent transaction in reliance on Payment Conditions)); and (B) Excess Availability is not less than the greater of (x) 12.5% of the Line Cap, and (y) $69,000,000 (at all times during the 30 day period prior to such proposed transaction or payment and after giving effect to such proposed payment and proposed transaction), in each case after giving effect to such proposed payment and proposed transaction; and
(c)    if (x) the amount of any such proposed transaction or payment exceeds $25,000,000 or (y) the aggregate amount of any such transactions consummated or payments made since the later of (A) the date the most recent Borrowing Base Certificate was furnished to the Administrative Agent pursuant to Section 6.02(h) and (B) the date of the most recent certificate furnished to the Administrative Agent pursuant to this clause (c) exceeds $25,000,000, the Parent Borrower shall have delivered a certificate to the Administrative Agent certifying that all conditions described in clauses (a) and (b) above have been satisfied; provided that, for the avoidance of doubt, the conditions in the foregoing clauses (a) and (b) must be satisfied at the time of each such proposed transaction or payment.
Payment Notice” has the meaning assigned to such term in Section 9.07(b)(ii).
PBGC means the Pension Benefit Guaranty Corporation.
Pension Plan means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding 5 plan years.
Performance Guarantee means any guarantee by any Person of the performance of the obligations of another Person (other than obligations in respect of payments, indebtedness or other monetary obligations of any kind) under contracts of such other Person to design, develop, manufacture, construct or produce products or production facilities (and related nonmonetary obligations) or to provide services related to any of the foregoing.
Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.




Permitted Acquisition means any Acquisition so long as:
(a)    (i) no Indebtedness will be incurred, assumed or would exist with respect to any Loan Party or their respective Subsidiaries as a result of such Acquisition, other than Indebtedness permitted under Section 7.02 and (ii) no Liens will be incurred, assumed, or would exist with respect to the assets of any Loan Party or their respective Subsidiaries as a result of such Acquisition other than Liens permitted under Section 7.01 (and no Liens with respect to Indebtedness for borrowed money will be incurred, assumed, or would exist in connection with such Acquisition on acquired Collateral other than pursuant to Section 7.01(a) or (j));
(b)    the material lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall comply with Section 7.07;
(c)    each applicable Loan Party and any such newly created or acquired Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of Section 6.12 to the extent required thereby;
(d)    such Acquisition shall not be hostile and shall have been approved by the board of directors (or other similar body) and/or the stockholders or other equityholders of the target;
(e)    the Payment Conditions are satisfied; and
(f)    if the aggregate consideration paid in connection with the proposed Acquisition exceeds $50,000,000 (including deferred and contingent amounts) and, at the time of the consummation of such Acquisition and after giving pro forma effect thereto, the then outstanding Revolver Usage exceeds 30% of the Line Cap, the Parent Borrower shall (i) have provided the Administrative Agent with written notice of the proposed Acquisition at least 15 Business Days prior to the anticipated closing date of the proposed Acquisition and copies of the acquisition agreement and other material documents relative to the proposed Acquisition at least 5 Business Days prior to the anticipated closing date of the proposed Acquisition (or, in either case, such shorter period as agreed to by the Administrative Agent) and (ii) upon the request of the Administrative Agent in its Permitted Discretion, have provided the Administrative Agent with (or access to) due diligence materials of the Parent Borrower relative to the proposed Acquisition, including, if available, forecasted balance sheets, profit and loss statements, cash flow statements and projections of the Person or assets to be acquired (including any pro forma or standalone financial statements created by any Person in connection with the proposed Acquisition and available to the Parent Borrower), all prepared on a basis consistent with such Person’s (or assets’) historical financial statements, together with appropriate supporting details and a statement of underlying assumptions for the one-year period following the date of the proposed Acquisition (on a quarter-by-quarter basis).
Permitted Discretion means the exercise of the Administrative Agent’s reasonable business judgment (from the perspective of a secured asset-based lender).
Permitted Liens means any Liens permitted under Section 7.01 hereof.
Permitted Protest means the right of any Loan Party or any of its Subsidiaries to protest any tax Lien; provided, that (a) a reserve with respect to the underlying tax obligation is established on such Loan Party’s or its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good faith, and (c) either (i) the Administrative Agent is satisfied in its Permitted Discretion that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of the




Administrative Agent’s Liens, (ii) such Lien is bonded in a manner satisfactory to the Administrative Agent in its Permitted Discretion or (iii) the Administrative Agent has established a Reserve equal to the amount secured by such Lien.
Permitted Refinancing” means any Indebtedness issued in exchange for, or the net proceeds of which” are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness under the Term Credit Agreement (or previous refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal amount of such Permitted Refinancing does not exceed the principal amount of the Indebtedness so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced, (c) such Permitted Refinancing shall have a final maturity that is no earlier than the final maturity date of such Indebtedness being Refinanced, (d) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors of the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced, (e) such Permitted Refinancing and the Liens securing such Permitted Refinancing shall be subject to the Intercreditor Agreement, and (f) no Permitted Refinancing shall be secured by any assets of the Loan Parties or their Subsidiaries that did not secure the Indebtedness being Refinanced.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
Platform has the meaning specified in Section 10.02(d).
Pledged Debt has the meaning specified in Section 1(d)(iv) of the Security Agreement.
Pledged Equity has the meaning specified in Section 1(d)(iii) of the Security Agreement.
Pro Rata Share means,
(a)    with respect to a Lender’s obligation to make all or a portion of the Revolving Credit Loans, right to receive payments of interest, fees and principal with respect to the Revolving Credit Loans and all other computations and other matters related to the Commitments or the Revolving Credit Loans, the percentage obtained by dividing (i) the Revolving Credit Loan Exposure of such Lender by (ii) the aggregate Revolving Credit Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 10.06;
(b)    with respect to a Lender’s obligation to participate in Letter of Credit Usage, obligation to reimburse any L/C Issuer, right to receive payments of Letter of Credit Fees with respect to Letter of Credit Usage and all other computations and other matters related to the Letter of Credit Usage, the percentage obtained by dividing (i) the Revolving Credit Loan Exposure of such Lender, by (ii) the aggregate Revolving Credit Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 10.06; provided that if all of the Revolving Credit Loans have been repaid in full and all Commitments have been terminated, but Letter of Credit Usage remains outstanding, Pro Rata




Share of each Lender under this clause (b) shall be determined based on the Pro Rata Share of such Lender most recently in effect prior to all of the Revolving Credit Loans having been repaid in full, as the applicable percentage may be adjusted by subsequent assignments permitted pursuant to Section 10.06;
(c)    [reserved];
(d)    [reserved], and
(e)    with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 10.04 of this Agreement), the percentage obtained by dividing (i) the Revolving Credit Loan Exposure of such Lender by (ii) the aggregate Revolving Credit Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 10.06; provided, that if all of the Revolving Credit Loans have been repaid in full and all Commitments have been terminated, Pro Rata Share of each Lender under this clause (e) shall be determined based on the Pro Rata Share of such Lender most recently in effect prior to all of the Revolving Credit Loans having been repaid in full, as the applicable percentage may be adjusted by subsequent assignments permitted pursuant to Section 10.06.
The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 1.01(e) or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable.
Projections means the Parent Borrower’s forecasted (a) balance sheets, (b) income statements, (c) cash flow statements, and (d) Borrowing Base and Excess Availability, all prepared on a basis consistent with the Parent Borrower’s historical financial statements, together with reasonable supporting details regarding underlying assumptions.
Protective Advances has the meaning specified in Section 2.02(f)(i).
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 Lender has the meaning specified in Section 10.02(d).
Qualified Cash means unrestricted cash and Cash Equivalents of a Loan Party held in a Deposit Account or Securities Account maintained in the United States with the Administrative Agent as security for the Obligations, and in which the Administrative Agent has a first priority perfected security interest and which is subject to a Control Agreement (and, if such Deposit Account or Securities Account is maintained with a Lender other than the Administrative Agent, with respect to which the Administrative Agent has access to reports of the balance of such Deposit Account or Securities Account no less frequently than once per Business Day (or such other frequency as is reasonably acceptable to the Administrative Agent in its Permitted Discretion)); provided that, notwithstanding the foregoing, during the period from the Closing Date through the date that is 120 days after the Closing Date, unrestricted cash and Cash Equivalents of a Loan Party held in a Deposit Account or Securities Account maintained with JPMorgan Chase Bank, N.A. and which is not subject to a Control Agreement shall be deemed “Qualified Cash” for all purposes under this Agreement.
Receivable Reserves means, as of any date of determination, those reserves that the Administrative Agent deems necessary or appropriate in its Permitted Discretion, to establish and maintain with respect to the Eligible Accounts.




Register has the meaning specified in Section 10.06(c).
Related Indemnified Party means, with respect to any Indemnitee which term shall include for purposes of this definition, any Letter of Credit Related Person indemnified pursuant to Section 2.03(f), (a)(i) any controlling person of such Indemnitee or (ii) any controlled Affiliate of such Indemnitee, in each case of this clause (a), acting at the instructions of such Indemnitee, (b) the respective officers, directors and employees of such Indemnitee or any of its controlling Persons or controlled Affiliates and (c) the respective agents, advisors and representatives of such Indemnitee or any of its controlling Persons or controlled Affiliates, in the case of this clause (c), acting at the instructions of such Indemnitee.
Related Parties means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article IV) and other consultants and agents of or to such Person or any of its Affiliates.
Release shall have the meaning ascribed to it in Section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act, 42. U.S.C. § 9601 et. seq. or any other Environmental Law.
Relevant Governmental Body means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
Rent Reserve means, as to each location at which a Loan Party has Eligible Inventory or books and records located and as to which a Collateral Access Agreement has not been received by the Administrative Agent, either (a) a reserve in an amount equal to all past due rent plus 3 months’ rent, storage charges, fees or other amounts under the lease or other applicable agreement relative to such location or (b) if greater and the Administrative Agent so elects in its Permitted Discretion, the number of months’ rent, storage charges, fees or other amounts for which the landlord, bailee, warehouseman or other property owner may have, under applicable law, a Lien on the Eligible Inventory of such Loan Party to secure the payment of such amounts under the lease or other applicable agreement relative to such location.
Report has the meaning specified in Section 9.11(a).
Reportable Event means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
Request for Credit Extension means (a) with respect to a Borrowing, a Notice of Borrowing, (b) with respect to a conversion or continuation of Loans, a Notice of Conversion/Continuation, and (c) with respect to an L/C Credit Extension, a request for a Letter of Credit.
Required Lenders means, at any time, Lenders having or holding more than 50% of the aggregate Revolving Credit Loan Exposure of all Lenders; provided, that (i) the Revolving Credit Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders and (ii) at any time there are two or more Lenders (who are not Affiliates of one another), “Required Lenders” must include at least two Lenders (who are not Affiliates of one another).
Reserves means, as of any date of determination, without duplication, Inventory Reserves, the Receivables Reserves, Rent Reserves, Bank Product Reserves and those other reserves (other than any Dilution Reserves) that the Administrative Agent deems necessary or




appropriate, in its Permitted Discretion, to establish and maintain, including reserves with respect to (a) sums that any Loan Party is required to pay under any Section of this Agreement or any other Loan Document and has failed to pay, and (b) amounts owing by any Loan Party to any Person to the extent secured by a Lien on, or trust over, any of the Collateral, which Lien or trust, in the Permitted Discretion of the Administrative Agent likely would have a priority superior to the Administrative Agent’s Liens in and to such item of the Collateral.
Resignation Effective Date has the meaning specified in Section 9.06(a).
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Responsible Officer” means the chief executive officer, chief financial officer, treasurer or the general counsel of a Loan Party, as applicable, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial information, the chief financial officer or the treasurer of the applicable Loan Party, or any other officer having substantially the same authority and responsibility.
Restricted Party means a Person:
(a)    whose name is listed on, or that is acting on behalf of a Person whose name is listed on, any Sanctions List;
(b)    that is incorporated under the laws of, or that is acting on behalf of, a Person incorporated under the laws of, a country or territory that is the target of country-wide or territory-wide Sanctions;
(c)    that is otherwise the target of any Sanction; or
(d)    directly or indirectly owned or controlled by any such Person or Persons described in clauses (a) through (c) of this definition.
Restricted Payment means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Parent Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Parent Borrower’s stockholders, partners or members (or the equivalent Persons thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment or (b) any payment (excluding (x) scheduled payments of principal and interest, (y) any contingent interest payable under any convertible notes and (z) payments of accrued interest in connection with a prepayment, redemption or purchase of Indebtedness otherwise permitted by this Agreement, in each case not in violation of any applicable subordination provisions), prepayment, redemption (whether at the option of the holder or otherwise), purchase, defeasance, distribution involving cash, acquisition or other retirement for value in respect of any contractually subordinated Indebtedness or any convertible debt securities or instruments (which, for the avoidance of doubt, shall not include Indebtedness under the Senior Notes), in each case, of the Parent Borrower or any Subsidiary.
Resulting Revolving Borrowings has the meaning specified in Section 2.14(c).




Revolver Usage means, as of any date of determination, the sum of (a) the amount of outstanding Revolving Credit Loans (inclusive of Swing Loans and Extraordinary Advances) at such time, plus (b) the amount of the Letter of Credit Usage at such time.
Revolving Credit Commitment Increase has the meaning specified in Section 2.14(a).
Revolving Credit Facility means, at any time, the aggregate amount of the Lenders’ Commitments at such time.
Revolving Credit Loan has the meaning specified in Section 2.01(a).
Revolving Credit Loan Exposure means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Commitments, the amount of such Lender’s Commitment, and (b) after the termination of the Commitments, the aggregate outstanding principal amount of the Revolving Credit Loans of such Lender.
S&P means S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.
Sanctions means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes, anti-terrorism laws and other sanctions laws, regulations or embargoes imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) the governmental institutions and agencies of the United Kingdom, including those administered by Her Majesty’s Treasury or (e) any other Governmental Authority in any jurisdiction (i) in which the Parent Borrower, any of its Subsidiaries or any officer, director or agent acting on behalf of any Loan Party or any of its Subsidiaries is located or conducts business, (ii) in which any of the proceeds of Loans or Letters of Credit will be used, or (iii) from which repayment of the Obligations will be derived.
Sanctions List means each list maintained or public designation made by any Governmental Authority with the power to impose, administer or enforce Sanctions in respect of the targets or scope of the Sanctions that are administered and enforced by that Governmental Authority including, without limitation:
(a)    the “Specially Designated Nationals List” and the “Consolidated Non-SDN List” each administered and enforced by OFAC; and
(b)    “Financial Sanctions: Consolidated List of Targets” and “Ukraine” list of persons subject to restrictive measures in view of Russia’s actions destabilising the situation in Ukraine” each administered and enforced by Her Majesty’s Treasury.
SEC means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Parties means, collectively, the Administrative Agent, the Lenders, the Bank Product Providers, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.




Security Agreement has the meaning specified in Section 4.01(c)(iv).
Security Agreement Supplement has the meaning specified in Section 27(b) of the Security Agreement.
Securities Account means a “securities account” as such term is defined in Article 8 of the UCC.
Senior Notes means the 4.500% senior notes of the Parent Borrower due 2029 in an aggregate original principal amount of $500,000,000.
Senior Notes Documents means the Senior Notes Indenture, the Senior Notes and all other agreements, instruments and other documents pursuant to which the Senior Notes have been issued or otherwise setting forth the terms of the Senior Notes, in each case as such agreement, instrument or other document may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, but to the extent permitted under the terms of the Loan Documents.
Senior Notes Indenture means the indenture dated as of March 3, 2021, among the Parent Borrower, certain Subsidiaries of the Parent Borrower party thereto, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee, as such Indenture may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, but to the extent permitted under the terms of the Loan Documents.
Settlement has the meaning specified in Section 2.02(g)(i).
Settlement Date has the meaning specified in Section 2.02(g)(i).
SOFR” means, for any Business Day, a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
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.
SOFR Loan” means a Loan that bears interest based on Adjusted Term SOFR other than pursuant to clause (c) of the definition of Base Rate.
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 and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities, including contingent liabilities, of such Person and its Subsidiaries, on a consolidated basis, (b) the present fair salable value of the assets of such Person and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of such Person and its Subsidiaries, on a consolidated basis, on their debts as they become absolute and matured, (c) such Person and its Subsidiaries, on a consolidated basis, do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature and (d) such Person and its Subsidiaries, on a consolidated basis, are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which their total assets would constitute an unreasonably small capital. 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; provided, that if the context in which “Solvent” or “Solvency” is used refers to a Person together with its Subsidiaries, Person as used above shall be deemed to be a reference to such Person together with its Subsidiaries.
SPC has the meaning specified in Section 10.06(h).
SPC Register has the meaning specified in Section 10.06(h).
Specified Acquisition Agreement Representations” means the representations and warranties regarding the Target and its Subsidiaries in the Fox Acquisition Agreement that are material to the interests of the Lenders (in their respective capacities as such), but only to the extent that the Parent Borrower (or any of its Affiliates) has the right to terminate its (or their) obligations under the Fox Acquisition Agreement or decline to consummate the Fox Acquisition as a result of a failure of such representations and warranties to be true and correct.
Specified Event of Default means any Event of Default under Section 8.01(a), 8.01(b) (solely as a result of a failure to timely deliver a Borrowing Base Certificate or to comply with Section 7.10 or 7.15), 8.01(d) (solely as a result of a breach of representations or warranties with respect to any Borrowing Base Certificate), 8.01(f) or 8.01(g).
Specified Representations” means those representations and warranties made by the Borrowers in Sections 5.01(a) (only with respect to the valid existence of the Loan Parties), 5.01(b)(ii), 5.02(a) (only with respect to execution, delivery and performance of the Loan Documents), 5.02(c) (only with respect to the execution, delivery, and performance of the Loan Documents), 5.03, 5.04, 5.14, 5.16(a)(i), 5.16(a)(ii) (only with respect to the use of proceeds of the Loans made on the Closing Date), 5.16(b) (only with respect to the use of proceeds of the Loans made on the Closing Date), 5.18, and 5.20 (subject to the proviso at the end of Section 4.01(a)).
Specified Statutory Liens means any Liens permitted under Section 7.01(c) or (d) with respect to any Collateral that, strictly by the operation of applicable statute or law, would have priority over any Liens granted to or in favor of the Administrative Agent under any Collateral Document.
Spin-Off” means the “Planned Separation” (as defined in the Parent Borrower’s Form 10-K filing for the fiscal year ended March 31, 2022) with respect to the separation of the Parent Borrower’s outdoor products and sporting products segments or any analogous transaction with respect to any line of business, business segment or division (or any part thereof) of the Parent Borrower.
Spot Rate for any Alternative Currency means the rate determined by the Administrative Agent or an L/C Issuer as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such Alternative Currency with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date 2 Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or an L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or such L/C Issuer or third party published rate if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
Sterling or “£” means lawful money of the United Kingdom of Great Britain and Northern Ireland.




Subject Disposition means any Disposition of property or assets other than any Disposition permitted by Section 7.05(a)(i), (b), (d), (f), (g), or (h).
Subsidiary means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other business entity the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company or other business entity (a) of which Equity Interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, directly or indirectly, including through one or more Subsidiaries of such Person, in each case in clauses (a) and (b) above, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
Supermajority Lenders means, at any time, Lenders having or holding more than 67% of the aggregate Revolving Credit Loan Exposure of all Lenders; provided that (a) the Revolving Credit Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders and (b) at any time there are two or more Lenders (who are not Affiliates of one another), “Supermajority Lenders” must include at least two Lenders (who are not Affiliates of one another).
Swap Contract 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 Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
Swap Obligations means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts 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 Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
Swing Lender means Capital One, in its capacity as the provider of Swing Loans, or any successor in such capacity.




Swing Loan has the meaning specified in Section 2.02(a)(ii).
Swingline Request” has the meaning specified in Section 2.02(a)(ii)(A).
Synthetic Lease means, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capitalized Lease in respect of which such Person is the lessee and retains or obtains ownership of the property so leased for Federal income tax purposes or (b) any so-called synthetic, off-balance sheet or tax retention lease or any other lease or similar arrangement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person or otherwise upon application of any Debtor Relief Law to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
Synthetic Lease Obligation means the monetary obligation of a Person under a Synthetic Lease.
Target” has the meaning assigned to such term in the recitals to this Agreement.
Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the Term Facility, and any successor thereto.
Term Credit Agreement” has the meaning assigned to such term in the definition of “Term Facility”.
Term Facility” means the term loan facility in the initial principal amount of $350,000,000 pursuant to that certain Term Loan Credit Agreement, dated as of the Closing Date (as amended, amended and restated, supplemented or modified from time to time, the “Term Credit Agreement”), by and among the Borrowers, the lenders party thereto, and the Term Agent.
Term Loan Documents” means the “Loan Documents”
as such term is defined in the Term Credit Agreement and all other documents, agreements and instruments executed and delivered in connection therewith, and any Permitted Refinancing thereof and all similar documents, agreements and instruments executed and delivered in connection therewith, and any Permitted Refinancing thereof.
Term SOFR” means,
(a)    for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first




preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b)    for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day.
Term SOFR Adjustment” means, for any calculation of the applicable interest rate for a Base Rate Loan determined by reference to SOFR or a SOFR Loan, a percentage per annum equal to 10.00 basis points.
Term SOFR Administrator” means the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
Term SOFR Reference Rate” means the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.
Test Period means, on any date of determination, the period of four consecutive fiscal quarters of the Parent Borrower then most recently ended for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b) (or, prior to the first such delivery, Section 5.05(b)), taken as one accounting period.
Threshold Amount means $50,000,000.
Transaction Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable or otherwise borne by the Parent Borrower and/or its Subsidiaries in connection with the Transactions and the transactions contemplated thereby.
Transactions means, collectively, (a) the entering into by the Loan Parties of the Loan Documents on the Closing Date, (b) the creation of Liens pursuant to the Loan Documents on the Closing Date and the initial borrowings hereunder, if any, to occur on the Closing Date, (c) the refinancing of all outstanding Indebtedness under the Existing Credit Agreement, (d) the borrowing of the Term Facility and the entry into of the Term Credit Agreement and the other Term Loan Documents, (e) the Fox Acquisition and (f) the payment of the Transaction Costs.
Treasury Regulations means the Treasury Regulations promulgated under the Code.
Type means, with respect to a Revolving Credit Loan, its character as a Base Rate Loan or a SOFR Loan.




UCC means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.
UCP means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any version or revision thereof.
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, that 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 and “U.S. mean the United States of America.
Unused Line Fee has the meaning specified in Section 2.09(a)(ii).
U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
U.S. Person means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate has the meaning assigned to such term in Section 10.14(a)(ii)(B)(3).
Value means, with respect to Inventory, the lower of (a) the cost thereof and (b) the market value thereof, in each case based upon the Loan Parties’ historical accounting practices, which are in effect on the Closing Date, with such changes as then permitted by GAAP.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Yen or “¥” means lawful money of Japan.




Section 1.02Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)The meanings of defined terms are, unless the context otherwise requires, equally applicable to the singular and plural forms of the defined terms.
(b)(i)    The words “herein”, “hereto”, “hereof”, and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(i)Article, Section, Exhibit and Schedule references are to the Articles, Sections, Exhibits and Schedules of the Loan Document in which such reference appears.
(ii)The terms “include”, “includes”, or “including” shall be deemed to be followed with the phrase “without limitation”.
(iii)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.
(c)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”, “ending on”, and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(d)Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)Any reference herein to any Person shall be construed to include such Person’s successors and assigns.
Section 1.03Accounting 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, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenants) contained herein, Indebtedness of the Borrowers and the Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.
(b)If at any time any change in GAAP would affect the computation of any financial ratio or requirement, including a negative covenant “basket”, set forth in any Loan Document, and either the Parent Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; 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 Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under




this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of Financial Accounting Standards Board ASU No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capitalized Lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015.
Section 1.04Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.05References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual 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) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
Section 1.06Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “SOFR” or with respect to any comparable or successor rate thereto.
Section 1.07Letter of Credit Amounts. Unless otherwise specified, all references herein to the Dollar equivalent amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the Dollar equivalent amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Section 1.08Currency Equivalents Generally. Any amount specified in this Agreement (other than in Articles II, IX and X) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount, except as otherwise provided herein, to be determined by the Administrative Agent at the Spot Rate.
Section 1.09Parent Borrower as Borrower Representative. Each Borrower hereby designates the Parent Borrower as its representative and agent for all purposes under the Loan Documents, including requests for Revolving Credit Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of Borrowing Base Certificates and financial reports, requests for and entrance into waivers, amendments or other accommodations, actions under the Loan Documents (including in respect




of compliance with covenants), and all other dealings with the Administrative Agent, the L/C Issuers or any Lender. The Parent Borrower hereby accepts such appointment. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by the Parent Borrower on behalf of any other Borrower. The Administrative Agent, the L/C Issuers and the Lenders may give any notice or communication with a Borrower hereunder to the Parent Borrower on behalf of such Borrower. The Administrative Agent, each L/C Issuer and each Lender shall have the right, in its discretion, to deal exclusively with the Parent Borrower for any or all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by the Parent Borrower shall be binding upon and enforceable against it. Anything contained herein to the contrary notwithstanding, no Borrower (other than the Parent Borrower) shall be authorized to request any Loan or Letter of Credit hereunder without the Parent Borrower’s delivery of prior written notice thereof to the Administrative Agent.
Section 1.10Interest Rates; Outstanding Loan prior to the Closing Date.
(a)Interest Rates Generally. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “SOFR” or with respect to any comparable or successor rate thereto including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 3.03, will be similar to, or produce the same value or economic equivalence of, the SOFR or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.  
(b)Interest on Loans Outstanding prior to the Closing Date. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, interest on all Loans outstanding prior to the Closing Date shall accrue and be paid in accordance with the terms of the Existing Credit Agreement prior to the Closing Date until immediately prior to the Closing Date. Upon the Closing Date, each such Loan shall be automatically converted to a SOFR Loan with an Interest Period equal to the interest period for such Loan as in effect immediately prior to the Closing Date.
Section 1.1Pro Forma Adjustments for Acquisitions and Dispositions. To the extent any Borrower or any Subsidiary makes any acquisition permitted pursuant to Section 7.03 or Disposition outside the ordinary course of business permitted by Section 7.05 during the period of four fiscal quarters of the Borrowers most recently ended, the Consolidated Leverage Ratio shall be calculated after giving pro forma effect thereto (including pro forma adjustments arising out of events which are directly attributable to the acquisition or the Disposition, are factually supportable and are expected to have a continuing impact, in each case as determined on a basis consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as amended, as interpreted by the SEC, and as certified by a financial officer of such Borrower), as if such acquisition or such Disposition (and any related incurrence, repayment or assumption of Indebtedness) had occurred in the first day of such four-quarter period.
Section 1.2Status of Obligations. In the event that any Borrower or any other Loan Party shall at any time issue or have outstanding any subordinated Indebtedness, such Borrower shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Obligations to constitute senior indebtedness (however denominated) in respect of such subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such subordinated Indebtedness. Without limiting the foregoing, the Obligations are hereby designated as “senior indebtedness” and as “designated




senior indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under which such subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such subordinated Indebtedness.  
ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS
Section 1.01The Revolving Credit Loans.
(a)Subject to the terms and conditions of this Agreement, each Lender agrees (severally, not jointly or jointly and severally) to make revolving credit loans in Dollars (each a “Revolving Credit Loan”) to any Borrower during the term of this Agreement in an aggregate amount at any one time outstanding not to exceed the lesser of:
(i)such Lender’s Commitment, or
(ii)such Lender’s Pro Rata Share of an amount equal to (A) the Line Cap, less (B) the sum of (1) the Letter of Credit Usage at such time, plus (2) the principal amount of Swing Loans outstanding at such time.
(b)[Reserved].
(c)Amounts borrowed pursuant to this Section 2.01 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement. The outstanding principal amount of the Revolving Credit Loans, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which they otherwise become due and payable pursuant to the terms of this Agreement. Revolving Credit Loans may be Base Rate Loans or SOFR Loans, as further provided herein.
Section 1.02Borrowings, Conversions and Continuations of Revolving Credit Loans.
(d)Borrowings Generally.
(iii)Each Borrowing of a Revolving Credit Loan shall be made upon the Parent Borrower’s irrevocable (subject to Section 3.03) written notice delivered to the Administrative Agent substantially in the form of a Notice of Borrowing or in a writing in any other form acceptable to the Administrative Agent, which notice must be received by the Administrative Agent prior to 2:00 p.m. (i) on the date which is three (3) Business Days prior to the requested Borrowing date in the case of each SOFR Loan and (ii) on the date which is one (1) Business Day prior to the requested Borrowing date of each Base Rate Loan. Such Notice of Borrowing shall specify:
(A)the amount of the Borrowing (which shall be in an aggregate minimum principal amount of $100,000);
(B)the requested Borrowing date, which shall be a Business Day;




(C)if the Borrowing is to be SOFR Loans, the Interest Period applicable to such Loans.
Upon receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Revolving Lender of such Notice of Borrowing and of the amount of such Lender’s Pro Rata Share of the Borrowing.
Unless the Administrative Agent is otherwise directed in writing by the Parent Borrower, the proceeds of each requested Borrowing after the Closing Date will be made available to the Borrowers by the Administrative Agent by wire transfer of such amount to the Borrowers pursuant to the applicable Notice of Borrowing.
(i)Making of Swing Loans. So long as the aggregate amount of Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to Swing Loans since the last Settlement Date, plus the amount of any requested Swing Loan does not exceed $100,000,000, the Swing Lender shall make a Revolving Credit Loan (any such Revolving Credit Loan made by the Swing Lender pursuant to this Section 2.02(a)(ii) being referred to as a “Swing Loan”) available to any Borrower on the funding date applicable thereto by transferring immediately available funds in the amount of such Borrowing to the Designated Account or such other Deposit Account or Securities Account of the applicable Borrower identified by the Parent Borrower. Each Swing Loan shall be deemed to be a Revolving Credit Loan hereunder and shall be subject to all the terms and conditions (including Article IV) applicable to other Revolving Credit Loans, except that all payments (including interest) on any Swing Loan shall be payable to the Swing Lender solely for its own account. Subject to the provisions of Section 2.02(f), the Swing Lender shall not make and shall not be obligated to make any Swing Loan if the Swing Lender has actual knowledge that (A) one or more of the applicable conditions precedent set forth in Article IV will not be satisfied on the requested date of such Borrowing, or (B) after giving effect to the requested Borrowing, the Revolver Usage would exceed the Excess Availability on such date. Other than as set forth in the immediately preceding sentence, the Swing Lender shall not be required to determine whether the applicable conditions precedent set forth in Article IV have been satisfied on the applicable funding date prior to making any Swing Loan. The Swing Loans shall bear interest at the rate applicable from time to time to Revolving Credit Loans that are Base Rate Loans.
(D)Swing Loan Borrowing Procedures. In order to request a Swing Loan, the Parent Borrower shall give to the Administrative Agent a notice to be received not later than 2:00 p.m. on the day of the proposed Borrowing, which shall be made in a writing or in an Electronic Transmission substantially in the form of Exhibit 2.02(a) or in a writing in any other form acceptable to the Administrative Agent duly completed (a “Swingline Request”). In addition, if any Notice of Borrowing requests a Borrowing of Base Rate Loans, the Swing Lender may, notwithstanding anything else to the contrary herein, make a Swing Loan to the Borrowers in an aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing Loan. The Administrative Agent shall promptly notify the Swing Lender of the details of the requested Swing Loan. Upon receipt of such notice and subject to the terms of this Agreement, the Swing Lender may make a Swing Loan available to the Borrowers by making the proceeds thereof available to the Administrative Agent and, in turn, the Administrative Agent shall make such proceeds available to the Borrowers on the date set forth in the relevant Swingline Request or Notice of Borrowing.




(E)Refinancing Swing Loans. The Swing Lender may at any time (and shall no less frequently than once each week) forward a demand to the Administrative Agent (which the Administrative Agent shall, upon receipt, forward to each Revolving Lender) that each Lender pay to the Administrative Agent, for the account of the Swing Lender, such Lender’s Pro Rata Share of the outstanding Swing Loans (as such amount may be increased pursuant to Section 2.17(a)). Each Lender shall pay the amount owing by it to the Administrative Agent for the account of the Swing Lender on the Business Day following receipt of the notice or demand therefor. Payments received by the Administrative Agent after 1:00 p.m. may, in the Administrative Agent’s discretion, be deemed to be received on the next Business Day. Upon receipt by the Administrative Agent of such payment (other than during the continuation of any Event of Default under Section 8.01(f) or 8.01(g)), such Lender shall be deemed to have made a Revolving Credit Loan to the Borrowers, which, upon receipt of such payment by the Swing Lender from the Administrative Agent, the Borrowers shall be deemed to have used in whole to refinance such Swing Loan. In addition, regardless of whether any such demand is made, upon the occurrence of any Event of Default under 8.01(f) or 8.01(g), each Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in each Swing Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan. If any payment made by any Revolving Lender as a result of any such demand is not deemed a Revolving Credit Loan, such payment shall be deemed a funding by such Lender of such participation. Such participation shall not be otherwise required to be funded. Upon receipt by the Swing Lender of any payment from any Lender pursuant to this clause (ii) with respect to any portion of any Swing Loan, the Swing Lender shall promptly pay over to such Lender all payments of principal (to the extent received after such payment by such Lender) and interest (to the extent accrued with respect to periods after such payment) on account of such Swing Loan received by the Swing Lender with respect to such portion.
(a)In the event of a Notice of Borrowing for a SOFR Loan or a Base Rate Loan (unless in the case of a Base Rate Loan the Swing Lender has determined to make a Swing Loan in lieu of such Base Rate Loan), then following receipt of such a Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(c). Each Lender shall make the amount of its Revolving Credit Loan available to the Administrative Agent in immediately available funds to the Administrative Agent’s Account not later than (x) 10:00 a.m., in the case of SOFR Loans, and (y) 11:00 a.m., in the case of Base Rate Loans, on the Business Day specified in the applicable Notice of Borrowing. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the Initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds to the Designated Account or to such other Deposit Account or Securities Account of the applicable Borrower identified by the Parent Borrower.
(b)Conversion and Continuation Election.
(i)The Borrowers shall have the option to (i) request that any Revolving Credit Loan be made as a SOFR Loan, (ii) convert at any time all or any part of outstanding Loans (other than Swing Loans) from Base Rate Loans to SOFR Loans, (iii) convert any SOFR Loan to a Base Rate Loan, subject to Section 3.05 if such




conversion is made prior to the expiration of the Interest Period applicable thereto, or (iv) continue all or any portion of any Loan as a SOFR Loan upon the expiration of the applicable Interest Period. Any such election must be made by the Parent Borrower by 2:00 p.m. on the third Business Day prior to (1) the date of any proposed SOFR Loan, (2) the end of each Interest Period with respect to any SOFR Loans to be continued as such, or (3) the date on which the Borrowers wish to convert any Base Rate Loan to a SOFR Loan for an Interest Period designated by the Parent Borrower in such election. If no election is received with respect to a SOFR Loan by 2:00 p.m. on the third Business Day prior to the end of the Interest Period with respect thereto, that SOFR Loan shall be continued as a SOFR Loan bearing interest at a rate based upon Term SOFR for an Interest Period of one month. The Parent Borrower must make such election by notice to the Administrative Agent in writing, including by Electronic Transmission. In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “Notice of Conversion/Continuation”) substantially in the form of Exhibit 2.02(c) or in a writing in any other form acceptable to the Administrative Agent. No Loan shall be made, converted into or continued as a SOFR Loan, if (x) an Event of Default has occurred and is continuing and the Administrative Agent or Required Lenders have determined not to make or continue any Loan as a SOFR Loan as a result thereof or (y) the Administrative Agent is or Required Lenders are stayed by the Bankruptcy Code from making such determination.
(ii)Upon receipt of a Notice of Conversion/Continuation, the Administrative Agent will promptly notify each Lender thereof. In addition, the Administrative Agent will, with reasonable promptness, notify the Parent Borrower and the Lenders of each determination of the Term SOFR for the Interest Period applicable thereto; provided that any failure to do so shall not relieve any Borrower of any liability hereunder or provide the basis for any claim against the Administrative Agent. All conversions and continuations shall be made pro rata according to the respective outstanding principal amounts of the Loans held by each Lender with respect to which the notice was given.
(a)The Administrative Agent shall promptly notify the applicable Borrower and the Lenders of the interest rate applicable to any Interest Period for SOFR Loans upon determination of such interest rate. The determination of the Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the applicable Borrower and the Lenders of any change in Capital One’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(b)After giving effect to all Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than 10 Interest Periods in effect unless the Administrative Agent otherwise agrees.
(c)Protective Advances and Optional Overadvances.
(iii)Any contrary provision of this Agreement or any other Loan Document notwithstanding (but subject to Section 2.02(f)(iv)), at any time (A) after the occurrence and during the continuance of a Default or an Event of Default or (B) that any of the other applicable conditions precedent set forth in Section 4.02 are not satisfied, the Administrative Agent is hereby authorized by the Borrowers and the Lenders, from time to time to make Revolving Credit Loans to, or for the benefit of, any Borrower on behalf of the Lenders, in each case that the Administrative Agent in its Permitted Discretion deems necessary or desirable (1) to preserve or protect the Collateral, or any portion




thereof, (2) to enhance the likelihood of repayment of the Obligations (other than the Bank Product Obligations) or (3) to pay any other amount chargeable to any Borrower pursuant to the terms of this Agreement and other sums payable under the Loan Documents (the Revolving Credit Loans described in this Section 2.02(f)(i) shall be referred to as “Protective Advances”). The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders delivering written notice of such revocation to the Administrative Agent. Any such revocation shall become effective prospectively upon the Administrative Agent’s receipt thereof.
(iv)Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize the Administrative Agent or the Swing Lender, as applicable, and either the Administrative Agent or the Swing Lender, as applicable, may, but is not obligated to, intentionally continue to make Revolving Credit Loans (including Swing Loans) to any Borrower notwithstanding that an Overadvance exists or would be created thereby, subject to Section 2.02(f)(iv). In the event the Administrative Agent obtains actual knowledge that the Revolver Usage exceeds the amounts permitted by this Section 2.02(f), regardless of the amount of, or reason for, such excess, the Administrative Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless the Administrative Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case the Administrative Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders with Commitments thereupon shall, together with the Administrative Agent, jointly determine the terms of arrangements that shall be implemented with the Borrowers intended to eliminate such Overadvances within a reasonable time. In such circumstances, if any Lender with a Commitment objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. In any event any Overadvance pursuant to this Section 2.02(f)(ii) remains outstanding for more than 60 days, unless otherwise agreed to by the Required Lenders, the Borrowers shall promptly repay Revolving Credit Loans in an amount sufficient to eliminate all such Overadvances. The foregoing provisions are meant for the benefit of the Lenders and the Administrative Agent and are not meant for the benefit of the Borrowers, which shall continue to be bound by the provisions of Section 2.05(b). The Administrative Agent’s and the Swing Lender’s authorization to make intentional Overadvances may be revoked at any time by the Required Lenders delivering written notice of such revocation to the Administrative Agent. Any such revocation shall become effective prospectively upon the Administrative Agent’s receipt thereof. Extraordinary Advances may not be converted or continued.
(v)Each Extraordinary Advance shall be deemed to be a Revolving Credit Loan hereunder, except that no Extraordinary Advance shall be eligible to be a SOFR Loan. Prior to Settlement of any Extraordinary Advance, all payments with respect thereto, including interest thereon, shall be payable to the Administrative Agent solely for its own account. Each Lender shall be obligated to settle with the Administrative Agent as provided in Section 2.02(g) for the amount of such Lender’s Pro Rata Share of any Extraordinary Advance. The Extraordinary Advances shall be repayable on demand, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Revolving Credit Loans that are Base Rate Loans.
(vi)Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, (A) the aggregate amount of all Protective Advances and Overadvances (each, an “Extraordinary Advance”) outstanding at any one




time shall not exceed 10% of the Borrowing Base and (B) no Extraordinary Advance may be made by the Administrative Agent if such Extraordinary Advance would cause (1) the aggregate Revolver Usage to exceed the Aggregate Commitments or (2) any Lender’s Pro Rata Share of the Revolver Usage to exceed such Lender’s Commitments.
(c)Settlement. It is agreed that each Lender’s funded portion of the Revolving Credit Loans is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Revolving Credit Loans. Such agreement notwithstanding, the Administrative Agent, the Swing Lender and the other Lenders agree (which agreement shall not be for the benefit of the Borrowers) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) shall take place on a periodic basis in accordance with the following provisions:
(vii)The Administrative Agent shall request settlement (Settlement”) with the Lenders on a weekly basis, or on a more frequent basis if so determined by the Administrative Agent in its sole discretion (A) on behalf of the Swing Lender, with respect to the outstanding Swing Loans, (B) for itself, with respect to the outstanding Extraordinary Advances and (C) with respect to any Loan Party’s or any of their respective Subsidiaries’ payments or other amounts received, in each case by notifying the Lenders by facsimile, telephone or other similar form of transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day immediately prior to the date of such requested Settlement (the “Settlement Date”). Such notice of a Settlement Date shall include a summary statement of the amount of outstanding Revolving Credit Loans (including Swing Loans and Extraordinary Advances) for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including Section 2.17): (A) if the amount of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, then the Administrative Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to the account as such Lender may designate, an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances), and (B) if the amount of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) made by a Lender is less than such Lender’s Pro Rata Share of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to the Administrative Agent’s Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances). Such amounts made available to the Administrative Agent under clause (B) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Extraordinary Advances and, together with the portion of such Swing Loans or Extraordinary Advances representing Swing Lender’s Pro Rata Share thereof, shall constitute Revolving Credit Loans of such Lenders. If any such amount is not made available to the Administrative Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, the Administrative Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate.
(viii)In determining whether a Lender’s balance of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) is less than, equal to, or




greater than such Lender’s Pro Rata Share of the Revolving Credit Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, the Administrative Agent shall, as part of the relevant Settlement and subject to Section 8.03, apply to such balance the portion of payments actually received in immediately available funds by the Administrative Agent with respect to principal, interest and fees payable by the Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral.
(ix)To the extent Extraordinary Advances or Swing Loans are outstanding between Settlement Dates, the Administrative Agent may pay over to the Administrative Agent or the Swing Lender, as applicable, any payments or other amounts received by the Administrative Agent that in accordance with the terms of this Agreement would be applied to the reduction of the outstanding Revolving Credit Loans, for application to such Extraordinary Advances or Swing Loans. Between Settlement Dates, the Administrative Agent, to the extent no Extraordinary Advances or Swing Loans are outstanding, may pay over to the Swing Lender any payments or other amounts received by the Administrative Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Credit Loans, for application to the Swing Lender’s Pro Rata Share of the Revolving Credit Loans. If, as of any Settlement Date, payments or other amounts of the Loan Parties or their respective Subsidiaries received since the immediately preceding Settlement Date have been applied to the Swing Lender’s Pro Rata Share of the Revolving Credit Loans other than to Swing Loans, as provided for in the immediately preceding sentence, the Swing Lender shall pay to the Administrative Agent for the accounts of the Lenders, and the Administrative Agent shall pay to the Lenders (subject to clause (iv) below), to be applied to the outstanding Revolving Credit Loans of such Lenders, an amount such that each such Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Credit Loans. Solely as among the Administrative Agent, the Swing Lender and the other Lenders, during the period between Settlement Dates, the Swing Lender with respect to the outstanding daily amount of principal of Swing Loans, the Administrative Agent with respect to the outstanding daily amount of principal of Extraordinary Advances, and each Lender with respect to the outstanding daily amount of principal of Revolving Credit Loans other than Swing Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, during the period between Settlement Dates, none of the Swing Lender with respect to Swing Loans, the Administrative Agent with respect to Extraordinary Advances, or any Lender with respect to the Revolving Credit Loans other than Swing Loans and Extraordinary Advances, shall be entitled to interest from any Loan Party or any of their Subsidiaries on the amount of principal repaid after the date of repayment of such principal.
(x)Anything in this Section 2.02(g) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to implement the provisions set forth in Section 2.17.
Section 1.03Letters of Credit.
(e)Subject to the terms and conditions of this Agreement, upon the request of the Parent Borrower made in accordance herewith, and prior to the Maturity Date, each L/C Issuer agrees to issue Letters of Credit for the account of the Parent Borrower or any other Borrower. By submitting a request to an L/C Issuer for the issuance of a Letter of Credit, the Parent Borrower shall be deemed to have requested that the applicable L/C Issuer issue such Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal




or extension of any outstanding Letter of Credit, shall be (i) irrevocable and made in writing by a Responsible Officer of the Parent Borrower in the form of Exhibit 2.03 or in any other written form acceptable to such L/C Issuer, (ii) delivered to the Administrative Agent and such L/C Issuer via facsimile or other electronic method of transmission reasonably acceptable to the Administrative Agent and such L/C Issuer and no later than 2:00 p.m. on the third Business Day (or such shorter period that may be agreed by the applicable L/C Issuer and the Parent Borrower) prior to the requested date of issuance, amendment, renewal, or extension, and (iii) subject to the applicable L/C Issuer’s authentication procedures with results reasonably satisfactory to L/C Issuer. Each such request shall be in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer and (i) shall specify (A) the amount and currency of such Letter of Credit, which shall be in Dollars or an Alternative Currency, (B) the date of issuance, amendment, renewal or extension of such Letter of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the beneficiary of the Letter of Credit and (E) such other information (including the conditions to drawing, and, in the case of an amendment, renewal, or extension, identification of the Letter of Credit to be so amended, renewed or extended) as shall be necessary to prepare, amend, renew or extend such Letter of Credit and (ii) shall be accompanied by such Issuer Documents as the Administrative Agent and the applicable L/C Issuer may reasonably request or require, to the extent that such requests or requirements are consistent with the Issuer Documents that such L/C Issuer generally requests for Letters of Credit in similar circumstances. Anything contained herein to the contrary notwithstanding, an L/C Issuer may, but shall not be obligated to, issue a Letter of Credit that supports the obligations of a Loan Party or one of its Subsidiaries in respect of (x) a lease of real property to the extent that the face amount of such Letter of Credit exceeds the highest rent (including all rent-like charges) payable under such lease for a period of one year, or (y) an employment contract to the extent that the face amount of such Letter of Credit exceeds the highest compensation payable under such contract for a period of one year, in each case to the extent that such L/C Issuer maintains such a policy with respect to such Letters of Credit.
(f)No L/C Issuer shall have any obligation to issue a Letter of Credit if any of the following would result after giving effect to the requested issuance:
(i)the Letter of Credit Usage would exceed the Letter of Credit Sublimit;
(ii)the Letter of Credit Usage attributable to Letters of Credit issued by any L/C Issuer would exceed the Individual Letter of Credit Sublimit for such L/C Issuer (unless otherwise agreed by such L/C Issuer); or
(iii)the Revolver Usage would exceed the Line Cap at such time.
(g)In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, no L/C Issuer shall be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lender’s Letter of Credit Exposure with respect to such Letter of Credit cannot be reallocated pursuant to Section 2.17 or (ii) such L/C Issuer has not otherwise entered into arrangements reasonably satisfactory to it and the Parent Borrower to eliminate such L/C Issuer’s risk with respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include the Parent Borrower Cash Collateralizing such Defaulting Lender’s Letter of Credit Exposure in accordance with Section 2.17. Additionally, no L/C Issuer shall have any obligation to issue or extend a Letter of Credit if (A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit or request that such L/C Issuer refrain from the issuance or extension of letters of credit generally or such




Letter of Credit in particular, (B) the issuance or extension of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally or (C) if amounts demanded to be paid under any Letter of Credit will not or may not be in Dollars or an Alternative Currency.
(h)Each L/C Issuer (other than the Administrative Agent (or any of its Affiliates) to the extent it is an L/C Issuer) shall notify the Administrative Agent in writing no later than the Business Day prior to the Business Day on which such L/C Issuer issues any Letter of Credit. In addition, each L/C Issuer (other than the Administrative Agent (or any of its Affiliates) to the extent it is an L/C Issuer) shall, on the first Business Day of each week, submit to the Administrative Agent a report in form and substance satisfactory to the Administrative Agent detailing the daily undrawn amount of each Letter of Credit issued by such L/C Issuer and related Letter of Credit Usage during the prior calendar week. Upon the request of the Administrative Agent (or any Lender through the Administrative Agent), the applicable L/C Issuer shall provide to the Administrative Agent copies of any Letter of Credit issued by such L/C Issuer and any related L/C Reimbursement Agreement and such other documents and information as may reasonably be requested by the Administrative Agent. The Parent Borrower and each Lender hereby acknowledge and agree that all Existing Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same effect as if such Existing Letters of Credit were issued by an L/C Issuer at the request of the Parent Borrower on the Closing Date (or on such later date, as applicable) . Each Letter of Credit shall be in form and substance reasonably acceptable to the applicable L/C Issuer. If any L/C Issuer makes a payment under a Letter of Credit, the applicable L/C Issuer shall notify the Parent Borrower (on behalf of itself and any applicable Borrower) and the Administrative Agent thereof immediately. Each L/C Issuer agrees to provide to the Administrative Agent, after any payment (or failure to pay when due) by any Borrower of any related drawn amounts under Letters of Credit, notice thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse the applicable L/C Issuer in the Dollar equivalent of such Alternative Currency (as converted at the Spot Rate as determined by the Administrative Agent, which calculation shall be deemed correct absent manifest error), unless such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in the applicable Alternative Currency. The applicable Borrower shall pay to the Administrative Agent an amount equal to the applicable Letter of Credit Disbursement on the same Business Day as such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be a Revolving Credit Loan hereunder (notwithstanding (x) any failure to satisfy any condition precedent set forth in Section 4.02 and (y) any requirement that a Revolving Credit Loan be made in a minimum amount or a multiple in excess thereof set forth in Section 2.02(a)(i)) and, initially, shall bear interest at the rate then applicable to Revolving Credit Loans that are Base Rate Loans. If such Letter of Credit Disbursement is made in an Alternative Currency, the amount of such Letter of Credit Disbursement shall be converted into Dollars at the Spot Rate (as determined by the Administrative Agent, which calculation shall be deemed correct absent manifest error) on such date for purposes of determining the amount of such Revolving Credit Loan. If a Letter of Credit Disbursement is deemed to be a Revolving Credit Loan hereunder, the applicable Borrower’s obligation to pay the amount of such Letter of Credit Disbursement to the applicable L/C Issuer shall be automatically converted into an obligation of the Borrowers to pay the resulting Revolving Credit Loan. Promptly following receipt by the Administrative Agent of any payment from any Borrower pursuant to this clause (d), the Administrative Agent shall distribute such payment to the applicable L/C Issuer or, to the extent that Lenders have made payments pursuant to Section 2.03(e) to reimburse the applicable L/C Issuer, then to such Lenders and the L/C Issuers as their interests may appear.
(i)Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to Section 2.03(d), each Lender agrees to fund its Pro Rata Share of any Revolving




Credit Loan deemed made pursuant to Section 2.03(d) on the same terms and conditions as if the Parent Borrower had requested the amount thereof as a Revolving Credit Loan and the Administrative Agent shall promptly pay to the applicable L/C Issuer the amounts so received by it from the Lenders. By the issuance of a Letter of Credit (or an amendment, renewal or extension of a Letter of Credit) and without any further action on the part of any L/C Issuer or the Lenders, the applicable L/C Issuer shall be deemed to have granted to each Lender, and each Lender shall be deemed to have purchased, a participation in each Letter of Credit issued by such L/C Issuer, in an amount equal to its Pro Rata Share of such Letter of Credit, and each such Lender agrees to pay to the Administrative Agent, for the account of the applicable L/C Issuer, such Lender’s Pro Rata Share of any Letter of Credit Disbursement made by such L/C Issuer under the applicable Letter of Credit (in the case of a Letter of Credit Disbursement made in an Alternative Currency, in the equivalent in Dollars calculated at the Spot Rate (as determined by the Administrative Agent, which calculation shall be deemed correct absent manifest error)). In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable L/C Issuer, such Lender’s Pro Rata Share of each Letter of Credit Disbursement made by such L/C Issuer and not reimbursed by the Borrowers on the date due as provided in Section 2.03(d), or of any reimbursement payment that is required to be refunded (or that the Administrative Agent or such L/C Issuer elects, based upon the advice of counsel, to refund) to the Borrowers for any reason. Each Lender acknowledges and agrees that its obligation to deliver to the Administrative Agent, for the account of an L/C Issuer, an amount equal to its respective Pro Rata Share of each Letter of Credit Disbursement pursuant to this Section 2.03(e) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Article IV. If any such Lender fails to make available to the Administrative Agent the amount of such Lender’s Pro Rata Share of a Letter of Credit Disbursement as provided in this Section, such Lender shall be deemed to be a Defaulting Lender and the Administrative Agent (for the account of L/C Issuer) shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate until paid in full.
(j)Each Borrower agrees to indemnify, defend and hold harmless the Administrative Agent and each Lender (including each L/C Issuer and its branches, Affiliates, and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including each L/C Issuer, a “Letter of Credit Related Person”) (to the fullest extent permitted by law) from and against any and all claims, damages, losses, liabilities, and related reasonable and documented and invoiced out-of-pocket expenses (including Attorney Costs of a single firm of counsel to the applicable L/C Issuer and one local counsel to the applicable L/C Issuer in each reasonably necessary jurisdiction, one specialty counsel in each reasonably necessary specialty area for all such Letter of Credit Related Persons, taken as a whole (and, in the case of an actual conflict of interest where the Letter of Credit Related Person retains its own counsel, of another firm of counsel for each such affected Letter of Credit Related Person)), that may be incurred by or asserted or awarded against any such Letter of Credit Related Person (as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be governed by Article III) (the “Letter of Credit Indemnified Costs”), and that arise out of or in connection with, or as a result of:
(ii)any Letter of Credit or any pre-advice of its issuance;
(iii)any transfer, sale, delivery, surrender or endorsement (or lack thereof) of any Drawing Document at any time(s) held by any such Letter of Credit Related Person in connection with any Letter of Credit;




(iv)any action or proceeding arising out of, or in connection with, any Letter of Credit (whether administrative, judicial or in connection with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit, or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(v)any independent undertakings issued by the beneficiary of any Letter of Credit;
(vi)any unauthorized instruction or request made to the applicable L/C Issuer in connection with any Letter of Credit or requested Letter of Credit, or any error, omission, interruption or delay in such instruction or request, whether transmitted by mail, courier, Electronic Transmission, SWIFT, or any other telecommunication including communications through a correspondent;
(vii)an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated;
(viii)any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of Letter of Credit proceeds or holder of an instrument or document;
(ix)the fraud, forgery or illegal action of parties other than Letter of Credit Related Persons;
(x)any prohibition on payment or delay in payment of any amount payable by the applicable L/C Issuer to a beneficiary or transferee beneficiary of a Letter of Credit arising out of Anti-Corruption and Anti-Money Laundering Laws or Sanctions;
(xi)the applicable L/C Issuer’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation;
(xii)any foreign language translation provided to the applicable L/C Issuer in connection with any Letter of Credit;
(xiii)any foreign law or usage as it relates to the applicable L/C Issuer’s issuance of a Letter of Credit in support of a foreign guaranty including without limitation the expiration of such guaranty after the related Letter of Credit expiration date and any resulting drawing paid by the applicable L/C Issuer in connection therewith; or
(xiv)the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or regulatory authority or cause or event beyond the control of the Letter of Credit Related Person;
provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification pursuant to this Section 2.03(f) to the extent that such Letter of Credit Indemnified Costs may be determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence, bad faith or willful misconduct of the Letter of Credit Related Person claiming indemnity. The Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity not later than 10 Business Days after demand therefor. If and to the extent that the obligations of the Borrowers under this Section 2.03(f) are unenforceable for any reason, the Borrowers agree to make the maximum contribution to the Letter of Credit Indemnified Costs payable in accordance with this Section




2.03(f) that is permissible under applicable law. This indemnification provision shall survive the termination of this Agreement and all Letters of Credit.
(k)The liability of each L/C Issuer (or any Letter of Credit Related Person) under, in connection with or arising out of any Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by the Parent Borrower and its Subsidiaries that are caused directly by such L/C Issuer’s gross negligence, bad faith or willful misconduct in (i) honoring a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit.
(l)The Parent Borrower (on behalf of itself and any applicable Borrower) will examine a copy of the Letter of Credit and any other documents sent by the applicable L/C Issuer in connection therewith and shall promptly notify such L/C Issuer (not later than 3 Business Days following the Parent Borrower’s receipt of documents from such L/C Issuer) of any non-compliance with the Parent Borrower’s instructions and of any discrepancy in any document under any presentment or other irregularity. The Borrowers are responsible for the final text of the Letter of Credit as issued by an L/C Issuer, irrespective of any assistance such L/C Issuer may provide such as drafting or recommending text or by such L/C Issuer’s use or refusal to use text submitted by the Parent Borrower. The Borrowers understand that the final form of any Letter of Credit may be subject to such revisions and changes to the Letter of Credit language consistent with any applicable L/C Issuer’s customary practices for letter of credit issuance as are deemed necessary or appropriate by such L/C Issuer, and Borrowers hereby consent to such revisions and changes that are not materially different from the final text of the Letter of Credit approved by the Borrowers. The Borrowers are solely responsible for the suitability of the Letter of Credit for the applicable Borrower’s purposes. If the Parent Borrower requests that any L/C Issuer issue a Letter of Credit for an Affiliate (including any Guarantor) or unaffiliated third party (each an “Account Party”), (i) such Account Party shall have no rights against the applicable L/C Issuer; (ii) the Parent Borrower shall be responsible for the application for such Letter of Credit and the Borrowers shall have the obligations of such Letter of Credit for such Account Party under this Agreement; and (iii) communications (including notices) related to the applicable Letter of Credit shall be between the applicable L/C Issuer and the Parent Borrower (and not between the L/C Issuer and the Account Party). The Borrowers understand and agree that, unless otherwise agreed by the Parent Borrower and the applicable L/C Issuer, no L/C Issuer shall be required to extend the expiration date of any Letter of Credit for any reason. With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of Credit, the applicable L/C Issuer, in its sole and absolute discretion, may give notice of nonrenewal of such Letter of Credit and, if the Parent Borrower does not at any time want the then current expiration date of such Letter of Credit to be extended, the Parent Borrower shall so notify the Administrative Agent and the applicable L/C Issuer at least 15 calendar days (or such shorter period agreed to by the applicable L/C Issuer) before the applicable L/C Issuer is required to notify the beneficiary of such Letter of Credit or any advising bank of such non-extension pursuant to the terms of such Letter of Credit.
(m)Each Borrower’s reimbursement and payment obligations under this Section 2.03 are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances, including:
(iv)any lack of validity, enforceability or legal effect of any Letter of Credit, any Issuer Document, this Agreement or any Loan Document, or any term or provision therein or herein;




(v)payment against presentation of any draft, demand or claim for payment under any Drawing Document that does not comply in whole or in part with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such Person purporting to be a successor or transferee of the beneficiary of such Letter of Credit;
(vi)any L/C Issuer or any of its branches or Affiliates being the beneficiary of any Letter of Credit;
(vii)any L/C Issuer or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Letter of Credit even if such Drawing Document claims an amount in excess of the amount available under the Letter of Credit;
(viii)the existence of any claim, set-off, defense or other right that any Loan Party or any of its Subsidiaries may have at any time against any beneficiary or transferee beneficiary, any assignee of proceeds, any L/C Issuer or any other Person;
(ix)any L/C Issuer or any correspondent honoring a drawing upon receipt of an electronic presentation under a Letter of Credit requiring the same, regardless of whether the original Drawing Documents arrive at such L/C Issuer’s counters or are different from the electronic presentation;
(x)any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section 2.03(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, any Loan Party or any of its Subsidiaries’ reimbursement and other payment obligations and liabilities, arising under, or in connection with, any Letter of Credit, whether against any L/C Issuer, the beneficiary or any other Person; or
(xi)the fact that any Default or Event of Default shall have occurred and be continuing;
provided that subject to Sections 2.03(f) and (g) above, the foregoing shall not release any L/C Issuer from such liability to the Loan Parties and their Subsidiaries as may be determined in a final, non-appealable judgment of a court of competent jurisdiction against such L/C Issuer following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of the applicable Borrower to such L/C Issuer arising under, or in connection with, this Section 2.03 or any Letter of Credit.
(n)The Borrowers shall pay to the Administrative Agent for the account of L/C Issuer as non-refundable fees, commissions, and charges (it being acknowledged and agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to the provisions of Section 2.12 shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.03(j)): (i) on the last Business Day of each March, June, September and December, a fronting fee which shall be imposed by L/C Issuer equal to 0.125% per annum times the average amount of the Letter of Credit Usage attributable to Letters of Credit issued by such L/C Issuer during the immediately preceding quarter, plus (ii) promptly upon demand, any and all other customary commissions, fees and charges then in effect imposed by, and any and all expenses incurred by, such L/C Issuer, or by any adviser, confirming institution or entity or other nominated person, relating to such Letters of Credit, at the time of issuance of any such Letter of Credit and upon the occurrence of any other activity with respect to any such Letter of Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations).




(o)Each Letter of Credit shall expire not later than the date that is 12 months after the date of the issuance of such Letter of Credit; provided that any standby Letter of Credit may provide for the automatic extension thereof for any number of additional periods each of up to one year in duration; provided further that with respect to any Letter of Credit which extends beyond the Maturity Date, it shall be Cash Collateralized on or before the Letter of Credit Expiration Date.
(p)If (i) any Event of Default shall occur and be continuing or (ii) an Overadvance has occurred, then on the Business Day following the date when the Parent Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Obligations has been accelerated, Lenders with Letter of Credit Exposure representing greater than 50% of the total Letter of Credit Exposure) demanding Cash Collateralization pursuant to this Section 2.03(1) upon such demand, the Borrowers shall provide Cash Collateral with respect to the then existing Letter of Credit Usage (in the case of the preceding clause (ii), in an amount sufficient to eliminate such Overadvance). If the Borrowers fail to provide Cash Collateral as required by this Section 2.03(1), the Lenders may (and, upon direction of the Administrative Agent, shall) advance, as Revolving Credit Loans the amount of the cash collateral required pursuant to the Cash Collateralize provision so that the then existing Letter of Credit Usage is cash collateralized in accordance with the Cash Collateralize provision (whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 4.02 are satisfied).
(q)Unless otherwise expressly agreed by the applicable L/C Issuer and the Parent Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.
(r)Each L/C Issuer shall be deemed to have acted with due diligence and reasonable care if such L/C Issuer’s conduct is in accordance with Letter of Credit Practice or in accordance with this Agreement.
(s)In the event of a direct conflict between the provisions of this Section 2.03 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.03 shall control and govern.
(t)If the Maturity Date in respect of any tranche of Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Commitments in respect of which the Maturity Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Lenders to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Section 2.03(e) or (k)) under (and ratably participated in by Lenders pursuant to) the Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), the Borrowers shall Cash Collateralize any such Letter of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the immediately preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Lenders in any Letter of Credit issued before such Maturity Date.




(u)The provisions of this Section 2.03 shall survive the termination of this Agreement and the Obligations being Paid in Full with respect to any Letters of Credit that remain outstanding.
(v)At the Borrowers’ cost and expense, the Borrowers shall execute and deliver to the applicable L/C Issuer such additional certificates, instruments or documents and take such additional actions as may be reasonably requested by such L/C Issuer to enable such L/C Issuer to issue any Letter of Credit pursuant to this Agreement and the related Issuer Document, to protect, exercise and/or enforce such L/C Issuer’s rights and interests under this Agreement or to give effect to the terms and provisions of this Agreement or any Issuer Document. At all times after the occurrence and during the continuance of an Event of Default, each Borrower irrevocably appoints each L/C Issuer as its attorney-in-fact and authorizes each such L/C Issuer, without notice to the Borrowers, to take any action and to execute and deliver ancillary documents and letters customary in the letter of credit business that may include but are not limited to advisements, indemnities, checks, bills of exchange and issuance documents. The power of attorney granted by the Borrowers pursuant to this Section 2.03(r) is limited solely to such actions related to the issuance, confirmation or amendment of any Letter of Credit and to ancillary documents or letters customary in the letter of credit business. This appointment is coupled with an interest.
(w)Any L/C Issuer may at any time give notice of its resignation to the Administrative Agent, the Lenders, the other L/C Issuers and the Parent Borrower; provided that, unless such resignation is in connection with a permitted assignment of such L/C Issuer’s rights and obligations under this Agreement or due to a regulatory issue, notice must be delivered no less than thirty (30) days in advance of such resignation and prior to the date of such resignation, the applicable L/C Issuer shall have identified another Lender reasonably acceptable to the Parent Borrower and the Administrative Agent that has agreed to act as a replacement L/C Issuer hereunder with respect to such resigning L/C Issuer’s Individual Letter of Credit Sublimit, and in connection therewith such resigning L/C Issuer (i) shall not be required to issue any further Letters of Credit and (ii) shall maintain all of its rights as L/C Issuer with respect to any Letters of Credit issued by it prior to the date of such resignation so long as such Letters of Credit or L/C Obligations remain outstanding and not otherwise Cash Collateralized in accordance with the terms herein.
(x)For each issuance of a Letter of Credit, the applicable L/C Issuer may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in Section 4.02 have been satisfied or waived in connection with the issuance of any Letter of Credit; provided, however, that no Letters of Credit shall be issued during the period starting on the first Business Day after the receipt by such L/C Issuer of notice from the Administrative Agent or the Required Lenders that any condition precedent contained in Section 4.02 is not satisfied and ending on the date all such conditions are satisfied or duly waived.
Section 1.01Notes. Any Lender may request that any portion of its Commitments or the Loans made by it be evidenced by one or more Notes. In such event, the Borrowers shall execute and deliver to such Lender the requested Notes payable to such Lender. Thereafter, the portion of the Commitments and Loans evidenced by such Notes and interest thereon shall at all times be represented by such Notes.
Section 1.02Prepayments.
(y)Optional. Each Borrower may, upon notice to the Administrative Agent, at any time or from time to time, voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 12:00 p.m. (A) 3 Business Days prior to any date of prepayment of SOFR Loans and (B) on




the date of prepayment of Base Rate Loans; (ii) any prepayment of SOFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans (other than Extraordinary Advances or prepayments made by the Borrowers with respect to estimated interest, fees and/or expenses due or to be due hereunder) shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if SOFR Loans are to be prepaid, the Interest Period(s) of the Revolving Credit Loans and otherwise be in a form reasonably acceptable to the Administrative Agent. The Administrative Agent will promptly notify each Lender of its receipt of each such notice (other than a notice related solely to Extraordinary Advances prior to the Settlement thereof), and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by a Borrower, such Borrower (or another Borrower on behalf of such Borrower) shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that a notice of prepayment pursuant to this Section 2.05(a) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked or modified by such Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Any prepayment of a SOFR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.17, each prepayment of the outstanding Revolving Credit Loans shall be applied to the Revolving Credit Loans of the Lenders in accordance with their respective Pro Rata Shares, as applicable.
(z)Mandatory.
(xii)If, at any time, the Revolver Usage on such date exceeds the Line Cap then in effect, then the Borrowers shall promptly, but in any event within 1 Business Day, prepay Obligations in an aggregate amount equal to the amount of such excess.
(xiii)If the Parent Borrower, or any other Loan Party, Disposes of any Collateral included in the determination of the Borrowing Base, other than pursuant to Sections 7.05(b), (d), (e), (f), (g) and (h) (or receives proceeds of any casualty insurance and condemnation awards with respect to such Collateral), the Parent Borrower shall prepay Loans equal to 100% of such Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Parent Borrower or such Loan Party; provided that in connection with any Disposition permitted by Section 7.05, neither the Parent Borrower nor such Loan Party shall be obligated to make a mandatory prepayment pursuant to this Section 2.05(b)(ii) so long as (i) the Payment Conditions are satisfied (calculated after delivery by the Parent Borrower to the Administrative Agent of a Borrowing Base Certificate calculating and certifying the Borrowing Base after giving pro forma effect to such Disposition), (ii) no Default or Event of Default has occurred and is continuing and (iii) the conditions to a Credit Extension set forth in Section 4.02(a) are then satisfied; provided, further that to the extent the Payment Conditions are not then satisfied, the amount of the prepayment required to be made under this Section 2.05(b)(ii) shall equal an amount such that the Payment Conditions would be satisfied on a pro forma basis after giving effect to such prepayment and to the other pro forma adjustments to the Borrowing Base in connection with such Disposition.
(xiv)During a Cash Dominion Period, the Borrowers shall prepay the Obligations as provided in Section 2.19.
(aa)Application of Prepayments.




(xv)All prepayments made pursuant to Sections 2.05(b)(i) and (ii), so long as no Application Event has occurred and is continuing, shall be applied, first, to prepay outstanding Extraordinary Advances, second, to prepay outstanding Swing Loans, third, to prepay Revolving Credit Loans, and fourth, to Cash Collateralize outstanding Letter of Credit Usage; provided that any prepayments made pursuant to Sections 2.05(b)(i) and (ii) and applied to Cash Collateralize outstanding Letter of Credit Usage shall be promptly released to the Parent Borrower upon Borrowers’ satisfaction of the Payment Conditions, so long as no Default or Event of Default then exists or is continuing; provided, further, that such cash collateral shall only be so released to the extent that, after giving pro forma effect to such release, the Payment Conditions would continue to be satisfied.
(xvi)To the extent permitted by the foregoing, in the case of each of clause (i) and (ii), amounts prepaid shall be applied first to any Base Rate Loans then outstanding and then to outstanding SOFR Loans with the shortest Interest Periods remaining. Together with each prepayment under this Section 2.05, the Borrowers shall pay any amounts required pursuant to Section 3.05 hereof.
Section 1.01Termination or Reduction of Commitments.
(d)Optional. The Parent Borrower may, upon notice to the Administrative Agent, terminate the unused portions of the Letter of Credit Sublimit or the unused Commitments, or from time to time permanently reduce the unused portions of the Letter of Credit Sublimit or the unused Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 p.m. 3 Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Parent Borrower shall not terminate or reduce the Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the sum of (A) the Revolver Usage plus (B) the principal amount of all Revolving Credit Loans not yet made as to which a request has been given by the Parent Borrower under Section 2.02, plus (C) the amount of all Letters of Credit not yet issued as to which a request has been given by the Parent Borrower pursuant to Section 2.03 would exceed the Line Cap, and (iv) to the extent practicable, each partial reduction in the Letter of Credit Sublimit shall be allocated ratably among the L/C Issuers in accordance with their respective Individual Letter of Credit Sublimits. Each notice delivered by the Parent Borrower pursuant to this Section 2.06(a) shall be irrevocable; provided that a notice of termination or reduction of the Commitments pursuant to this Section 2.06(a) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked or modified by the Parent Borrower (by notice to the Administrative Agent on or prior to the specified date of termination or reduction) if such condition is not satisfied.
(e)Mandatory. If after giving effect to any reduction or termination of unused Commitments under this Section 2.06, the Letter of Credit Sublimit exceeds the amount of the aggregate Commitments, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess.
(f)Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit or the unused Commitments under this Section 2.06. Upon any reduction of unused Commitments, the Commitment of each Lender shall be reduced by such Lender’s Pro Rata Share of the amount by which the Commitments are reduced. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.




Section 1.02Repayment of Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of itself and the Lenders on the Maturity Date the aggregate principal amount of all Revolving Credit Loans (including Swing Loans and Extraordinary Advances) outstanding on such date.
Section 1.03Interest.
(a)Subject to the provisions of Section 2.08(b), all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account after the due date for such Obligations shall bear interest as follows, (i) each SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted Term SOFR for such Interest Period plus the Applicable Rate, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate, or (iii) otherwise, each other Obligation under the Loan Documents (except for undrawn Letters of Credit) shall bear interest on the outstanding amount thereof from the date such Obligation is due at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)At any time when a Specified Event of Default shall have occurred and be continuing, upon the election of the Required Lenders or the Administrative Agent (or automatically while any Event of Default under Section 8.01(f) or 8.01(g) exists), the Borrowers shall pay interest on Obligations (other than Bank Product Obligations) hereunder at a rate per annum equal to (A) in the case of principal of any Revolving Credit Loan, 2.00% per annum plus the interest rate (at the Adjusted Term SOFR or Base Rate, as the case may be) and Applicable Rate otherwise applicable to such Revolving Credit Loan, (B) in the case of Letter of Credit Fees, 2.00% per annum plus the applicable Letter of Credit Fee or (C) in the case of any other amount, 2.00% per annum plus the interest rate (at the Base Rate) and Applicable Rate otherwise applicable to Base Rate Loans as provided in Section 2.08(a) at such time.
(c)Interest on each Loan shall be paid in arrears on each Interest Payment Date and at such other times as may be specified herein. Interest shall also be paid on the Maturity Date. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Interest on each Extraordinary Advance shall be due and payable on demand. All Letter of Credit Fees payable hereunder, and all fronting fees and all commissions, other fees, charges and expenses provided for in Section 2.03(j) shall be due and payable, in arrears, on the first Business Day of each calendar quarter. The Borrowers hereby authorize the Administrative Agent, from time to time without prior notice to the Borrowers, to charge to the Loan Account to the extent not received by 1:00 p.m. on the applicable due date (A) on each Interest Payment Date, all interest accrued during such quarter on the Revolving Credit Loans hereunder, (B) on the first Business Day of each quarter, all Letter of Credit Fees accrued or chargeable hereunder during the immediately preceding quarter, (C) on the day becoming due and payable, all fees and costs provided for in Section 2.09(a)(i), (D) on the first calendar day of each quarter, the Unused Line Fee accrued during the prior quarter pursuant to Section 2.09(a)(ii), (E) on the day becoming due and payable, all other Lender Group Expenses payable pursuant to Section 10.04(a), and (F) on the day becoming due and payable all other fees and payment obligations payable under any Loan Document.
Section 1.04Fees.
(g)In addition to certain fees described in Section 2.03(j):




(i)Administrative Agent Fees. The Borrowers shall pay to the Administrative Agent, as and when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.
(ii)Unused Line Fee. The Borrowers shall pay to the Administrative Agent, for the account of each Lender in accordance with such Lender’s Pro Rata Share of the Commitments, an unused line fee (each, an “Unused Line Fee”) in an amount equal to 0.175% per annum times (x) the aggregate amount of the Revolving Credit Commitments less (y) the Average Revolver Usage in respect of such Commitments during the preceding fiscal quarter, in each case, subject to adjustment as provided in Section 2.17, which Unused Line Fee shall be due and payable, in arrears, on the first calendar day of each quarter. For purposes of calculating the Unused Line Fee, any Revolving Credit Loans made as Swing Loans shall be excluded from the calculation of Average Revolver Usage during the preceding fiscal quarter.
(iii)Letter of Credit Fee. The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with such Lender’s Pro Rata Share of the Commitments, a Letter of Credit fee (the “Letter of Credit Fee”) (which fee shall be in addition to the fronting fees and commissions and other fees, charges and expenses set forth in Section 2.03(j)) that shall accrue at a per annum rate equal to the Applicable Rate for SOFR Loans times the average amount of the Letter of Credit Usage, which Letter of Credit Fee shall be due and payable, in arrears, on the first Business Day of each quarter.
(iv)Field Examination and Other Fees. The Borrowers shall pay to the Administrative Agent field examination, appraisal and valuation fees and charges, as and when incurred or chargeable, including (A) examiner fees and charges, plus reasonable and documented out-of-pocket expenses (including travel, meals and lodging), in each case for each field examination of any Loan Party or its Subsidiaries and (B) the actual fees and charges paid or incurred by the Administrative Agent plus reasonable and documented out-of-pocket expenses if the Administrative Agent elects to employ the services of one or more third Persons to appraise the Collateral, or any portion thereof.
(a)Other Fees. The Borrowers shall pay to the Arrangers and the Administrative Agent, as and when due and payable under the terms of the Fee Letter and the Commitment Letter (as defined in the Fee Letter), the fees required to be paid pursuant to the Fee Letter and the Commitment Letter.
Section 1.10Computation of Interest and Fees. Unless otherwise indicated in the applicable Loan Document, all computations of interest and fees chargeable under the Loan Documents shall be made on the basis of a year of 360 days (or a 365- or 366-day year, as the case may be, solely in the case of Base Rate Loans based on clause (c) of the definition of “Base Rate”) and calculated based on the number of actual days elapsed. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 1.11Evidence of Indebtedness; Maintenance of Loan Account.
(a)The Administrative Agent shall maintain an account on its books in the name of the Borrowers (the “Loan Account”) on which the Borrowers will be charged with all Revolving Credit Loans (including Extraordinary Advances and Swing Loans) made by the Administrative Agent, the Swing Lender or the Lenders to the Borrowers or for the Borrowers’




account, the Letters of Credit issued or arranged by any L/C Issuer for the Borrowers’ account, and with all other payment obligations hereunder or under the other Loan Documents as and when due and payable, including accrued interest and fees, and, to the extent unpaid after the due date therefor, expenses (including Lender Group Expenses). In accordance with Section 2.12(a), the Loan Account will be credited with all payments with respect to the foregoing received by the Administrative Agent from the Borrowers or for the Borrowers’ account. The Administrative Agent shall make available to the Borrowers monthly statements regarding the Loan Account, including the principal amount of the Revolving Credit Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents. The Loan Account and the accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the applicable Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers 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 and the Loan Account in respect of such matters, the Loan Account shall control in the absence of manifest error.
(b)In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit, Swing Loans and Extraordinary Advances. In the event of any conflict between the Loan Account and the accounts and records of any Lender in respect of such matters, the Loan Account shall control in the absence of manifest error.
(c)Entries made in good faith by the Administrative Agent in the Loan Account or the Register pursuant to Section 2.11(a), and by each Lender in its account or accounts pursuant to Section 2.11(b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrowers to, in the case of the Register or Loan Account, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or Loan Account or such account or accounts shall not limit or otherwise affect the obligations of the Borrowers under this Agreement and the other Loan Documents.
(d)All amounts (including interest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or under any other Loan Document) charged to the Loan Account shall thereafter constitute Revolving Credit Loans hereunder, shall constitute Obligations hereunder, and shall initially accrue interest at the rate then applicable to Revolving Credit Loans that are Base Rate Loans (unless and until converted into SOFR Loans in accordance with the terms of this Agreement).
Section 1.1Payments Generally.
(e)All payments to be made by any Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by any Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, to the Administrative Agent’s Account in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.




(f)If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(g)Unless the applicable Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the applicable Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the applicable Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i)if the applicable Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii)if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and the applicable Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights, which the Administrative Agent or the applicable Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the applicable Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(h)If any Lender makes available to the Administrative Agent funds for any Revolving Credit Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the applicable Borrower by the




Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(i)The obligations of the Lenders hereunder to make Revolving Credit Loans and to fund participations in Letters of Credit, Swing Loans and Extraordinary Advances and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Revolving Credit Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Credit Loan, to purchase its participation or to make its payment under Section 10.04(c).
(j)Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Revolving Credit Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Revolving Credit Loan in any particular place or manner.
(k)Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of such Borrower’s accounts with such Lender any amount so due.
(l)Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of Revolving Credit Loans in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(m)If the Administrative Agent determines at any time that any amount received by the Administrative Agent under this Agreement or any other Loan Document must be returned to any Loan Party or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan Document, the Administrative Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to the Administrative Agent on demand any portion of such amount that the Administrative Agent has distributed to such Lender, together with interest at such rate, if any, as the Administrative Agent is required to pay to any Borrower or such other Person, without setoff, counterclaim or deduction of any kind, and the Administrative Agent will be entitled to set-off against future distributions to such Lender any such amounts (with interest) that are not repaid on demand.
Section 1.3Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Revolving Credit Loans made by it, or the participations in Letter of Credit Usage, Swing Loans or Extraordinary Advances held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such




Lender shall immediately (a) notify the Administrative Agent of such fact and (b) purchase from the other Lenders such participations in the Revolving Credit Loans made by them and/or such subparticipations in the participations in Letter of Credit Usage, Swing Loans or Extraordinary Advances held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Revolving Credit Loans or such participations, as the case may be, pro rata with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. Each Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.08) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Borrower in the amount of such participation; provided further that, so long as the Obligations under the Loan Documents shall not have been accelerated, any excess payment received by any Lender shall be shared on a pro rata basis only with other Lenders. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
The provisions of this Section 2.13 shall not be construed to apply to (x) the application of cash collateral held in connection with Letter of Credit Exposure that has been Cash Collateralized or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Loans or subparticipations in Letter of Credit Usage, Swing Loans or Extraordinary Advances to any assignee or participant, other than an assignment to any Borrower or any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply).
Section 1.4Increase in Revolving Commitments.
(n)So long as no Default has occurred and is continuing and no Default would result therefrom, upon notice to the Administrative Agent, the Parent Borrower may from time to time request an increase in the Commitments on the same terms as the existing Commitments (each request for an increase in Commitments being a “Revolving Credit Commitment Increase”); provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000 (unless the Administrative Agent otherwise agrees) and (ii) the aggregate amount of Revolving Credit Commitment Increases effected from time to time after the Closing Date shall not exceed $150,000,000. Such notice shall set forth (x) the amount of the Revolving Credit Commitment Increase being requested, and (y) the date (an “Increase Effective Date”) on which such Revolving Credit Commitment Increase is requested to become effective (which, unless otherwise agreed by the Administrative Agent, shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Parent Borrower may request additional Commitments from existing Lenders or Additional Lenders and upon execution of a customary joinder agreement, such Additional Lenders shall become Lenders hereunder. Schedule 1.01(e) hereto shall be modified accordingly for all such new Commitments. No Lender shall be obligated to provide any new Commitments unless it so agrees and the




Borrowers shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase.