(ii) Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent may make Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement
or any other Loan Document.
(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark
Replacement, and (B) the effectiveness of any Conforming Changes in connection with the use, administration, adoption, or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or
reinstatement of any tenor of a Benchmark pursuant to Section 2.18(k)(iv) below and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if
applicable, any Lender (or group of Lenders) pursuant to this Section 2.18(k), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any
decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan
Document except, in each case, as expressly required pursuant to this Section 2.18(k).
(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the
implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate or based on a term rate and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any
tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such
unavailable or non-representative tenor; and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (II) is not,
or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or
analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, the Borrower
may revoke any pending request for a Funding bearing interest based on or with reference to such Benchmark or conversion to or continuation of Funding bearing
interest based on or with reference to the affected Benchmark to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Funding or conversion to Funding denominated in Dollars bearing interest under the Base Rate. During a Benchmark Unavailability Period or at any time that a tenor
for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
(l) Survival. Each party’s obligations under this Section 2.18 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement
of, a Lender, the termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(a) Delivery of Subsidiary Guaranties. Concurrent with the designation by the Company of any Subsidiary as a “Designated Subsidiary” pursuant to Section 9.2, the Company
(subject to Section 2.19(c)) will deliver to the Administrative Agent (i) a guaranty (or joinder to a guaranty previously delivered pursuant to this Section 2.19(a)), executed by such Subsidiary, in form and substance satisfactory
to the Administrative Agent, guarantying payment by such Designated Subsidiary of all Obligations of all other Borrowers, (ii) a certificate of the secretary or other appropriate officer of such Subsidiary, in form and substance satisfactory to
the Administrative Agent, (A) certifying that the execution, delivery and performance of such guaranty or joinder have been duly approved by all necessary action of the Governing Board of such Subsidiary, and attaching true and correct copies of
the applicable resolutions granting such approval, (B) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Subsidiary, together with such copies, and (C) certifying the names of the
officers of such Subsidiary that are authorized to sign that guaranty or joinder and (iii) an opinion of counsel to that Subsidiary, opining as to the due execution, delivery and enforceability of such guaranty and joinder, in form and substance
satisfactory to the Administrative Agent.
(b) Company Guaranty. In addition, concurrent with the designation by the Company of the initial “Designated Subsidiary” under Section 9.2, if any, the Company will deliver
to the Administrative Agent (i) a guaranty, executed by the Company, in form and substance satisfactory to the Administrative Agent, guarantying payment by the Company of all Obligations of all other present and future Borrowers, (ii) a
certificate of the secretary or other appropriate officer of the Company, in form and substance satisfactory to the Administrative Agent, (A) certifying that the execution, delivery and performance of that guaranty have been duly approved by all
necessary action of the Governing Board of the Company, and attaching true and correct copies of the applicable resolutions granting such approval, (B) certifying that attached to such certificate are true and correct copies of the Organizational
Documents of the Company, together with such copies, and (C) certifying the names of the officers of the Company that are authorized to sign that guaranty and (iii) an opinion of counsel to the Company, opining as to the due execution, delivery
and enforceability of such guaranty, in form and substance satisfactory to the Administrative Agent.
(c) Foreign Borrowers: Non-Liability for Domestic Borrowings. Notwithstanding any other provision of this Agreement or any other Loan Document, no Borrower that is a Foreign
Subsidiary shall have any obligation or liability hereunder or under the Guaranty (i) on account of any borrowings by any Borrower other than such Foreign Subsidiary or (ii) under Section 9.6 on account of the actions or inactions of any
Borrower other than such Foreign Subsidiary, in each case to the extent that (A)(1) such obligation or liability in respect of the Obligations of such other Borrower or Borrowers is prohibited by applicable law governing such Foreign Subsidiary
or (2) the Company has reasonably determined that such obligation or liability in respect of the Obligations of such other Borrower or Borrowers would have a material adverse tax consequence for the Company or any Subsidiary (including any
material consequence arising from the operation of Section 956 of the Code) and (B) in either case, the Company has so indicated in the applicable Designation Letter. To the extent that at the time any Foreign Subsidiary becomes a Designated
Subsidiary, the circumstances in clause (A)(1) or (A)(2) above are applicable to such Foreign Subsidiary with respect to any other Borrower or Borrowers and the Company has so indicated in the applicable Designation Letter, (x) in
the case of a Foreign Subsidiary as to which either of such clauses is applicable in respect of the Obligations of all other Borrowers, such Foreign Subsidiary shall not be obligated to execute the Guaranty and (y) in the case of a Foreign
Subsidiary as to which either of such clauses is applicable in respect of the Obligations of only certain other Borrowers, such Foreign Subsidiary shall be obligated to execute the Guaranty or a joinder thereto on terms which limit such Foreign
Subsidiary’s guarantee thereunder to the Obligations of the Borrower or Borrowers as to which such circumstances do not apply. The Administrative Agent is authorized from time to time in connection with the designation of new Designated
Subsidiaries to consent to and enter into such amendments or modifications of the Guaranty as it deems appropriate to assure that no Foreign Subsidiary which is a Borrower is obligated under the Guaranty in respect of the Obligations of any other
Borrower as to which the circumstances in clause (A)(1) or (A)(2) above are applicable in the case of such Designated Subsidiary. The Company agrees that from time to time in connection with the designation of new Designated
Subsidiaries it shall cause pre-existing Designated Subsidiaries to execute such amendments or modifications of the Guaranty as the Administrative Agent deems appropriate to assure that each Designated Subsidiary is liable under the Guaranty for
the Obligations of all other Borrowers as to which the circumstances in clause (A)(1) or (A)(2) above are not applicable in the case of such Designated Subsidiary.
Section 2.21
Substitution of Lender.
Upon the receipt by the Company from any Lender (or any of its Participants) (an “Affected Lender”) of a notice of illegality under Section 2.3(e) or a claim for compensation under Section 2.17
or 2.18, or if any Lender shall be a Defaulting Lender or a Non-Consenting Lender, the Company may: (a) request that one or more of the other Lenders assume all or part of such Affected Lender’s, Defaulting Lender’s or Non-Consenting
Lender’s, as applicable, Advances and Term Loan Commitment (which request each such other Lender may decline or agree to in its sole discretion); or (b) designate a replacement bank or other entity satisfactory to the Company to acquire and
assume all or part of such Affected Lender’s, Defaulting Lender’s or Non-Consenting Lender’s, as applicable, Advances and Term Loan Commitment at the face amount thereof (a “Substitute Lender”). Any such designation of a Substitute Lender
under clause (b) above shall be subject to the prior written consent of the Administrative Agent (which consent shall not unreasonably be withheld, conditioned or delayed). Any transfer of Advances or Term Loan Commitments pursuant to
this Section 2.21 shall be made in accordance with Section 9.8, and the Affected Lender, Defaulting Lender or Non-Consenting Lender, as applicable shall be entitled to payment in full of the principal amount of its outstanding
Advances, all accrued interest thereon, and all accrued fees to the date of such transfer.
ARTICLE III
Section 3.1 Conditions to Effectiveness and Initial Credit Extensions.
The effectiveness of this Agreement and the obligation of the Lenders to consummate this Agreement and to make or participate in the initial Credit Extension is subject to the delivery of the below documents, each in
form and substance satisfactory to the Administrative Agent, and the satisfaction of the other conditions below:
(a) This Agreement, duly executed by the Company, the Administrative Agent and each Lender.
(b) Any Notes requested by any Lenders pursuant to Section 2.1, properly executed on behalf of the Company.
(c) A certificate of the secretary or other officer of the Company (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated
hereunder have been duly approved by all necessary action of the Governing Board of the Company (or the Audit Committee thereof, if such committee is authorized to act on behalf of the Governing Board of the Company), and attaching true and
correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the Company, together with such copies, and (iii) certifying the
names of the officers of the Company who are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers.
(d) A certificate from the president or a Responsible Officer of the Company to the effect that (i) all of the representations and warranties contained in this Agreement and the other Loan
Documents are correct in all material respects (or correct in all respects, if any such representation and warranty is qualified by materiality or reference to Material Adverse Change) on the Effective Date, except to the extent that such
representations and warranties relate solely to an earlier date, in which case such representations and warranties shall remain correct in all material respects (or correct in all respects, if any such representation and warranty is qualified by
materiality or reference to Material Adverse Change) as of such earlier date, and (ii) no event has occurred and is continuing, or would result from any Credit Extension being made on the Effective Date, which constitutes a Default or an Event of
Default.
(e) A certificate of good standing of the Company from the Secretary of State of its jurisdiction of incorporation, dated not more than thirty days before the Effective Date.
(f) Signed copy of a written opinion of Foley & Lardner LLP, special counsel to the Company, addressed to the Administrative Agent and the Lenders and in form and substance reasonably
satisfactory to the Administrative Agent.
(g) Evidence of all insurance required under Section 5.6, in each case with customary and required endorsements in favor of the Administrative Agent and reasonably satisfactory to
the Administrative Agent.
(h) Evidence that all material governmental and third-party consents required to effectuate the transactions contemplated hereby have been obtained and are in full force and effect.
(i) The Company shall have paid all fees required to be paid as of the Effective Date under this Agreement or the Fee Letter, including reasonable fees of counsel for the Administrative
Agent for which a statement has been received at least one (1) Business Day prior to the Effective Date.
(j) Such other documents (including “know your customer” information) as the Administrative Agent or any Lender may reasonably deem necessary or advisable in connection with the initial
Credit Extensions.
(k) A Beneficial Ownership Certification in relation to the Company (or a certification that the Company qualifies for an express exclusion from the
“legal entity customer” definition under the Beneficial Ownership Regulation) to any Lender requesting the same.
(l) A Compliance Certificate dated as of the Effective Date and calculated as of the last day of the most recently completed fiscal quarter of the
Company, duly executed by the chief financial officer or treasurer of the Company.
(m) Evidence that the Company has made a minimum equity investment of $1,000 in CoBank.
(n) Such financial statements, budgets, forecasts and other financial information as to the Company as reasonably requested by the Administrative Agent or
any other Lender prior to the Effective Date.
Without limiting the generality of the provisions of Section 8.6, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from
such Lender prior to the proposed Effective Date specifying its objection thereto.
Section 3.2 Additional Conditions Precedent to Credit Extensions to
Designated Subsidiaries.
The obligation of the Lender Parties to provide any Credit Extension to any Designated Subsidiary is subject to the further condition precedent that the Administrative Agent shall have
received, on or before the day of the first Credit Extension to such Designated Subsidiary, all of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(a) A Designation Letter, duly executed by such Designated Subsidiary and the Company.
(b) A certificate of an appropriate officer (or individual performing the function thereof) of such Designated Subsidiary (i) certifying that the execution, delivery and performance of the
Loan Documents and other documents contemplated hereunder have been duly approved by all necessary action of the Governing Board of such Designated Subsidiary, and attaching true and correct copies of the applicable resolutions granting such
approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of such Designated Subsidiary, together with such copies, and (iii) certifying the names of the officers of such Designated
Subsidiary who are authorized to sign the Designation Letter and other documents contemplated hereunder, together with the true signatures of such officers.
(c) A certificate of good standing (or equivalent certificate or confirmation, in each case to the extent available in the applicable jurisdiction) of such Designated Subsidiary, dated not
more than thirty days before such date.
(d) A signed copy of an opinion of counsel for such Designated Subsidiary, addressed to the Administrative Agent and the Lenders, opining as to the due execution, delivery and
enforceability of the Loan Documents to which such Designated Subsidiary is a party and as to such other matters as the Administrative Agent may reasonably request.
(e) To the extent not previously delivered, such documents as are required by Section 2.19(a).
(f) Such other documents (including “know your customer” information) as the Administrative Agent or the Required Lenders may reasonably deem necessary or advisable in connection with the
initial Credit Extension to such Designated Subsidiary.
(g) A Beneficial Ownership Certification in relation to such Designated Subsidiary (or a certification that such Designated Subsidiary qualifies for an
express exclusion from the “legal entity customer” definition under the Beneficial Ownership Regulation) to any Lender requesting the same.
Section 3.3 Conditions Precedent to All Credit Extensions.
The obligation of the Lender Parties to provide any Credit Extension is subject to the further conditions precedent that on the date of such Credit Extension:
(a) The representations and warranties contained in
Article IV are correct in all material respects (or correct in all respects, if any such
representation and warranty is qualified by materiality or reference to Material Adverse Change) on and as of the date of such Credit Extension as though made on and as of such date, except to the extent that such representations and warranties
relate solely to an earlier date, in which case such representations and warranties shall remain correct in all material respects (or correct in all respects, if any such representation and warranty is qualified by materiality or reference to
Material Adverse Change) as of such earlier date;
provided that the representations and warranties set forth in Sections 4.6, 4.7, 4.8 and 4.15 shall only be made with respect to the initial Credit Extension on the Effective Date.
(b) The Borrower requesting such Credit Extension has delivered to the Administrative Agent a certificate in the form of Exhibit F hereto, duly executed by a person authorized to
request Credit Extensions on behalf of that Borrower.
(c) No event has occurred and is continuing, or would result from such Credit Extension, which constitutes a Default or an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders as follows:
Section 4.1 Corporate Existence and Power.
The Company and its Subsidiaries are each duly organized or incorporated (as applicable), validly existing and in good standing under the laws of their respective jurisdictions of incorporation or organization (as
applicable), and are each duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by them makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified (a) will not permanently preclude the Company or any Subsidiary from maintaining any material action in any such jurisdiction even though such action arose in whole or in part during the
period of such failure, and (b) will not result in any other Material Adverse Change. The Company has (and, upon becoming a Borrower hereunder, each Designated Subsidiary will have) all requisite power and authority, corporate or otherwise, to
conduct its business, to own its properties and to execute and deliver, and to perform all of its obligations under, the Loan Documents.
Section 4.2 Authorization of Borrowing; No Conflict as to Law or
Agreements.
The execution, delivery and performance by the Borrowers of the Loan Documents, the borrowings from time to time hereunder, the issuance of the Notes, and the consummation of the transactions herein and therein
contemplated, have been duly authorized by all necessary corporate or other organizational action and do not and will not (a) require any consent or approval of the equityholders of any Borrower, or any authorization, consent, approval, order,
filing, registration or qualification by or with any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, other than those consents described in Schedule 4.2, each of which has been obtained
and is in full force and effect, (b) violate any provision of any law, rule or regulation (including Regulation X of the FRB and Section 7 of the Exchange Act or any regulation promulgated thereunder) or of any order, writ, injunction or decree
presently in effect having applicability to any Borrower or of the Organizational Documents of any Borrower, (c) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease
or instrument to which the Company or any Subsidiary is a party or by which it or its properties may be bound or affected, or (d) result in, or require, the creation or imposition of any Lien or other charge or encumbrance of any nature upon or
with respect to any of the properties now owned or hereafter acquired by the Company or any Subsidiary.
Section 4.3 Legal Agreements.
This Agreement and the other Loan Documents constitute the legal, valid and binding obligations of the Borrowers, enforceable against the Borrowers in accordance with their respective terms, except to the extent that
such enforcement may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.
Section 4.4 Subsidiaries.
Schedule 4.4 hereto is a complete and correct list of all Subsidiaries as of the Effective Date and of the percentage of the ownership of the Company or any other Subsidiary in each as of the Effective Date.
Except as otherwise indicated on Schedule 4.4, all shares of each Subsidiary owned by the Company or by any such other Subsidiary are validly issued and fully paid and non-assessable.
Section 4.5 Financial Condition; Accuracy of Disclosure.
The Company has heretofore furnished to the Administrative Agent the audited consolidated financial statements of the Company and its Subsidiaries for the year ended December 31, 2025. Those financial statements
fairly present in all material respects the financial condition of the Company on the date thereof and the results of its operations and cash flows for the period then ended, and were prepared in accordance with GAAP. The information, exhibits
and reports furnished by the Company to the Lender Parties, taken as a whole, in connection with the negotiation of or compliance with the Loan Documents did not contain any material misstatement of fact or omit to state a material fact or any
fact necessary to make the statements contained therein not misleading. As of the Effective Date, all of the information included in any Beneficial Ownership Certification delivered hereto is true and correct.
Section 4.6 Adverse Change.
There has been no Material Adverse Change between December 31, 2025 and the Effective Date.
Except as set forth in Schedule 4.7, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or the properties of
the Company or any Subsidiary before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which could reasonably be expected to effect a Material Adverse Change.
Section 4.8 Hazardous Substances.
Except as set forth in Schedule 4.8, to the best of the Company’s knowledge, (a) neither the Company nor any Subsidiary or other Person has ever caused or permitted any Hazardous Substance to be disposed of
on, under or at any real property which is operated by the Company or any Subsidiary or in which the Company or any Subsidiary has any interest, except to the extent that such disposal cannot reasonably be expected to result in a Material Adverse
Change and (b) no such real property has ever been used (either by the Company or by any Subsidiary or other Person) as a dump site or permanent or temporary storage site for any Hazardous Substance in a manner that could reasonably be expected
to result in a Material Adverse Change.
Section 4.9 Regulation U.
Neither the Company nor any Subsidiary is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Credit Extension will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
The Company and its Subsidiaries have each paid or caused to be paid to the proper authorities when due all material federal and all material state and local Taxes required to be withheld and paid by them. The
Company and its Subsidiaries have each filed all federal, state and local Tax returns which to the knowledge of the officers of the Company or any Subsidiary are required to be filed, and the Company and its Subsidiaries have each paid or caused
to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, other than taxes whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which the Company or applicable Subsidiary has provided adequate reserves in accordance with GAAP and to the extent that nonpayment would not result in a Material Adverse Change. Neither any transaction
contemplated by the Loan Documents, nor any transaction to be carried out in connection with any transaction contemplated thereby, meets any hallmark set out in Annex IV of the Council Directive of 25 May 2018 (2018/822/EU) amending Directive
2011/16/EU.
Section 4.11 Burdensome Restrictions.
Neither the Company nor any Subsidiary is a party to or bound by any agreement, or subject to any restriction in any Organizational Document, or any requirement of law, which would reasonably be expected to effect a
Material Adverse Change. Neither the Company nor any Subsidiary is a party to any presently effective agreement that, if entered into after the Effective Date, would constitute a breach of Section 6.7.
Section 4.12 Titles and Liens.
The Company or one of its Subsidiaries has good title to each of the properties and assets material to the operations of the Company and its Subsidiaries, taken as a whole, which it purports to own or which are
reflected as owned on its books and records, in each case free and clear of all Liens and encumbrances, except for Liens and encumbrances permitted by Section 6.1 and covenants, restrictions, rights, easements and irregularities in title
which do not materially interfere with the business or operations of the Company and its Subsidiaries taken as a whole.
The present value of all accumulated benefit obligations under each under-funded Plan (based on FASB No. 87 assumptions) did not, as of the date of the most recent financial statements reflecting such amounts,
hereafter, exceed by more than $20,000,000 the fair market value of the assets of such under-funded Plan allocable to such accrued benefits, and no liability to the Pension Benefit Guaranty Corporation or the IRS has been, or is expected by the
Company or any Subsidiary or ERISA Affiliate to be, incurred with respect to any Plan that could become a liability of the Company or any Subsidiary except to the extent that any such circumstance could not reasonably be expected to result in a
Material Adverse Change.
Section 4.14 Investment Company Act.
No Borrower is, and no Borrower will at any time be, an “investment company,” as such term is defined in the Investment Company Act.
On the Effective Date and after giving effect to the transactions to occur on the Effective Date, the Company and its Subsidiaries, taken as a whole, are Solvent.
Section 4.16 Swap Obligations.
Neither the Company nor any of its Subsidiaries has incurred any outstanding obligations under any Swap Contracts, other than Permitted Swap Obligations.
The properties of the Company and its Subsidiaries are insured with responsible and reputable insurance companies not Affiliates of the Company, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company and such Subsidiaries operate.
Section 4.18 Compliance with Laws.
The Company and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of their respective properties, assets and rights, where failure to comply would result in a Material Adverse Change.
Section 4.19 No Contractual Default.
Neither the Company nor any Subsidiary is in violation of any term of any contract, agreement, judgment or decree, the violation of which would (individually or together with all other such violations in existence)
result in a Material Adverse Change.
Section 4.20 Anti-Terrorism; Anti-Money Laundering; Anti-Corruption Laws; Sanctions.
Neither the Company nor any Subsidiary nor any of their respective officers or directors (a) is in violation in any material respect of (i) the Trading with the Enemy Act, (ii) any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto, (iii) the Patriot Act or (iv) any applicable Sanctions (collectively, the “Anti-Terrorism
Laws”) or (b) is a Sanctioned Person. No part of the proceeds of any Credit Extension hereunder will be unlawfully used directly or knowingly indirectly to fund any operations of or in, finance any investments or activities of or in or make
any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by any Person (including any Lender, any Arranger or the Administrative Agent) of any Anti-Terrorism Laws. The Company has
implemented and maintains in effect policies and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents in all material respects with Anti-Corruption Laws,
Anti-Money Laundering Laws and applicable Sanctions, and the Company, its Subsidiaries and, to their knowledge, their respective directors, officers, employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in
all material respects.
Section 4.21 Affected Financial Institutions.
Neither Company nor any Subsidiary is an Affected Financial Institution.
ARTICLE V
AFFIRMATIVE COVENANTS OF THE COMPANY
So long as any Obligations (other than obligations of indemnification described in Section 9.6 that are not then due and payable) remain unpaid or any Term Loan Commitment shall be outstanding, the Company
will comply with the following requirements, unless the Required Lenders shall otherwise consent in writing:
Section 5.1 Financial
Statements.
The Company will deliver to the Administrative Agent (for further distribution to each Lender):
(a) As soon as available, and in any event within 90 days after the end of each fiscal year of the Company, a copy of the annual audit report of the Company and its Subsidiaries prepared by
nationally recognized independent certified public accountants, which annual report shall include the balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related statements of income, shareholders’ equity
and cash flows of the Company and its Subsidiaries for the fiscal year then ended, all presented on a consolidated basis in reasonable detail and all prepared in accordance with GAAP.
(b) As soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Company, the balance sheet of the Company and its
Subsidiaries as at the end of such quarter and related statements of earnings and cash flows of the Company and its Subsidiaries for such quarter and for the year to date, in reasonable detail and prepared on a consolidated basis in accordance
with GAAP, subject to year-end adjustments.
(c) Concurrent with the delivery of any financial statements pursuant to Section 5.1(a) or (b), a Compliance Certificate, duly executed by the chief financial officer or
treasurer of the Company.
(d) Promptly after the sending or filing thereof, copies of all regular and periodic financial reports which the Company or any Subsidiary shall file with the SEC or any national securities
exchange.
(e) Immediately after the commencement thereof, notice in writing of all litigation and of all proceedings before any governmental or regulatory agency affecting the Company or any
Subsidiary of the type described in Section 4.7 or which seek a monetary recovery against the Company or any Subsidiary combined in excess of $10,000,000.
(f) As promptly as practicable (but in any event not later than five Business Days) after an officer of the Company obtains knowledge of the occurrence of any Default or Event of Default,
notice of such occurrence, together with a detailed statement by a Responsible Officer of the Company of the steps being taken by the Company to cure the effect of such event.
(g) Promptly upon becoming aware of any Reportable Event or the occurrence of a prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in connection with
any Plan or any trust created thereunder, which could reasonably be expected to result in a liability to Company or any Subsidiary in excess of $20,000,000 or in the imposition of a Lien, a written notice specifying the nature thereof, what
action the Company has taken, is taking or proposes to take with respect thereto, and, when known, any action taken or threatened by the IRS, the Pension Benefit Guaranty Corporation or the Department of Labor with respect thereto.
(h) Promptly upon their receipt, copies of (i) all notices received by the Company, any Subsidiary or ERISA Affiliate of the Pension Benefit Guaranty Corporation’s intent to terminate any
Plan or to have a trustee appointed to administer any Plan, and (ii) all notices received by the Company, any Subsidiary or any ERISA Affiliate from a Multiemployer Plan concerning the imposition or amount of withdrawal liability imposed pursuant
to Section 4202 of ERISA, which withdrawal liability individually or in the aggregate exceeds $20,000,000.
(i) All notices required to be delivered under Section 9.14.
(j) Promptly, notice of any change in the information in any Beneficial Ownership Certification delivered pursuant hereto that would result in a change
to the list of beneficial owners identified therein (or, if applicable, any Borrower ceasing to fall within an express exclusion to the definition of “legal entity customer” under the Beneficial Ownership Regulation).
(k) Promptly upon the reasonable request of the Administrative Agent or any Lender, any information or documentation requested for purposes of complying
with the Beneficial Ownership Regulation.
(l) Such other information respecting the financial condition and results of operations of the Company or any Subsidiary as any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to this Section 5.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Company’s website on the Internet at the website address of www.sensient.com or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender if the Administrative Agent or such Lender, as the case may be, requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or
such Lender, as applicable, and (B) the Company shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company
with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Section 5.2 Books and Records; Inspection and Examination.
The Company will keep, and will cause each Subsidiary to keep, accurate books of record and account for itself in which true and complete entries will be made in accordance with GAAP. Upon request of any Applicable
Party, as defined below, the Company will, and will cause each Subsidiary to, give any representative of such Applicable Party access to, and permit such representative to examine, copy or make extracts from, any and all books, records and
documents in its possession (except to the extent that such access is restricted by law or by a bona fide non-disclosure agreement not entered into primarily for the purpose of evading the requirements of this Section 5.2), to inspect any
of its properties (subject to such physical security requirements as the Company or the applicable Subsidiary may require) and to discuss its affairs, finances and accounts with any of its principal officers, all at such times during normal
business hours, upon reasonable notice, and as often as such Applicable Party may reasonably request. As used in this Section 5.2, “Applicable Party” means (a) so long as any Event of Default has occurred and is continuing, the
Administrative Agent or any Lender, and (b) at all other times, the Administrative Agent. The provisions of this Section 5.2 shall in no way preclude any Lender from discussing the general affairs, finances and accounts of the Company
with any of its principal officers at such times during normal business hours and as often as may be agreed to between the Company and such Lender.
Section 5.3 Compliance with Laws.
The Company will, and will cause each Subsidiary to, comply with the requirements of applicable laws and regulations, the non-compliance with which would effect a Material Adverse Change. In addition, and without
limiting the foregoing sentence, the Company will (a) ensure, and cause each Subsidiary to ensure, that no Person who owns a controlling interest in or otherwise controls the Company or any Subsidiary is or shall be a Sanctioned Person, (b) not
use or permit the use of the proceeds of any Credit Extension in a manner inconsistent with the second sentence of Section 4.20 and not repay any Credit Extension with funds derived from any unlawful activity and (c) comply, and cause
each Subsidiary to comply, with all Anti-Terrorism Laws in all material respects.
Section 5.4 Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or discharge, when due, (a) all Taxes, assessments and governmental charges levied or imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which penalties attach thereto, (b) all federal, state and local Taxes required to be withheld by it, and (c) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien
or charge upon any properties of the Company or any Subsidiary; provided that neither the Company nor any Subsidiary shall be required to pay any such tax, assessment, charge or claim (i) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which the Company or such Subsidiary has provided adequate reserves in accordance with GAAP or (ii) where failure to pay such tax, assessment, charge or claim could not reasonably be
expected to result in a liability in excess of $5,000,000.
Section 5.5 Maintenance of Properties.
The Company will keep and maintain, and will cause each Subsidiary to keep and maintain, all of its properties necessary or useful in its business in good condition, repair and working order; provided that
nothing in this Section 5.5 shall prevent the Company or any Subsidiary from discontinuing the operation and maintenance of, or disposing of, any of its properties if (a)(i) such discontinuance or disposition is, in the reasonable
judgment of the Company or that Subsidiary, desirable in the conduct of its business, and (ii) no Default or Event of Default exists at the time of, or will be caused by, such discontinuance or disposition or (b) such discontinuance or
disposition relates to obsolete or worn-out property.
The Company will, and will cause each Subsidiary to, obtain and maintain insurance with insurers reasonably believed by the Company or such Subsidiary to be responsible and reputable, in such amounts and against such
risks as are consistent with sound business practice.
Section 5.7 Preservation of Corporate Existence.
The Company will, and will cause each Subsidiary to, preserve and maintain its corporate existence and all of its rights, privileges and franchises; provided that neither the Company nor any Subsidiary shall
be required to preserve any of its rights, privileges and franchises or to maintain its corporate existence if (a) its Governing Board shall reasonably determine that the preservation or maintenance thereof is no longer desirable in the conduct
of the business of the Company or that Subsidiary, and (b) no Default or Event of Default exists upon, or will be caused by, the termination of such right, privilege, franchise or existence; provided, further, that in no event
shall the foregoing be construed to permit the Company to terminate its corporate existence.
Section 5.8 Use of Proceeds.
The Company will, and will cause each Subsidiary to, use the proceeds of the Advances for working capital and other general corporate purposes and to refinance other indebtedness of the Borrowers. The Company will
not, nor will it permit any Subsidiary to, use any of the proceeds of the Advances to purchase or carry any “margin stock” (as defined in Regulation U of the Board of Governors of the Federal Reserve System) or to make any acquisition of any
corporation, limited liability company or other business entity unless, prior to making such acquisition, the Company or such Subsidiary shall have obtained written approval from the Governing Board of such entity.
Section 5.9 Most Favored Lender Status.
(a) If after the Effective Date the Company or any Subsidiary (i) enters into any amendment or other modification of any Note Agreement (such
amendment or modification, and the applicable Note Agreement as amended or modified thereby, an “
Amended Credit Facility”) or (ii) enters into any new credit facility, whether with commercial banks or other Institutional Investors pursuant
to a credit agreement, note purchase agreement or other like agreement under which the Company or any Subsidiary may incur Total Funded Debt in an amount equal to or greater than $50,000,000 (in any such case, a “
New Credit Facility”),
that in either case results in one or more additional or more restrictive (than those contained in this Agreement) financial covenants (it being understood and agreed that for purposes of this
Section 5.9, any reference to a “financial
covenant” shall include (x) any covenant
restricting the Company or any of its Subsidiaries from creating, issuing, assuming, guaranteeing, incurring or otherwise becoming liable with respect to priority debt,
and (y) the applicable defined terms used in any such financial covenant or priority debt covenant) (or events of default which are the functional equivalent of financial covenants (including the applicable defined terms used in such
events of default, “
Financial Events of Default”)) being contained in any such Amended Credit Facility or New Credit Facility, as the case may be (such additional or more restrictive financial covenants or Financial Events of Default, as
the case may be, in the case of an Amended Credit Facility, the “
Existing Facility Additional Provision(s)” and in the case of a New Credit Facility, the “
New Facility Additional Provision(s)”; and such financial covenants and
Financial Events of Default shall be an Existing Facility Additional Provision(s) or New Facility Additional Provision(s) only to the extent not already included herein, or if already included herein, only to the extent more restrictive than the
analogous covenants or events of default included herein), than the terms of this Agreement, without any further action on the part of the Company, any Subsidiary, the Administrative Agent or any of the Lenders, will unconditionally be deemed on
the effective date of such Amended Credit Facility or New Credit Facility, as the case may be, to be automatically amended to include the Existing Facility Additional Provision(s) or such New Facility Additional Provision(s), as the case may be,
and any event of default in respect of any such additional or more restrictive financial covenant(s) or Financial Events of Default so included herein shall be deemed to be an Event of Default under
Section 7.1(b) (after giving effect to
any grace or cure provisions under such Existing Facility Additional Provision(s) or such New Facility Additional Provision(s) or event of default), subject to all applicable terms and provisions of this Agreement, including all rights and
remedies exercisable by the Administrative Agent and the Lenders.
(b) If after the date of execution of any Amended Credit Facility or a New Credit Facility, as the case may be, any one or more of the Existing Facility Additional Provision(s) or the New
Facility Additional Provision(s) is excluded, terminated, loosened, tightened, amended or otherwise modified under the corresponding Amended Credit Facility or New Credit Facility, as applicable, then and in such event any such Existing Facility
Additional Provision(s) or New Facility Additional Provision(s) theretofore included in this Agreement pursuant to the requirements of Section 5.9(a) shall then and thereupon automatically and without any further action by any Person be
so excluded, terminated, loosened, tightened or otherwise amended or modified under this Section 5.9(b) to the same extent as the exclusion, termination, loosening, tightening of other amendment or modification thereof under the Amended
Credit Facility or New Credit Facility; provided that if a Default or Event of Default shall have occurred and be continuing by reason of the Existing Facility Additional Provision(s) or the New Facility Additional Provision(s) at the
time any such Existing Facility Additional Provision(s) or New Facility Additional Provision(s) is or are to be so excluded, terminated, loosened, tightened, amended or modified under this Section 5.9(b) the prior written consent thereto
of the Required Lenders shall be required as a condition to the exclusion, termination, loosening, tightening or other amendment or modification of any such Existing Facility Additional Provision(s) or New Facility Additional Provision(s), as the
case may be; provided, further, that in any and all events, the covenant(s) or event(s) of default (and related definitions) constituting any financial covenant and Financial Events of Default contained in this Agreement as in
effect on the Effective Date (and as amended otherwise than by operation of this Section 5.9(b)) shall not in any event be deemed or construed to be excluded, loosened or relaxed by operation of the terms of this Section 5.9(b)
and only any such Existing Facility Additional Provision(s) or New Facility Additional Provision(s) shall be so excluded, terminated, loosened, tightened, amended or otherwise modified pursuant to the terms hereof.
(c) The Company shall notify the Administrative Agent of the inclusion or amendment of any financial covenants or Financial Events of Default by operation of Section 5.9 and from
time to time, upon request by the Administrative Agent or the Required Lenders, promptly execute and deliver at its expense (including the reasonable and documented fees and expenses of the Administrative Agent) an amendment to this Agreement in
form and substance reasonably satisfactory to the Administrative Agent evidencing that, pursuant to this Section 5.9, this Agreement then and thereafter includes, excludes, amends or otherwise modifies any Existing Facility Additional
Provision(s) or New Facility Additional Provision(s), as the case may be; provided that the execution and delivery of such amendment shall not be a precondition to the effectiveness of such amendment.
(d) The Company agrees that it will not, nor will it permit any Subsidiary or Affiliate to, directly or indirectly, pay or cause to be paid any consideration or remuneration, whether by way
of supplemental or additional interest, fee or otherwise, to any creditor of the Company, any co-obligor or any Subsidiary as consideration for or as an inducement to the entering into by any such creditor of any amendment, waiver or other
modification to any Amended Credit Facility or New Credit Facility, as the case may be, the effect of which amendment, waiver or other modification is to exclude, terminate, loosen, tighten or otherwise amend or modify any Existing Facility
Additional Provision(s) or New Facility Additional Provision(s), unless such consideration or remuneration is concurrently paid, on the same terms, ratably to the Lenders.
(e) Notwithstanding anything to the contrary set forth herein, the Company and its Subsidiaries shall only be required to comply with this Section 5.9 during such time that any Note
Agreement (including any Amended Credit Facility) or any New Credit Facility contains an MFN Provision that does not have a provision similar to this Section 5.9(e).
Section 5.10 Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.
The Company will, and will cause each Subsidiary to, maintain in effect policies and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective
directors, officers, employees and agents in all material respects with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions.
Section 5.11 Farm Credit Equity and Securities.
(a) So long as any Farm Credit Lender (or its Affiliate) is a Lender hereunder, each Borrower shall (a) maintain its status as an entity eligible to borrow from such Farm Credit Lender (or
its Affiliate) and (b) acquire equity in such Farm Credit Lender in such amounts and at such times as such Farm Credit Lender may require in accordance with such Farm Credit Lender’s Bylaws and Capital Plan (as each may be amended from time to
time), except that the maximum amount of equity that the Borrowers may be required to purchase in such Farm Credit Lender in connection with the Advances made by such Farm Credit Lender (or its Affiliate) may not exceed the maximum amount
permitted by the Bylaws and the Capital Plan as of the Effective Date. Each Borrower acknowledges receipt of a copy of (i) CoBank’s most recent annual report, and if more recent, CoBank’s latest quarterly report, (ii) CoBank’s Notice to
Prospective Stockholders and (iii) CoBank’s Bylaws and Capital Plan as in effect as of the date hereof, which describe the nature of all of CoBank’s Farm Credit Equities as well as capitalization requirements, and agrees to be bound by the terms
thereof.
(b) Each party hereto acknowledges that such Farm Credit Lender’s Bylaws and Capital Plan (as each may be amended from time to time) shall govern (i) the rights and obligations of the
parties with respect to the applicable Farm Credit Equities and any patronage refunds or other distributions made on account thereof or on account of the Borrowers’ patronage with such Farm Credit Lender, (ii) the Borrowers’ eligibility for
patronage distributions from such Farm Credit Lender (in the form of Farm Credit Equities and cash) and (iii) patronage distributions, if any, in the event of a sale of a participation interest. Each Farm Credit Lender reserves the right to
assign or sell participations in all or any part of its (or its Affiliate’s) Term Loan Commitments or outstanding Advances hereunder on a non-patronage basis.
(c) Notwithstanding anything herein or in any other Loan Document to the contrary, each party hereto acknowledges that: (i) each Farm Credit Lender has a statutory first Lien pursuant to
the Farm Credit Act of 1971 (as amended from time to time) on its respective Farm Credit Equities that the Borrowers may now own or hereafter acquire, which statutory Lien shall be for such Farm Credit Lender’s (or its Affiliate’s) sole and
exclusive benefit; (ii) during the existence of any Event of Default, each Farm Credit Lender may at its sole discretion, but shall not be required to, foreclose on its statutory first Lien on the applicable Farm Credit Equities and/or set off
the value thereof or of any cash patronage against the Obligations; (iii) during the existence of any Event of Default, each Farm Credit Lender may at its sole discretion, but shall not be required to, without notice except as required by
applicable law, retire and cancel all or part of the applicable Farm Credit Equities owned by or allocated to the Borrowers in accordance with the Farm Credit Act of 1971 (as amended from time to time) and any regulations promulgated pursuant
thereto in total or partial liquidation of the Obligations for such value as may be required pursuant applicable law and such Farm Credit Lender’s Bylaws and Capital Plan (as each may be amended from time to time); (iv) the Farm Credit Equities
and any Lien thereon shall not constitute security for the Obligations due to the Administrative Agent for the benefit of any Lender or Lender Party other than the applicable Farm Credit Lender; (v) any setoff effectuated pursuant to the
preceding clauses (ii) or (iii) may be undertaken whether or not the Obligations are currently due and payable; and (vi) no Farm Credit Lender shall have any obligation to retire the Farm Credit Equities upon any Event of Default, Default or any
other default by the Borrowers, or at any other time, either for application to the Obligations or otherwise. Each Borrower acknowledges that any corresponding tax liability associated with any Farm Credit Lender’s application of the value of the
Farm Credit Equities to any portion of the Obligations is the sole responsibility of the Borrowers.
ARTICLE VI
So long as any Obligations (other than obligations of indemnification described in Section 9.6 that are not then due and payable) remain unpaid or any Term Loan Commitment shall be outstanding, the Company
agrees that, without the prior written consent of the Required Lenders:
The Company will not create, incur, assume or suffer to exist any Lien on any of its assets, now owned or hereafter acquired, and will not permit any Subsidiary to create, incur, assume or suffer to exist any Lien on
any of such Subsidiary’s assets, now owned or hereafter acquired, except the following:
(a) Liens for taxes or assessments or other governmental charges to the extent not required to be paid by Section 5.4;
(b) materialmen’s, merchants’, carriers’ worker’s, repairer’s, or other like liens arising in the ordinary course of business to the extent not required to be paid by Section 5.4;
(c) pledges or deposits to secure obligations under worker’s compensation laws, unemployment insurance, social security and other similar laws, or to secure the performance of bids,
tenders, contracts (other than for the repayment of borrowed money) or leases or to secure statutory obligations or surety or appeal bonds, or to secure indemnity, performance or other similar bonds in the ordinary course of business;
(d) zoning restrictions, easements, licenses, restrictions on the use of real property or minor irregularities in title thereto, which do not materially impair the use of such property in
the operation of the business of the Company and its Subsidiaries taken as a whole or the value of such property for the purpose of such business;
(e) purchase money Liens upon or in property acquired after the Effective Date; provided that (i) such Lien is created not later than the 120th day following the acquisition or
completion of construction of such property by the Company or its applicable Subsidiary, and (ii) no such Lien extends or shall extend to or cover any property of the Company or its Subsidiaries other than the property then being acquired, fixed
improvements then or thereafter erected thereon and improvements and modifications thereto necessary to maintain such properties in working order;
(f) Liens granted by any Acquisition Target prior to the acquisition by the Company or any Subsidiary of any interest in such Acquisition Target or its assets, so long as (i) such Lien was
granted by the Acquisition Target prior to such acquisition and not in contemplation thereof, and (ii) no such Lien extends to any assets of the Company or any Subsidiary other than the assets of the Acquisition Target and improvements and
modifications thereto necessary to maintain such properties in working order or, in the case of an asset transfer, the assets so acquired by the Company or the applicable Subsidiary and improvements and modifications thereto;
(g) Liens (other than of the type described in Section 6.1(e)) securing any indebtedness for borrowed money in existence on the Effective Date and listed in Schedule 6.1;
(h) Liens securing any refinancing of indebtedness secured by the Liens described in Sections 6.1(e) and (f), so long as the amount of such indebtedness secured by any such
Lien does not exceed the amount of such refinanced indebtedness immediately prior to the refinancing and such Liens do not extend to assets other than those encumbered prior to such refinancing and improvements and modifications thereto;
(i) Liens granted by any Subsidiary in favor of the Company or any wholly-owned Subsidiary;
(j) Liens on patents, patent applications, trademarks, trademark applications, trade names, copyrights, technology and know-how to the extent such Liens arise from the granting (i) of
exclusive licenses with respect to the foregoing if such licenses relate to either (A) intellectual property which is immaterial and not necessary for the on-going conduct of the businesses of the Company and its Subsidiaries or (B) uses that
would not materially restrict the conduct of the on-going businesses of the Company and its Subsidiaries and (ii) of non-exclusive licenses to use any of the foregoing to any Person, in any case in the ordinary course of business of the Company
or any of its Subsidiaries;
(k) possessory Liens in favor of lessors or sublessors of properties leased or subleased by the Company or any of its Subsidiaries to such Persons;
(l) (i) Liens created on assets transferred to an SPV pursuant to Asset Securitizations (which assets shall be of the types described in the definition of Asset Securitization), securing
Attributable Securitization Indebtedness permitted to be outstanding pursuant to Section 6.2; and (ii) Liens created on assets transferred pursuant to a factoring arrangement with a third party not an Affiliate of the Company, to the
extent such factoring arrangement is permitted pursuant to Section 6.2;
(m) Liens that are contractual rights of set-off or similar rights (i) relating to the establishment of depository relations with banks and other financial
institutions not given in connection with the issuance of indebtedness, (ii) relating to pooled deposits, sweep accounts, reserve accounts or similar accounts of the Company or any Subsidiary to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of the Company or any Subsidiary, including with respect to credit card charge-backs and similar obligations, or (iii) relating to purchase orders and other agreements (including
conditional sale, title retention, consignment, bailment or similar arrangements) entered into with customers, suppliers or service providers of the Company or any Subsidiary in the ordinary course of business;
(n) Liens (i) arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, (ii)
attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage
accounts incurred in the ordinary course of business and not for speculative purposes, (iv) in respect of funds received by the Company or any Subsidiary as agent on behalf of third parties in accordance with a written agreement that imposes a
duty upon the Company or one or more Subsidiaries to collect and remit those funds to such third parties, or (v) in favor of credit card companies pursuant to agreements therewith; and
(o) Liens not otherwise described in this Section 6.1, so long as the aggregate amount of indebtedness secured by all such Liens does not at any time exceed 10% of Adjusted Net
Worth.
Section 6.2 Sale of Assets.
The Company will not, and will not permit any Subsidiary to, sell, lease, assign, transfer or otherwise dispose of (each, a “Transfer”) all or a Material Part of the Assets of the Company and its Subsidiaries
(whether in one transaction or in a series of transactions) to any other Person, other than: (a) in the ordinary course of business; (b) any transfer of an interest in accounts or notes receivable pursuant to either (i) an Asset Securitization,
or (ii) a factoring arrangement with a third party not an Affiliate of the Company; provided that (A) at least 80% of the proceeds of transfers pursuant to such factoring arrangement are paid in cash and (B) the Company and its
Subsidiaries do not retain a residual liability therefor in excess of 10% of the amount of such factoring arrangement; provided, further, that the aggregate amount of (1) all Attributable Securitization Indebtedness with respect
to transfers under clause (b)(i) of this Section 6.2 and (2) the amount of related indebtedness which would be outstanding if all factoring arrangements described in clause (b)(ii) of this Section 6.2 were treated
as a secured lending arrangement shall not at any time exceed $175,000,000; and (c) dispositions of property no longer used or useful in the business of the Company or any Subsidiary; provided that a wholly-owned Subsidiary of the Company
may sell, lease, or transfer all or a substantial part of its assets to the Company or another wholly-owned Subsidiary of the Company, and the Company or such other wholly-owned Subsidiary, as the case may be, may acquire all or substantially all
of the assets of the Subsidiary so to be sold, leased or transferred to it, and any such sale, lease or transfer shall not be included in determining if the Company and/or its Subsidiaries disposed of a Material Part of the Assets. For purposes
hereof, “Material Part of the Assets” means assets (x) which, together with all other assets (in each case valued at net book value) previously Transferred during the twelve-month period then ending (other than pursuant to clauses (a)
through (c) above), exceed 10% of Consolidated Total Assets determined as of the end of the immediately preceding fiscal year, or (y) which, together with all other assets (in each case valued at net book value) previously Transferred
(other than pursuant to clauses (a) through (c) above) during the period from the Effective Date to and including the date of the Transfer of such assets exceed 30% of Consolidated Total Assets determined as of the end of the
immediately preceding fiscal year of the Company; provided that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months of the date of sale of such
assets to either (I) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Subsidiaries as described in Section 6.5 and having a fair market value (as determined in good faith by
the Company) at least equal to that of the assets so disposed of or (II) the prepayment on a pro rata basis of Total Funded Debt of the Company determined, in the case of any Total Funded Debt of the Company denominated in a currency other than
Dollars, on the basis of the exchange rate published in The Wall Street Journal on the second Business Day before the date of the applicable notice of prepayment.
Section 6.3 Consolidation and Merger.
The Company will not consolidate with or merge into any Person, or permit any other Person to merge into it, or acquire (in a transaction analogous in purpose or effect to a consolidation or merger) all or
substantially all of the assets of any other Person; provided that the restrictions contained in this Section 6.3 shall not apply to or prevent the consolidation or merger of (a) any Person with, or a conveyance or transfer of its
assets to, the Company so long as (i) no Default or Event of Default exists at the time of, or will be caused by, such consolidation, merger, conveyance or transfer, and (ii) the Company shall be the continuing or surviving corporation, (b) a
wholly-owned Subsidiary with the Company, so long as the Company is the legally surviving entity, or (c) a wholly-owned Subsidiary with another wholly-owned Subsidiary.
Section 6.4 Hazardous Substances.
The Company will not, and will not permit any Subsidiary to, cause or permit any Hazardous Substance to be disposed of in any manner, or on, under or at any real property which is operated by the Company or any
Subsidiary or in which the Company or any Subsidiary has any interest, if such disposition could reasonably be expected to result in a Material Adverse Change.
Section 6.5 Restrictions on Nature of Business.
The Company and its Subsidiaries will not engage in any business materially different from those businesses in which they are engaged on the Effective Date.
Section 6.6 Transactions with Affiliates.
The Company will not, and will not permit any Subsidiary to, enter into directly or indirectly any transaction or group of related transactions (including the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except (a) in the ordinary course and pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair
and reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate and (b) any transaction with any Affiliate for which the total aggregate
consideration or payments in respect of such transaction do not exceed $500,000.
Section 6.7 Restrictive Agreements.
The Company will not, and will not permit any Subsidiary to, enter into any agreement (excluding this Agreement) limiting the ability of any Subsidiary to make any payments directly or indirectly to the Company, by
way of dividends, advances, repayments of loans or advances, reimbursements of management and any other intercompany charges, expenses and accruals or other returns on investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or indirectly, to the Company.
Section 6.8 Leverage Ratio.
The Company will not permit the Leverage Ratio, determined as of the last day of each fiscal quarter of the Company, to be greater than 3.50 to 1.00;
provided that if a Material
Acquisition is consummated within such fiscal quarter (any such fiscal quarter designated as such by the Company in writing to the Administrative Agent being a “
Trigg
er Quarter”), then the Leverage Ratio may be greater than 3.50 to
1.00 but shall not exceed 4.00 to 1.00 for such Trigger Quarter and the next succeeding three fiscal quarters of the Company (each such four quarter period, a “
Leverag
e Holiday”);
provided,
further, that (a)
following a Leverage Holiday, no subsequent Trigger Quarter shall be deemed to have occurred or to exist for any reason unless and until the Leverage Ratio has returned to less than or equal to 3.50 to 1.00 as of the last day of at least one full
fiscal quarter of the Company following the preceding Trigger Quarter, (b) the Leverage Ratio shall return to less than or equal to 3.50 to 1.00 no later than the end of the fourth fiscal quarter next following the initial Trigger Quarter and (c)
there shall be no more than two (2) Leverage Holidays during the term of this Agreement.
Section 6.9 Interest Coverage Ratio.
The Company will not permit the Interest Coverage Ratio, determined as at the last day of each fiscal quarter of the Company, to be less than 3.00 to 1.00.
Section 6.13 Priority Debt.
The Company will not, and will not permit any Subsidiary to, create, issue, assume, guarantee or otherwise incur or in any manner become liable in respect of any Priority Debt, unless at the time of creation,
issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, (a) the aggregate amount of Total Funded Debt of the Company and its Subsidiaries secured by any Lien created or
incurred within the limitations of Section 6.1(o) would not exceed 10% of Adjusted Net Worth and (b) the aggregate amount of all Consolidated Priority Debt would not exceed 20% of Adjusted Net Worth.
ARTICLE VII
EVENTS OF DEFAULT, RIGHTS AND REMEDIES
Section 7.1 Events of Default.
“Event of Default” means any one of the following events:
(a) default in the payment of any principal of any Advance when it becomes due and payable; or default in the payment of any other Obligations when the same become due and payable and the
continuance of such default for five Business Days; or
(b) default in the performance, or breach, of (i) any covenant or agreement on the part of the Company contained in any of Sections 5.1(f), 5.3(b), 5.7 (as to the
corporate existence of the Company), 5.8, 6.1 through 6.3, or 6.6 through 6.13, inclusive, or (ii) any covenant incorporated herein pursuant to Section 5.9 (after giving effect to any grace or cure
provisions under such Existing Facility Additional Provision(s) or such New Facility Additional Provision(s) or event of default so incorporated); or
(c) default in the performance, or breach, of any covenant or agreement of the Borrowers in this Agreement or any other Loan Document (excluding any covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with), and the continuance of such default or breach for a period of 30 days after the Administrative Agent, at the request of any Lender, has given notice to the Company
specifying such default or breach and requiring it to be remedied; or
(d) any representation or warranty made by any Borrower in this Agreement or any other Loan Document or by any Borrower (or any of its officers) in any certificate, instrument, or statement
contemplated by or made or delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect in any material respect when made; or
(e) any Loan Document or any material provision thereof shall for any reason cease to be valid and binding on any Borrower party thereto or any Borrower shall assert that any Loan Documents
are not enforceable in accordance with their terms; or
(f) a default in the payment when due (after giving effect to any applicable grace periods) of principal or interest with respect to any item of Total Funded Debt of the Company or any of
its Subsidiaries (other than any Obligations) if the aggregate amount of all such items of Total Funded Debt as to which such payment defaults exist is not less than $25,000,000; or
(g) a default (other than a default described in Section 7.1(f)) under any agreement relating to any item of Total Funded Debt of the Company or any Subsidiary (other than under
any of the Loan Documents) or under any indenture or other instrument under which any such agreement has been issued or by which it is governed and the expiration of the applicable period of grace, if any, specified in such agreement if the
effect of such default is to cause or to permit the holder of such item of Total Funded Debt (or trustee or agent on behalf of such holder) to cause such item of Total Funded Debt to come due prior to its stated maturity (or to cause or to permit
the counterparty in respect of a Swap Contract to elect an early termination date in respect of such Swap Contract); provided that no Event of Default shall be deemed to have occurred under this paragraph if the aggregate amount owing as
to all such items of Total Funded Debt as to which such defaults have occurred and are continuing is less than $25,000,000; provided, further, that if such default shall be cured by the Company or such Subsidiary, or waived by the
holders of such items of Total Funded Debt or counterparties in respect of such Swap Contracts, in each case prior to the commencement of any action under Section 7.2 and as may be permitted by such evidence of indebtedness, indenture,
other instrument, or Swap Contract, then the Event of Default hereunder by reason of such default shall be deemed likewise to have been thereupon cured or waived; or
(h) the Company or any Material Subsidiary shall be adjudicated a bankrupt or insolvent, or admit in writing its inability to pay its debts as they mature, or make an assignment for the
benefit of creditors; or the Company or any Material Subsidiary shall apply for or consent to the appointment of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or
similar officer shall be appointed without the application or consent of the Company or such Material Subsidiary, and such appointment shall continue undischarged for a period of 60 days; or the Company or any Material Subsidiary shall institute
(by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such
proceeding shall be instituted (by petition, application or otherwise) against the Company or any Material Subsidiary and shall continue undischarged for 60 days; or any judgment, writ, warrant of attachment or execution or similar process shall
be issued or levied against a substantial part of the property of the Company or any Material Subsidiary and such judgment, writ, or similar process shall not be released, vacated, stayed or fully bonded within 60 days after its issue or levy; or
(i) a petition shall be filed by the Company or any Material Subsidiary under the United States Bankruptcy Code naming the Company or that Material Subsidiary as debtor; or an involuntary
petition shall be filed against the Company or any Material Subsidiary under the United States Bankruptcy Code, and such petition shall not have been dismissed within 60 days after such filing; or an order for relief shall be entered in any case
under the United States Bankruptcy Code naming the Company or any Material Subsidiary as debtor; or
(j) a Change of Control shall occur with respect to the Company; or
(k) the rendering against the Company or any Subsidiary of a final judgment, decree or order for the payment of money if the amount of such judgment, decree or order, together with the
amount of all other such judgments, decrees and orders then outstanding, less (in each case) the portion thereof covered by insurance proceeds, is greater than $10,000,000 and if such judgment, decree or order remains unsatisfied and in effect
for any period of 30 consecutive days without a stay of execution; or
(l) any Plan shall have been terminated as a result of which the Company or any Subsidiary or ERISA Affiliate has incurred an unfunded liability in excess of $20,000,000 or resulted in the
imposition of a Lien; or the Pension Benefit Guaranty Corporation shall have instituted proceedings under Section 4042 of ERISA to terminate any Plan or to appoint a trustee to administer any Plan and in either case such action could reasonably
be expected to result in liability to the Company or any Subsidiary in excess of $20,000,000 or in the imposition of a Lien, or the Company or any Subsidiary or ERISA Affiliate shall have incurred withdrawal liability in excess of $20,000,000 in
respect of any Multiemployer Plan; or the Company or any Subsidiary shall have incurred any liability under Title IV of ERISA, in excess of $20,000,000 with respect to any Plan (other than premiums due and not delinquent under Section 4007 of
ERISA) or resulting in the imposition of a Lien; or any Reportable Event which could reasonably be expected to result in liability to Company or any Subsidiary or ERISA Affiliate in excess of $20,000,000 or result in the imposition of a Lien,
shall have occurred and be continuing 30 days after Company becomes aware of its occurrence; provided that no Event of Default shall be deemed to have occurred under this paragraph unless such event or events describe in this paragraph
(either individually or together) with any other such event or events, could reasonably be expected to result in either a Material Adverse Change or in the imposition of a Lien; or
(m) any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Material Part of the Assets of the Company and its
Subsidiaries.
Section 7.2 Rights and Remedies.
Upon the occurrence of an Event of Default or at any time thereafter until such Event of Default is waived by the Required Lenders or cured, the Administrative Agent may, with the consent of the Required Lenders, and
shall, upon the request of the Required Lenders, exercise any or all of the following rights and remedies:
(a) The Administrative Agent may, by notice to the Company, declare the Term Loan Commitments to be terminated, whereupon the same shall forthwith terminate.
(b) The Administrative Agent may, by notice to the Company, declare the entire unpaid principal amount of the Obligations then outstanding, all interest accrued and unpaid thereon, and all
other amounts payable under this Agreement to be forthwith due and payable, whereupon the Obligations, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers.
(c) [Reserved].
(d) The Lenders may, without notice to the Borrowers and without further action, apply any and all money owing by any Lender to any Borrower to the payment of the Obligations then
outstanding, including interest accrued thereon, and of all other sums then owing by the Borrowers hereunder. For purposes of this paragraph (d), “Lender” means the Lenders, as defined elsewhere in this Agreement, and any participant in
the loans made hereunder; provided that each such participant, by exercising its rights under this paragraph (d), agrees that it shall be obligated under Section 8.4 with respect to such payment as if it were a Lender for
purposes of Section 8.4.
(e) [Reserved].
(f) The Administrative Agent and the Lenders may exercise any other rights and remedies available to them by law or agreement.
Notwithstanding the foregoing, upon the occurrence of an Event of Default described in Section 7.1(i) (whether or not such Event of Default also arises under Section 7.1(h)), the Term Loan Commitments shall automatically
terminate and the entire unpaid principal amount of the Obligations then outstanding, all interest accrued and unpaid thereon, and all other amounts payable under this Agreement shall automatically be immediately due and payable without
presentment, demand, protest or notice of any kind.
Section 7.4 Crediting of Payments and Proceeds.
In the event that the Obligations have been accelerated pursuant to Section 7.2 or the Administrative Agent or any Lender has exercised any remedy set forth in this Agreement or any other Loan Document, all
payments received by the Lenders upon the Obligations having been accelerated and all net proceeds from the enforcement of the Obligations shall be applied:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including attorney
fees (ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them);
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Advances (ratably among the Lenders in proportion to the respective amounts described in this clause
Third payable to them);
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Advances (ratably among the Lenders in proportion to the respective amounts described in this clause Fourth
held by them); and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by applicable law.
ARTICLE VIII
Section 8.1 Authorization.
Each Lender, the holder of each Note irrevocably appoints and authorizes the Administrative Agent to act on its behalf to the extent provided herein or in any document or instrument delivered hereunder or in
connection herewith, and to take such other action as may be reasonably incidental thereto.
Section 8.2 Distribution
of Payments and Proceeds.
(a) After deduction of any costs of collection as hereinafter provided, the Administrative Agent shall remit to each Lender that Lender’s Percentage of all payments of principal, interest and
unused commitment fees payable under Section 2.8 that are received by the Administrative Agent under the Loan Documents. Each Lender’s interest in the Loan Documents shall be payable solely from payments, collections and proceeds actually
received by the Administrative Agent under the Loan Documents; and the Administrative Agent’s only liability to the Lenders hereunder shall be to account for each Lender’s Percentage of such payments, collections and proceeds in accordance with
this Agreement. If the Administrative Agent is ever required for any reason to refund any such payments, collections or proceeds, each Lender will refund to the Administrative Agent, upon demand, its Percentage of such payments, collections or
proceeds, together with its Percentage of interest or penalties, if any, payable by the Administrative Agent in connection with such refund. The Administrative Agent may, in its sole discretion, make payment to the Lenders in anticipation of
receipt of payment from the Borrowers. If the Administrative Agent fails to receive any such anticipated payment from the Borrowers, each Lender shall promptly refund to the Administrative Agent, upon demand, any such payment made to it in
anticipation of payment from the Borrowers, together with interest for each day on such amount until so refunded at a rate equal to the Federal Funds Effective Rate for each such date.
(b) Notwithstanding the foregoing, if any Lender has wrongfully refused to fund its Percentage of any Borrowing or other Advance, or if the principal balance of any Lender’s Obligations is
for any other reason less than its Percentage of the aggregate principal balances of the Lenders’ Obligations then outstanding, the Administrative Agent may remit all payments received by it to the other Lenders until such payments have reduced
the aggregate amounts owed by the Borrowers to the extent that the aggregate amount owing to such Lender hereunder is equal to its Percentage of the aggregate amount owing to all of the Lenders hereunder. The provisions of this paragraph are
intended only to set forth certain rules for the application of payments, proceeds and collections in the event that a Lender has breached its obligations hereunder and shall not be deemed to excuse any Lender from such obligations.
All payments, collections and proceeds received or effected by the Administrative Agent may be applied, first, to pay or reimburse the Administrative Agent for all costs, expenses, damages and liabilities at
any time incurred by or imposed upon the Administrative Agent in connection with this Agreement or any other Loan Document (including but not limited to all reasonable attorney’s fees, foreclosure expenses and advances made to protect the
security of collateral, if any, but excluding any costs, expenses, damages or liabilities arising from the gross negligence or willful misconduct of the Administrative Agent). If the Administrative Agent does not receive payments, collections or
proceeds from the Borrowers or their properties sufficient to cover any such costs, expenses, damages or liabilities within 30 days after their incurrence or imposition, each Lender shall, upon demand, remit to the Administrative Agent its
Percentage of the difference between (a) such costs, expenses, damages and liabilities, and (b) such payments, collections and proceeds.
Section 8.4 Payments Received Directly by Lenders.
If any Lender or other holder of a Note shall obtain any payment or other recovery (whether voluntary, involuntary, by application of offset or otherwise) on account of principal of or interest on any Advance other
than through distributions made in accordance with Section 8.2, such Lender or holder shall promptly give notice of such fact to the Administrative Agent and shall purchase from the other Lenders or holders such participations in the
Obligations held by them as shall be necessary to cause the purchasing Lender or holder to share the excess payment or other recovery ratably with each of them; provided that if all or any portion of the excess payment or other recovery
is thereafter recovered from such purchasing Lender or holder, the purchase shall be rescinded and the purchasing Lender restored to the extent of such recovery (but without interest thereon). The provisions of this Section 8.4 shall not
be construed to apply to (a) any payment made pursuant to and in accordance with the express terms of this Agreement or (b) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loan
Advances to any assignee or participant, other than to the Company or any of its Subsidiaries (as to which the provisions of this Section 8.4 shall apply).
Section 8.5 Indemnification.
The Administrative Agent shall not be required to do any act hereunder or under any other document or instrument delivered hereunder or in connection herewith, or to prosecute or defend any suit in respect of this
Agreement or the Notes or any documents or instrument delivered hereunder or in connection herewith unless indemnified to its satisfaction by the holders of the Obligations against loss, cost, liability and expense (other than any such loss,
cost, liability or expense attributable to the Administrative Agent’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment). If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and not commence or cease to do the acts indemnified against
until such additional indemnity is furnished.
(a) The Administrative Agent shall be entitled to rely upon advice of counsel concerning legal matters, and upon this Agreement, any other Loan Document and any schedule, certificate,
statement, report, notice or other writing which it in good faith believes to be genuine or to have been presented by a proper person. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall (i) be
responsible for any recitals, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of this Agreement, any other Loan Document, or any other instrument or document delivered
hereunder or in connection herewith, (ii) be responsible for the validity, genuineness, perfection, effectiveness, enforceability, existence, value or enforcement of any collateral security, (iii) be under any duty to inquire into or pass upon
any of the foregoing matters or upon the satisfaction of any condition set forth in Section 3.1, 3.2 or 3.3 (other than to confirm receipt of items expressly required to be delivered to the Administrative Agent pursuant to
thereto), or to make any inquiry concerning the performance by the Borrowers or any other obligor of its obligations (it being understood and agreed that the Administrative Agent shall not be deemed to have knowledge of any Material Adverse
Change, Default or Event of Default unless the Administrative Agent has received written notice thereof from the Company or any Lender, referring to this Agreement, describing such Material Adverse Change, Default or Event of Default), or (iv) in
any event, be liable as such for any action taken or omitted by it or them, except for its or their own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The
appointment of CoBank as Administrative Agent hereunder shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, CoBank in its individual capacity.
(b) The term “agent” is used herein in reference to the Administrative Agent merely as a matter of custom. It is intended to reflect only an administrative relationship between the
Administrative Agent and the other Lender Parties, in each case as independent contracting parties. However, the obligations of the Administrative Agent shall be limited to those expressly set forth herein. In no event shall the use of such term
create or imply any fiduciary relationship or any other obligation arising under the general law of agency, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent. The Administrative Agent shall not (i) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein
or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or termination of property of a Defaulting Lender
in violation of any Debtor Relief Law, and (ii) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any
of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(c) The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective related parties.
The exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the related parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the
syndication of the term loan facility hereunder as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent
jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 8.7 Administrative Agent and Affiliates.
The Administrative Agent shall have the same rights and powers hereunder in its individual capacity as any other Lender, and may exercise or refrain from exercising the same as though it were not the Administrative
Agent, and the Administrative Agent and its Affiliates may accept deposits from and generally engage in any kind of business with the Borrowers as fully as if the Administrative Agent were not the Administrative Agent hereunder.
Section 8.8 Credit Investigation.
Each Lender acknowledges that it has made its own independent credit decision and investigation and taken such care on its own behalf as would have been the case had its Term Loan Commitment been granted and the
Advances made directly by such Lender to the Borrowers without the intervention of the Administrative Agent or any other Lender. Each Lender agrees and acknowledges that the Administrative Agent makes no representations or warranties about the
creditworthiness of the Company or any other Borrower or other party to this Agreement or with respect to the legality, validity, sufficiency or enforceability of this Agreement, any Loan Document, or any other instrument or document delivered
hereunder or in connection herewith. Each Lender represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility and (b) it is engaged in making, acquiring or holding commercial loans in the ordinary
course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other
type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire or hold commercial loans, as may
be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire or hold such commercial loans, is experienced in making, acquiring or holding such commercial loans.
The Administrative Agent may resign as such at any time upon at least 30 days’ prior notice to the Company and the Lenders. In the event of any resignation of the Administrative Agent, the Required Lenders shall as
promptly as practicable appoint a Lender as a successor Administrative Agent; provided that so long as no Default or Event of Default has occurred and is continuing at such time, no such successor Administrative Agent may be appointed
without the prior written consent of the Company. If no such successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the resigning Administrative Agent’s
giving of notice of resignation, then the resigning Administrative Agent may, on behalf of the Lenders, appoint a Lender as a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States or of any
State thereof. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon be entitled to receive from the prior Administrative Agent such
documents of transfer and assignment as such successor Administrative Agent may reasonably request and the resigning Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any resignation pursuant to
this Section, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments owed to the retiring Administrative Agent, all
payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to such successor Administrative Agent as provided for above in this Section 8.9. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article VIII and Sections 9.5 and 9.6 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Section 8.10 Disclosure of Information.
The Lender Parties shall keep confidential (and cause their respective officers, directors, employees, agents and representatives to keep confidential) all information, materials and documents furnished by the Company and its Subsidiaries to
the Administrative Agent or the Lenders (the “Disclosed Information”). Notwithstanding the foregoing, the Administrative Agent and each Lender may disclose Disclosed Information: (a) to the Administrative Agent or any other Lender; (b) to
any Affiliate of any Lender in connection with the transactions contemplated hereby; provided that such Affiliate has been informed of the confidential nature of such information; (c) to legal counsel, accountants and other professional
advisors to the Administrative Agent or such Lender; (d) to any regulatory body having jurisdiction over any Lender or the Administrative Agent (including in connection with a pledge or assignment permitted by Section 9.8(f)); (e) to the
extent required by applicable laws and regulations or by any subpoena or similar legal process, or requested by any governmental agency or authority; (f) to the extent such Disclosed Information (i) becomes publicly available other than as a
result of a breach of this Agreement, (ii) becomes available to the Administrative Agent or such Lender on a non-confidential basis from a source other than the Company or a Subsidiary, or (iii) was available to the Administrative Agent or such
Lender on a non-confidential basis prior to its disclosure to the Administrative Agent or such Lender by the Company or a Subsidiary; (g) to the extent the Company or such Subsidiary shall have consented to such disclosure in writing; (h) to the
extent reasonably deemed necessary by the Administrative Agent or any Lender in the enforcement of the remedies of the Lender Parties provided under the Loan Documents; (i) in connection with any potential assignment or participation in the
interest granted hereunder; provided that any such potential assignee or participant shall have executed a confidentiality agreement imposing on such potential assignee or participant substantially the same obligations as are imposed on
the Lender Parties under this Section 8.10; (j) for the purpose of establishing a “due diligence” defense; (k) on a confidential basis to (i) any rating agency in connection with rating Company or its Subsidiaries or the credit facility
established pursuant hereto or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facility established pursuant hereto; and (l) consisting of deal terms
(other than fees) and other information customarily reported to Thomson Reuters, other bank market data collectors and similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in
connection with the administration of the Loan Documents. Nothing in any Loan Document shall prevent disclosure of any confidential information or other matter to the extent that preventing that disclosure would otherwise cause any transaction
contemplated by the Loan Documents, or any transaction carried out in connection with any transaction contemplated thereby, to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
The Persons identified on the title page as “Joint Book Runners” or “Joint Lead Arrangers” shall have no right, power, obligation or liability under this Agreement or any other Loan Document on account of such identification other than those
applicable to such Persons in their capacity (if any) as Lenders or Administrative Agent. Each Lender acknowledges that it has not relied, and will not rely, on any Person so identified in deciding to enter into this Agreement or in taking or
omitting any action hereunder.
Section 8.12 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the
date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of any Borrower, that at least one of the following is and will be true: (i) such Lender
is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Term Loan
Commitments or this Agreement; (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class
exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, the Term Loan Commitments and this Agreement; (iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Advances, the Term Loan Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Advances, the Term Loan Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of
subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Term Loan Commitments and this Agreement; or (iv) such other representation,
warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another
representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and
(y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of any
Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Advances, the Term Loan Commitments and this
Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document or any documents related hereto or thereto).
Section 8.13 Erroneous Payments.
(a) If the Administrative Agent (x) notifies a Lender or Lender Party, or any Person who has received funds on behalf of a Lender or Lender Party (any such Lender, Lender Party or other
recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding subsection (b)) that any funds (as set forth in such
notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment
Recipient (whether or not known to such Lender, Lender Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise,
individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent
pending its return or repayment as contemplated below in this Section 8.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Lender Party shall (or, with respect to any Payment Recipient who received such
funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the
Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the
Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment
Recipient under this subsection (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding subsection (a), each Lender, Lender Party or any Person who has received funds on behalf of a Lender or Lender Party, agrees that if it
receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different
amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y)
that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Lender Party, or other such recipient, otherwise becomes aware was
transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written
confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Lender Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its
respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative
Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this subsection (b).
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this subsection (b) shall not have any effect on a Payment Recipient’s obligations
pursuant to subsection (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Lender Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Lender Party under any Loan
Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Lender Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the
Administrative Agent has demanded to be returned under immediately preceding subsection (a).
(d) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not
recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any
Payment Recipient who has received funds on behalf of a Lender or Lender Party, to the rights and interests of such Lender or Lender Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment
Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower; provided that this Section 8.13 shall not be interpreted to increase (or accelerate
the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of any Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment
not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the
amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), any Borrower for the purpose of making a payment on the
Obligations.
(e) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim,
counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge
for value” or any similar doctrine.
Each party’s obligations, agreements and waivers under this Section 8.13 shall survive the resignation or replacement of the Administrative Agent, the termination of the Term Loan Commitments and/or the repayment, satisfaction or
discharge of all Obligations (or any portion thereof) under any Loan Document.
Section 8.14 No Reliance on the Administrative Agent’s Customer Identification Program.
Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer
identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, Anti-Corruption Law or Sanctions, including any programs involving any of the following items relating to or in connection with any of the Borrowers, their Affiliates or their agents, the Loan
Documents or the transactions hereunder or contemplated hereby: (a) any identity verification procedures, (b) any recordkeeping, (c) comparisons with government lists, (d) customer notices or (e) other procedures required under the CIP
Regulations or such other laws.
Section 8.15 Filing Proofs of Claim.
In case of the pendency of any proceedings under any Debtor Relief Law or any other judicial proceeding relating to any Borrower, the Administrative Agent (irrespective of whether the principal of any Advance shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand therefor) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the owing and unpaid principal and interest in respect to the Obligations and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.8, 2.13, 2.18, 9.5 and 9.6) allowed in such proceeding;
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and
(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.8, 2.13, 2.18, 9.5 and 9.6.
ARTICLE IX
Section 9.1 No Waiver; Cumulative Remedies.
No failure, delay or course of dealing on the part of the Lenders in exercising any right, power or remedy under the Loan Documents shall operate as a waiver thereof; nor shall any Lender’s acceptance of payments while any Default or Event of
Default is outstanding operate as a waiver of such Default or Event of Default, or any right, power or remedy under the Loan Documents; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under the Loan Documents. The remedies provided in the Loan Documents are cumulative and not exclusive of any remedies provided by law. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent for the benefit of the Lender Parties; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section
7.2 (subject to the terms of Section 2.10), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Borrower in any Insolvency
Proceedings.
Section 9.2 Designation of Designated Subsidiaries.
At any time and from time to time, the Company may designate any Eligible Subsidiary as a “Designated Subsidiary” by delivering to the Administrative Agent a Designation Letter, duly executed by the Company and such Eligible Subsidiary. Upon
receipt of such Designation Letter by the Administrative Agent, and approval of the Administrative Agent if required to confirm that the applicable Subsidiary is an Eligible Subsidiary, such Eligible Subsidiary shall thereupon become a
“Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of each such designation by the Company and the
identity of such Eligible Subsidiary. The Company’s designation of an Eligible Subsidiary as such shall be irrevocable, and no Subsidiary shall cease to be a Designated Subsidiary without the prior written consent of the Required Lenders (and, in
any event, no Eligible Subsidiary shall cease to be a Designated Subsidiary unless all of its non-contingent Obligations have been paid in full). Upon request of any Lender, each Designated Subsidiary shall execute any Term Loan Note delivered
hereunder, but the failure of the Borrowers other than the Company to execute such Term Loan Note shall not diminish the liability of any Borrower with respect to the indebtedness evidenced thereby.
Section 9.3 Amendments, Etc.
No amendment or waiver of any provision of any Loan Document or consent to any departure by the Borrowers therefrom shall be effective unless the same shall be in writing and signed by the Required Lenders (or by the Administrative Agent with
the consent or at the request of the Required Lenders), and any such waiver shall be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing:
(a) No such amendment or waiver shall be effective to do any of the following unless signed by each of the Lenders (or by the Administrative Agent with the consent or at the request of each
of the Lenders):
(i) increase the Term Loan Commitment of any Lender or extend the Term Loan Commitment Termination Date or the Maturity Date (it being understood and agreed that a waiver of any condition
precedent set forth in Section 3.3 or of any Default, Event of Default, mandatory prepayment or a mandatory reduction in Term Loan Commitments is not considered an extension or increase in Term Loan Commitments of any Lender);
(ii) permit any Borrower to assign its rights under this Agreement;
(iii) amend this Section 9.3, the definition of “Required Lenders”, or any provision herein providing for consent or other action by all Lenders (including the requirements in the
definition of “Eligible Subsidiary” that specified matters be acceptable to or approved by all Lenders);
(iv) forgive any indebtedness of any Borrower arising under this Agreement or evidenced by the Notes, or reduce the rate of interest or any fees charged under this Agreement or the Notes; provided
that only the consent of the Required Lenders shall be necessary to (A) waive any obligation of the Borrowers to pay interest at the rate specified in Section 2.6 and (B) amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce the rate of interest or any fees charged under this Agreement or the Notes;
(v) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, unused commitment fees or other material amounts due to any Lender
Party hereunder or under any other Loan Document (excluding mandatory prepayments of principal, interest, unused commitment fees or other material amounts due to any Lender Party);
(vi) amend Section 2.10, 2.11(a), 7.4 or 8.2(a) in a manner that would alter the pro rata sharing required thereby;
(vii) release the Company or any other Borrower from its obligations under the Guaranty; or
(viii) subordinate the Obligations in right of payment to any other indebtedness or other obligations.
(b) No amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document unless in writing and signed by the
Administrative Agent.
(c) No amendment, modification or (except as provided elsewhere herein) termination of this Agreement or waiver of any rights of any Borrower or obligations of any Lender or the
Administrative Agent hereunder shall be effective unless that Borrower shall have consented thereto in writing, other than assignments by Lenders that do not require the consent of the Company under Section 9.8(b)(iii) and resignation of
the Administrative Agent in accordance with Section 8.9.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any consent right hereunder or any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Term Loan Commitment of such Lender may not be increased nor may its Term Loan Commitment (or the maturity of its Advances) be extended, nor may the principal of its Advances or amount or interest on its outstanding
Advances be reduced, without the consent of such Lender.
(e) Notwithstanding anything in this Agreement to the contrary: (i) [reserved]; (ii) no amendment or amendment and restatement of this Agreement shall require the consent of any Lender (A)
which, immediately after giving effect to such amendment or amendment and restatement, shall have no Term Loan Commitment and (B) which, substantially contemporaneously with the effectiveness of such amendment or amendment and restatement, is
paid in full all amounts owing to it hereunder; (iii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing signed only by the parties to the Fee Letter; (iv) [reserved]; (v) [reserved]; (vi)(A) the Administrative
Agent (and, if applicable, the Company) may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Loan Documents or to enter into additional Loan Documents in order to implement any
Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of Section 2.18(k) in accordance with the terms of Section 2.18(k); and (B) in connection with the use or administration of any Benchmark, the
Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or any other Loan Document; provided that the Administrative Agent will promptly notify the Company and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of any Benchmark; (vii) each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and
without further consent, to enter into amendments or modifications to this Agreement or any of the other Loan Documents in accordance with Section 5.9; and (viii) the Administrative Agent and the Company shall be permitted to amend any
provision of the Loan Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Document) if the Administrative Agent and the Company shall have jointly identified an obvious error
or any error, ambiguity, defect or inconsistency or omission of a technical or immaterial nature in any such provision.
(a) Generally. Except as otherwise expressly provided herein, all notices and other communications hereunder shall be in writing and shall be (i) personally delivered, (ii)
transmitted by registered mail, postage prepaid, (iii) sent by Federal Express or similar expedited delivery service, or (iv) transmitted by facsimile, in each case addressed or transmitted by facsimile to the party to whom notice is being given
at its address or facsimile number (as the case may be) as set forth in Schedule 9.4; or, in the case of any Lender, in such Lender’s Administrative Questionnaire; or, as to each party, at such other address or facsimile number as may
hereafter be designated in a notice by that party to the other party complying with the terms of this Section. All such notices or other communications shall be deemed to have been given on (A) the date received if delivered personally, (B) five
Business Days after the date of posting, if delivered by mail, (C) the date of receipt, if delivered by Federal Express or similar expedited delivery service, or (D) the date of transmission if delivered by facsimile, except that notices or
requests to the Lenders pursuant to any of the provisions of Article II shall not be effective as to any Lender until received by that Lender. Notice given by any Lender Party to the Company at the address and/or facsimile number
determined as set forth in this Section shall be deemed sufficient as to all Borrowers, regardless of whether the other Borrowers are sent separate copies of such notice or even specifically identified in such notice. The Company shall be deemed
to be authorized to provide any communication hereunder (including but not limited to requests for Advances and requests regarding interest rates under Section 2.3) on behalf of any Borrower.
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that
it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes: (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided
that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient; and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address therefor.
(c) Use of Platform to Distribute Communications. The Administrative Agent may make any material delivered by any Borrower to the Administrative Agent, as well as any amendments,
waivers, consents, and other written information, documents, instruments and other materials relating to the Company or any of its Subsidiaries, or any other materials or matters relating to any Loan Documents, or any of the transactions
contemplated hereby or thereby (collectively, the “Communications”) available to the Lender Parties by posting such notices on the Platform. The Borrowers acknowledge that (i) the distribution of material through an electronic medium is
not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants
the accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications posted on the Platform. The Administrative Agent and its Affiliates expressly disclaim with respect to the Platform any liability for errors in transmission,
incorrect or incomplete downloading, delays in posting or delivery, or problems accessing the Communications posted on the Platform and any liability for any damages of any kind, including direct or indirect, special, incidental or consequential
damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of Communications through the Platform. No warranty of any kind, express, implied or statutory,
including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the
Communications or the Platform.
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.4. NOTHING IN THIS AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e) Any party hereto may change its address, facsimile number or e-mail address, if applicable, for notices and other communications hereunder by written
notice to the other parties hereto.
Section 9.5 Costs and Expenses.
The Company agrees to pay on demand (a) reasonable and documented out-of-pocket costs and expenses (including reasonable and documented fees, charges and disbursements of one counsel for the Administrative Agent and, if reasonably necessary, a
single local counsel in each relevant jurisdiction) incurred by the Administrative Agent in connection with the negotiation, preparation, execution, administration or amendment of the Loan Documents and the other instruments and documents to be
delivered hereunder and thereunder, and (b) all out-of-pocket costs and expenses (including fees, charges and disbursements of one counsel for the Administrative Agent and the Lenders and, if reasonably necessary, a single local counsel in each
relevant jurisdiction (except to the extent that any such person or such counsel determines that separate counsel is necessary to avoid a conflict of interest and, if reasonably necessary, a single local counsel in each relevant jurisdiction for
such parties)) incurred by the Administrative Agent or any Lender in connection with the workout or enforcement of the Loan Documents and the other instruments and documents to be delivered hereunder and thereunder. The Company also agrees to pay
and reimburse the Administrative Agent for all of its out-of-pocket and allocated costs incurred in connection with each audit or examination conducted by the Administrative Agent, its employees or agents, which audits and examinations shall be
for the sole benefit of the Lender Parties. Each party’s obligations under this Section 9.5 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the
Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 9.6 Indemnification by Borrowers.
(a) Each Borrower hereby agrees to indemnify each Lender Party and each affiliate, partner, director, officer, agent and advisor thereof (herein individually each called an “Indemnitee”
and collectively called the “Indemnitees”) from and against any and all losses, claims, damages, costs and expenses (including, without limitation, the expenses of investigation and the reasonable,
documented and invoiced fees, charges and disbursements of one counsel and, if reasonably necessary, a single local counsel in each relevant jurisdiction (except to the extent that any indemnified person or such counsel determines that separate
counsel is necessary to avoid a conflict of interest and, if reasonably necessary, a single local counsel in each relevant jurisdiction for all such persons)) and liabilities (all of the foregoing being herein called the “Indemnified
Liabilities”) incurred by an Indemnitee (a) in connection with or arising out of the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the use of the proceeds of any Advance hereunder or (b) in connection with or arising out of any actual or alleged presence or release of Hazardous Substances on or from any property owned or operated by the Company or
any Subsidiary or any claim that any Environmental Law has been breached with respect to any activity or property of the Company or any Subsidiary; provided, however, that no Indemnitee will have any right to indemnification hereunder for any
losses, claims, damages, expenses or liabilities to the extent resulting from (i) gross negligence or willful misconduct of such Indemnitee and/or (ii) any breach in bad faith of such Indemnitee’s obligations under the Loan Documents, in each
case as determined by a court of competent jurisdiction by final and non-appealable judgment. If and to the extent that the foregoing indemnity may be unenforceable for any reason, each Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All obligations provided for in this Section 9.6(a) shall survive any termination of this Agreement. This Section 9.6(a)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(b) To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under Section 9.5 or Section 9.6(a) to be paid by it to the Administrative
Agent (or any sub-agent thereof), each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought based on each Lender’s Percentage at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender).
(c) Each party’s obligations under this Section 9.6 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 9.7 Execution in Counterparts.
This Agreement and the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this
Agreement or such other Loan Document.
Section 9.8 Binding Effect, Assignment and
Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.8(b), (ii) by way of participation in accordance with the provisions of Section 9.8(d) or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of Section 9.8(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 9.8(d) and, to the extent expressly contemplated hereby,
Indemnitees and Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Term Loan Commitment and the Advances at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) In the case of an assignment of the entire remaining amount of the assigning Lender’s Term Loan Commitment and the Advances at the time owing to it or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.
(B) In any case not described in Section 9.8(b)(i)(A), the aggregate amount of the Term Loan Commitment (which for this purpose includes Advances outstanding thereunder) or, if the Term Loan
Commitments are not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the “Trade Date”) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Company shall be deemed to have given its consent five (5) Business Days after the date written notice thereof
has been delivered by the assigning Lender (through the Administrative Agent) unless such consent is expressly refused by the Company prior to such fifth (5th) Business Day.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Advances or the Term Loan Commitment assigned (it being understood that assignments may be made non-ratably).
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 9.8(b)(i)(B) and, in addition:
(A) the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2)
such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of
such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 for each assignment and the assignee (provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment), if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. On or prior to the effective date of each assignment, the assigning Lender shall surrender any outstanding Notes held by it all or a portion of which are being assigned.
Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Company marked “cancelled”. No such surrender or cancellation shall reduce, affect or impair the obligation of the Borrowers assigned to the
assignee nor limit the Borrowers’ obligation to provide a new Note or Notes to the assignee pursuant to Section 2.1.
(v) No Assignment to Certain Persons. No such assignment shall be made to (A) the Company or any of the Company’s Affiliates or Subsidiaries, or (B) any Defaulting Lender or
any of its subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this Section 9.8(b)(v) or Section 9.8(b)(vi).
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for
the primary benefit of, a natural Person).
(vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Advances
previously requested, but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the
Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Percentage. Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 9.8(c), from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (other than obligations under Sections 2.17(e) and (h)) (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.16,
2.17, 2.18, 9.5 and 9.6 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected
parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 9.8(d).
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at one of its offices in Greenwood Village, Colorado or such other
office as may be determined by the Administrative Agent, a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Term Loan Commitment of, and principal amounts
(and stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Company, the Administrative Agent
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Lender (but only to the extent of entries in the Register that are applicable to such Lender), at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may on any Business Day, without the consent of, or notice to, the Borrowers or the Administrative Agent, in accordance with applicable law, sell
participations to any Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned or operated for the primary benefit of, a natural Person), the Company or any of the Company’s Affiliates or Subsidiaries,
or any Defaulting Lender or any of its subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Term Loan Commitment and/or the Advances
owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the
Company, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be
responsible for the indemnity under Section 9.6(b) with respect to any payments made by such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver or
modification described in Section 9.3 that directly affects such Participant and could not be affected by a vote of the Required Lenders. Subject to Section 9.8(e), the Borrowers agree that each Participant shall be entitled to
the benefits of (and shall have the related obligations under) Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 9.8(b); provided
that such Participant agrees to be subject to the provisions of Section 2.18(g) as if it were an assignee under subsection (b) of this Section 9.8. Each Lender that sells a participation agrees, at the Borrowers’ request
and reasonable expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.18(g) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 9.15 as though it were a Lender; provided that such Participant agrees to be subject to Section 8.4 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under the Loan
Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered
form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register. CoBank reserves the right to assign or sell participations in all or part of its commitments or outstanding loans hereunder on a non-patronage basis.
Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $10,000,000 on or after the Effective Date, (ii)
has been designated as a voting Participant (a “Voting Participant”) in a notice (a “Voting Participant Notice”) sent by the relevant Lender (including any existing Voting Participant) to the Administrative Agent and (iii) receives,
prior to becoming a Voting Participant, the consent of the Administrative Agent (such Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a
Lender pursuant to an assignment in accordance with Section 9.8(b) and such consent is not required for an assignment to an existing Voting Participant), shall be entitled to vote as if such Voting Participant were a Lender on all matters
subject to a vote by Lenders, and the voting rights of the selling Lender (including any existing Voting Participant) shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to
each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 9.8 shall be a
Voting Participant without delivery of a Voting Participant Notice and without the prior written consent of the Administrative Agent. The selling Lender (including any existing Voting Participant) and the purchasing Voting Participant shall
notify the Administrative Agent within three (3) Business Days of any termination, reduction or increase of the amount of, such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting
Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant
that is not a Farm Credit Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 2.17 or 2.18 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such Participant (except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the
applicable participation), unless the sale of the participation to such Participant is made with the Company’s prior written consent. No Participant shall be entitled to the benefits of Section 2.17 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.17 as though it were a Lender (it being understood that the documentation required under Section 2.17(g)
shall be delivered to the participating Lender).
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank, and this Section 9.8(f) shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Section 9.9 Governing Law.
The Loan Documents shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 9.10 Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
Section 9.11 Consent to Jurisdiction.
Each party irrevocably (a) agrees that any suit, action or other legal proceeding arising out of or relating to this Agreement or any other Loan Document shall be brought in a court of record in New York County in the State of New York or in
the courts of the United States located in such State (provided that the foregoing shall not affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Borrower or its properties in the courts of any jurisdiction), (b) consents to the jurisdiction of each such court in any suit, action or proceeding, (c) waives any objection which it may have to the laying of
venue of any such suit, action or proceeding in any such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum, and (d) agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 9.12 Waiver of Jury Trial.
EACH OF THE BORROWERS AND THE LENDER PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT AND THE NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 9.13 Integration; Effectiveness; Electronic Execution.
(a) Integration; Effectiveness. This Agreement, the other Loan Documents (including the Fee Letter) and any other fee letter entered into in connection with this Agreement and the
other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. In the event of
any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof. Except as provided in Section 3.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.
(b) Electronic Execution. The words “execute,” “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Agreement, any other Loan Document or any
document, amendment, approval, consent, waiver, modification, information, notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each
party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature. For the avoidance of
doubt, the authorization under this Section 9.13(b) may include use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into .pdf), or an electronically signed paper
converted into another format, for transmission, delivery and/or retention. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format
unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided that without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept such Electronic Signature from any
party hereto, the Administrative Agent and the other parties hereto shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the executing party without further verification and (ii) upon the request of the
Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by an original manually executed counterpart thereof. Without limiting the generality of the foregoing, each party hereto hereby (A) agrees that, for all
purposes, including in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and any Borrower, electronic images of this Agreement or any other Loan
Document (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (B) waives any argument, defense or right to contest the validity or
enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto.
Section 9.14 Recalculation of Covenants Following Accounting Practices Change.
The Company shall notify the Administrative Agent of any Accounting Practices Change promptly upon becoming aware of the same. Promptly following such notice, the Company and the Lenders shall negotiate in good faith in order to effect any
adjustments to the Financial Covenants and other provisions hereof necessary to reflect the effects of such Accounting Practices Change.
Section 9.15 Right of Set Off.
If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the
account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under
this Agreement or any other Loan Document and although such obligations of such Borrower may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and their respective Affiliates under this Section 9.15 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each
Lender agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Article and Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 9.17 Non-Liability of Lenders.
The relationship between the Borrowers on the one hand and the Lenders and the Administrative Agent on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers. Neither the Administrative Agent nor any Lender undertakes any responsibility to any Borrower to review or inform the Borrowers of any matter in connection with any phase of the Borrowers’ business or
operations. The Borrowers agree that neither the Administrative Agent nor any Lender shall have liability to the Borrowers (whether sounding in tort, contract or otherwise) for losses suffered by any Borrower in connection with, arising out of,
or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Administrative Agent nor any Lender shall have any liability with respect to, and each
Borrower hereby waives, releases and agrees not to sue for, any special, indirect, punitive or consequential damages suffered by any Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby. Each party’s obligations under this Section 9.17 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loan Commitments
and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 9.18 Customer Identification – USA Patriot Act Notice.
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56,
signed into law October 26, 2001) (the “
Patriot Act”), and such Person’s policies and practices, such Person is required to obtain, verify and record certain information and documentation that identifies each Borrower, which information
includes the name and address of each Borrower and such other information that will allow such Person to identify each Borrower in accordance with the Patriot Act and all applicable “know your customer” and anti-money laundering rules and
regulations.
Section 9.19 Defaulting Lender Cure.
If the Company and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to
any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with their respective Term Loan Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Section 9.20 Designated Lenders.
The Administrative Agent and each Lender at its option may make any Credit Extension or otherwise perform its obligations hereunder through any Lending Office (each, a “Designated Lender”); provided that any exercise of such
option shall not affect the obligation of the Borrowers to repay any Credit Extension in accordance with the terms of this Agreement. Any Designated Lender shall be considered a Lender; provided that such provisions that would be
applicable with respect to Credit Extensions actually provided by such Affiliate or branch of such Lender shall apply to such Affiliate or branch of such Lender to the same extent as such Lender.
Section 9.21 Payments Set Aside.
To the extent any Borrower makes a payment or payments to the Administrative Agent for the ratable benefit of the Lenders or Lender Parties or the Administrative Agent receives any payment which payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Insolvency Proceeding, other applicable law or equitable cause, then, to the extent of such payment
or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment or proceeds had not been received by the Administrative Agent.
Section 9.22 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents, together with all fees, charges and other amounts treated as interest under applicable laws
(collectively, “Charges”) shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest and Charges in an amount that
exceeds the Maximum Rate, the excess interest and Charges shall be applied to the principal of the Advances or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest and Charges contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
Section 9.23 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under
any Loan Document, to the extent such liability is unsecured, subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of
any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Affected Financial Institution; and (b) the effects of any Bail-In Action on any such
liability, including, if applicable, (i) a reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial
Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Loan Document or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 9.24 Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”),
the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any
Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): in the event a Covered Entity that is party to a Supported QFC (each, a “Covered
Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC
Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the
Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered
Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are
permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the
United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC
or any QFC Credit Support.
Section 9.25 Duration; Survival.
All representations and warranties of the Borrowers contained herein or made in connection herewith shall survive the execution and delivery of this Agreement, the completion of the transactions hereunder and Payment In Full. All covenants and
agreements of the Borrowers contained herein relating to the payment of principal, interest, premiums, additional compensation or expenses and indemnification, including those set forth in the Notes, Article II, Section 9.5 and Section
9.6 or any other provision of any Loan Document, the agreement of the Lenders set forth in Section 9.6(b), and the agreements of the Borrowers set forth in Section 9.9, Section 9.11 and Section 9.12 or any
other provision of any Loan Documents shall survive Payment In Full and shall protect the Administrative Agent, the Lenders and any other Indemnitees against events arising after such termination as well as before. All other covenants and
agreements of the Borrowers shall continue in full force and effect from and after the date hereof and until Payment In Full.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized signatories to execute and deliver this Credit Agreement as of the date first above written.
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SENSIENT TECHNOLOGIES CORPORATION,
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a Wisconsin corporation
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By:
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/s/ David Plautz
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Name:
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David Plautz
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Title:
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Vice President, Investor Relations and Treasurer
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COBANK, ACB,
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as the Administrative Agent
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By:
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/s/ Natalya Rivkin |
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Name:
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Natalya Rivkin
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Title:
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Managing Director
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COMPEER FINANCIAL, PCA,
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as a Lender
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By:
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/s/ John M. Pastore |
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Name:
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John M. Pastore
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Title:
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Vice President
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Signature Page to Credit Agreement