Form 8-K
8-K — Jackson Financial Inc.
Accession: 0001104659-26-079925
Filed: 2026-07-01
Period: 2026-07-01
CIK: 0001822993
SIC: 6311 (LIFE INSURANCE)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — tm2618572d2_8k.htm (Primary)
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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): July 1, 2026
Jackson Financial Inc.
(Exact name
of registrant as specified in its charter)
Delaware
001-40274
98-0486152
(State or other jurisdiction of incorporation)
(Commission
File
Number)
(I.R.S.
Employer Identification No.)
1 Corporate Way,
Lansing,
Michigan
48951
(Address of principal
executive offices)
(Zip Code)
(517) 381-5500
(Registrant’s
telephone number, including area code)
N/A
(Former name
or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of Exchange
on which registered
Class A Common Stock, Par Value $0.01 Per Share
JXN
New York Stock Exchange
Depositary Shares, each representing a 1/1,000th interest in a share of Fixed-Rate Reset Noncumulative Perpetual Preferred Stock, Series A
JXN PRA
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 under the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 under the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On June 30, 2026, Jackson Financial Inc. (the "Company")
entered into a Revolving Credit Agreement dated as of June 30, 2026 (the “Credit Agreement”) with a syndicate of banks
and Wells Fargo Bank, National Association, as Administrative Agent. The Credit Agreement provides for borrowings for working capital
and other general corporate purposes under aggregate commitments of $1.25 billion, with a sub-limit of $500 million available
for letters of credit. The Credit Agreement further provides for the ability for the Company to request, subject to customary terms and
conditions, an increase in commitments thereunder by up to an additional $500 million. Interest on borrowings may be based on a “Base
Rate” (as defined in the Credit Agreement) or a “Term SOFR Rate” (as defined in the Credit Agreement), plus a margin
ranging from 1.125% to 1.875% (in the case of borrowings based on the Term SOFR Rate) or from 0.125% to 0.875% (in the case of borrowings
based on the Base Rate). The applicable margin is based upon the ratings assigned to the Company’s senior, unsecured, non-credit
enhanced debt. Borrowings under the Credit Agreement are unsecured.
Commitments under the Credit Agreement terminate on June 30, 2031.The
Credit Agreement provides the Company with two options to extend the termination date of the commitments of the applicable Consenting
Bank (as defined in the Credit Agreement) by one year for each such option, subject to the agreement of the Required Banks (as defined
in the Credit Agreement) under the Credit Agreement. The Credit Agreement replaces the Company’s existing $1 billion unsecured revolving
credit agreement dated as of February 24, 2023, among the Company and a syndicate of banks and Bank of America, N. A., as Administrative
Agent (the “2023 Credit Agreement”), which was scheduled to terminate in February 2028.
The Credit Agreement contains customary representations and warranties,
affirmative and negative covenants and events of default (including a change of control provision) substantially similar to the 2023 Credit
Agreement. The Credit Agreement contains financial maintenance covenants, including (i) a minimum adjusted consolidated net
worth test of no less than the sum of (x) 65% of our adjusted consolidated net worth as of March 31, 2026, plus (y) 50%
of the aggregate amount of any increase in adjusted consolidated net worth resulting from equity issuances by the Company and its consolidated
subsidiaries after March 31, 2026, and (ii) a maximum consolidated indebtedness (including the outstanding principal amount of
certain hybrid instruments) to total capitalization ratio test not to exceed 35%.
The foregoing summary is qualified in its entirety by reference to
the full text of the Credit Agreement, which is attached as an Exhibit to this Form 8-K.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
See Item 1.01. Entry into a Material Definitive Agreement for information
regarding the Credit Agreement entered June 30, 2026.
SAFE HARBOR
The information in this report contains forward-looking
statements about future events and circumstances and their effects upon revenues, expenses and business opportunities. Generally speaking,
any statement in this report not based upon historical fact is a forward-looking statement. Forward-looking statements can also be identified
by the use of forward-looking or conditional words, such as “could,” “should,” “can,” “continue,”
“estimate,” “forecast,” “intend,” “look,” “may,” “expect,” “believe,”
“anticipate,” “plan,” “predict,” “remain,” “future,” “confident”
and “commit” or similar expressions. In particular, statements regarding plans, strategies, prospects, targets and expectations
regarding the business and industry are forward-looking statements. They reflect expectations, are not guarantees of performance and speak
only as of the dates the statements are made. We caution investors that these forward-looking statements are subject to known and unknown
risks and uncertainties that may cause actual results to differ materially from those projected, expressed or implied. Other factors that
could cause actual results to differ materially from those in the forward-looking statements include those reflected in Part I, Item
1A. Risk Factors and Part II, Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations
in our Annual Report on Form 10-K for the year ended December 31, 2025, as filed with the U.S. Securities and Exchange Commission
(the “SEC”) on February 24, 2026, and elsewhere in the Company’s reports filed with the SEC. Except as required
by law, Jackson Financial Inc. does not undertake to update such forward-looking statements. You should not rely unduly on forward-looking
statements..
WEBSITE INFORMATION
Visit investors.jackson.com to view information regarding Jackson Financial
Inc. We routinely use our investor relations website as a primary channel for disclosing key information to our investors. We may use
our website as a means of disclosing material, non-public information and for complying with our disclosure obligations. Accordingly,
investors should monitor our investor relations website, in addition to following our press releases, filings with the SEC, public conference
calls, presentations, and webcasts. We and certain of our senior executives may also use social media channels to communicate with our
investors and the public about our Company and other matters, and those communications could be deemed to be material information. The
information contained on, or that may be accessed through, our website, our social media channels, or our executives’ social media
channels is not incorporated by reference into and is not part of this report.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
10.1 Revolving Credit Agreement, dated as of June 30, 2026, among Jackson Financial Inc., the Subsidiary Account Parties, as additional
obligors, the Banks party thereto, and Wells Fargo Bank, National Association, as Administrative Agent.
104 Cover
Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL Document)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
JACKSON FINANCIAL INC.
Date: June 30, 2026
By:
/s/ Don W. Cummings
Name:
Don W. Cummings
Title:
Executive Vice
President and Chief Financial Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2618572d2_ex10-1.htm · Sequence: 2
Exhibit
10.1
Execution
Version
Published
CUSIP Number: 46816XAH7 (Deal)
US46816XAH70 (Facility)
REVOLVING
CREDIT AGREEMENT
dated
as of
June 30,
2026
among
JACKSON
FINANCIAL INC.,
as the Company
the
SUBSIDIARY ACCOUNT PARTIES,
as additional Obligors
the
BANKS party hereto and
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
$1,250,000,000
WELLS
FARGO SECURITIES, LLC,
BOFA SECURITIES, INC.,
JPMORGAN CHASE BANK, N.A.,
and
TD SECURITIES (USA) LLC,
as Joint Lead Arrangers and Bookrunners
BANK
OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A.,
and
TD SECURITIES (USA) LLC,
as Syndication Agents
TABLE
OF CONTENTS
Page
Article
I DEFINITIONS
1
SECTION
1.01.
Definitions
1
SECTION
1.02.
Other
Definitions and Provisions
26
SECTION
1.03.
Accounting
Terms and Determinations
27
SECTION
1.04.
Rounding
27
SECTION
1.05.
References
to Agreement and Laws
27
SECTION
1.06.
Times
of Day
27
SECTION
1.07.
Types
of Borrowings
28
SECTION
1.08.
Divisions
28
SECTION
1.09.
Interest
Rates
28
SECTION
1.10.
Letter
of Credit Amounts
28
Article
II THE CREDITS
29
SECTION
2.01.
Letters
of Credit; General
29
SECTION
2.02.
Issuance
and Administration of Syndicated Letters of Credit
35
SECTION
2.03.
Reimbursement
for LC Disbursements, Cover, Etc.
35
SECTION
2.04.
Loans
39
SECTION
2.05.
Notice
of Borrowings; Interest Elections
40
SECTION
2.06.
Funding
of Loans
41
SECTION
2.07.
Evidence
of Loans
42
SECTION
2.08.
Maturity
of Loans
43
SECTION
2.09.
Interest
Rates of Loans
43
SECTION
2.10.
Fees
44
SECTION
2.11.
Termination,
Reduction or Increase of Commitments; Mandatory Prepayments
45
SECTION
2.12.
Optional
Prepayments
46
SECTION
2.13.
Payments
Generally; Pro Rata Treatment; Administrative Agent’s Clawback
47
SECTION
2.14.
Funding
Losses
49
SECTION
2.15.
Computation
of Interest and Fees
49
SECTION
2.16.
Provisions
Relating to NAIC Approved Banks
49
SECTION
2.17.
Defaulting
Banks
53
SECTION
2.18.
Extension
of Maturity Date
58
Article
III CONDITIONS
60
SECTION
3.01.
Each
Credit Extension
60
SECTION
3.02.
Effectiveness
61
i
Article
IV REPRESENTATIONS AND WARRANTIES
63
SECTION
4.01.
Corporate
Existence and Power
63
SECTION
4.02.
Corporate
and Governmental Authorization; Contravention
63
SECTION
4.03.
Binding
Effect
63
SECTION
4.04.
Financial
Information; No Material Adverse Change
63
SECTION
4.05.
Litigation;
Environmental Matters
64
SECTION
4.06.
Compliance
with ERISA
64
SECTION
4.07.
Taxes
65
SECTION
4.08.
Subsidiaries
65
SECTION
4.09.
Not
an Investment Company
65
SECTION
4.10.
Obligations
to be Pari Passu
65
SECTION
4.11.
No
Default
65
SECTION
4.12.
Material
Subsidiaries and Subsidiary Account Parties
65
SECTION
4.13.
Full
Disclosure
65
SECTION
4.14.
Hybrid
Instruments
66
SECTION
4.15.
Margin
Regulations
66
SECTION
4.16.
Sanctioned
Persons; Anti-Money Laundering Laws, Anti-Corruption Laws
66
SECTION
4.17.
Affected
Financial Institutions
67
Article
V COVENANTS
67
SECTION
5.01.
Information
67
SECTION
5.02.
Payment
of Tax Obligations
69
SECTION
5.03.
Conduct
of Business and Maintenance of Existence
70
SECTION
5.04.
Maintenance
of Property; Insurance
70
SECTION
5.05.
Compliance
with Laws
70
SECTION
5.06.
Inspection
of Property, Books and Records
71
SECTION
5.07.
Financial
Covenants
71
SECTION
5.08.
Negative
Pledge
72
SECTION
5.09.
Consolidations,
Mergers and Sales of Assets
72
SECTION
5.10.
Use
of Credit
72
SECTION
5.11.
Obligations
to be Pari Passu
73
SECTION
5.12.
Certain
Debt
73
SECTION
5.13.
Sanctions,
Anti-Money Laundering and Anti-Corruption
73
Article
VI DEFAULTS
73
SECTION
6.01.
Events
of Default
73
SECTION
6.02.
Notice
of Default
76
Article
VII THE ADMINISTRATIVE AGENT
76
SECTION
7.01.
Appointment
and Authorization
76
SECTION
7.02.
Agent’s
Fee
77
ii
SECTION
7.03.
Agent
and Affiliates
77
SECTION
7.04.
Action
by Agent
77
SECTION
7.05.
Consultation
with Experts
78
SECTION
7.06.
Liability
of Agent
78
SECTION
7.07.
Indemnification
78
SECTION
7.08.
Credit
Decision
79
SECTION
7.09.
Successor
Agent
79
SECTION
7.10.
Delegation
to Affiliates
80
SECTION
7.11.
Joint
Lead Arrangers and Other Agents
80
SECTION
7.12.
Recovery
of Erroneous Payments
80
SECTION
7.13.
Certain
ERISA Matters
82
SECTION
7.14.
Reliance
by the Administrative Agent
83
SECTION
7.15.
Non-Reliance
on Administrative Agent and the Banks
83
Article
VIII CHANGE IN CIRCUMSTANCES
84
SECTION
8.01.
Inability
to Determine Rates
84
SECTION
8.02.
Illegality
87
SECTION
8.03.
Increased
Cost and Reduced Return
87
SECTION
8.04.
Base
Rate Loans Substituted for Affected Loans Based on SOFR or Term SOFR
89
SECTION
8.05.
Taxes
89
SECTION
8.06.
Mitigation
Obligations; Replacement of Banks
93
Article
IX MISCELLANEOUS
94
SECTION
9.01.
Notices
94
SECTION
9.02.
No
Waivers
95
SECTION
9.03.
Expenses;
Indemnification; Non-Liability of Banks
95
SECTION
9.04.
Sharing
of Payments
97
SECTION
9.05.
Amendments
and Waivers
97
SECTION
9.06.
Successors
and Assigns
98
SECTION
9.07.
Collateral
100
SECTION
9.08.
New
York Law
100
SECTION
9.09.
Judicial
Proceedings
100
SECTION
9.10.
Integration;
Headings; Electronic Execution; Electronic Records; Counterparts
101
SECTION
9.11.
Confidentiality
104
SECTION
9.12.
WAIVER
OF JURY TRIAL
105
SECTION
9.13.
Joinder
and Termination of Subsidiary Account Party
105
SECTION
9.14.
Certain
Notices
106
SECTION
9.15.
No
Fiduciary Duty
106
iii
SECTION
9.16.
Acknowledgement
and Consent to Bail-In of Affected Financial Institutions
107
SECTION
9.17.
Right
of Setoff
107
SECTION
9.18.
Severability
108
SECTION
9.19.
Interest
Rate Limitation
108
EXHIBITS
Exhibit
A
Form
of Note
Exhibit
B
Form
of Syndicated Letter of Credit
Exhibit
C-1
Form
of Letter of Credit Request
Exhibit
C-2
Form
of Letter of Credit Application
Exhibit
D
Form
of Assignment and Assumption
Exhibit
E
Form
of Confirming Bank Agreement
Exhibit
F
Form
of Maturity Extension Request
Exhibit
G
Form
of Subsidiary Joinder Agreement
Exhibit
H
Form
of Subsidiary Termination Notice
SCHEDULES
Schedule
I
Commitments
Schedule
II
Material
Subsidiaries and Subsidiary Account Parties
Schedule
III
Hybrid
Instruments
Schedule
IV
Debt
Schedule
V
Liens
iv
REVOLVING
CREDIT AGREEMENT dated as of June 30, 2026 among
JACKSON FINANCIAL INC., a Delaware corporation, the SUBSIDIARY
ACCOUNT PARTIES party hereto, the BANKS party hereto and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent.
The
Company has requested that the Banks make loans to it in an aggregate principal amount not exceeding $1,250,000,000 at any one time outstanding,
of which up to $500,000,000 in face amount at any one time outstanding may be in the form of letters of credit issued for the account
of the Subsidiary Account Parties, and the Banks are prepared to make such loans and issue such letters of credit upon the terms and
conditions hereof. Accordingly, the parties hereto agree as follows:
Article I
DEFINITIONS
SECTION 1.01.
Definitions. The following terms, as used herein,
have the following meanings:
“Additional
Commitment Bank” means (a) a Bank or (b) any other Person, in each case that agrees to provide a Commitment or (in
the case of a Bank) agrees to increase the amount of its Commitment pursuant to Section 2.11(c), with the consent of the Administrative
Agent and each Fronting Issuing Bank (such consent not to be unreasonably withheld or delayed).
“Adjusted
Consolidated Net Worth” means, at any date, without duplication, the sum of the total equity, determined in accordance with
GAAP, of the Company and its Consolidated Subsidiaries shown on the consolidated balance sheets in the consolidated financial statements
of the Company and its Consolidated Subsidiaries; provided that, in determining such Adjusted Consolidated Net Worth, there shall be
excluded (i) any “Accumulated Other Comprehensive Income (Loss)” shown on the consolidated balance sheets in the consolidated
financial statements of the Company and its Consolidated Subsidiaries prepared in accordance with GAAP with the exception of Accumulated
Other Comprehensive Income (Loss) arising from investments held within the Athene Reinsurance Funds Withheld Account, as disclosed in
the notes to the Consolidated Financial Statements of the Company and its Consolidated Subsidiaries and (ii) all noncontrolling
equity interests in subsidiaries (as determined in accordance with Statement of Financial Accounting Standards No. 160, entitled
“Noncontrolling Interests in Consolidated Financial Statements”) shown on the consolidated balance sheets in the consolidated
financial statements of the Company and its Consolidated Subsidiaries.
“Administrative
Agent” means Wells Fargo (or any of its designated branch offices or affiliates), in its capacity as agent for the Banks hereunder,
and its successors in such capacity.
“Administrative
Questionnaire” means, with respect to each Bank, an administrative questionnaire in the form prepared by the Administrative
Agent and submitted to the Administrative Agent (with a copy to the Company) duly completed by such Bank.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person.
“Agreement”
means this Revolving Credit Agreement, as it may be amended or modified and in effect from time to time.
“AIF”
means any collective investment undertaking, including an investment compartment thereof, which (i) raises capital from a number
of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors, and is not
operationally active enterprise outside of the financial sector, and (ii) is not authorized pursuant to Article 5 of Directive
2009/65/EC of 13 July 2009 (as defined in Article 4 (1) (a) of the Directive 2011/61/EU).
“AIFM”
means a management company of one or more AIFs.
“Anti-Corruption
Laws” has the meaning set forth in Section 4.16.
“Anti-Money
Laundering Laws” means any and all Laws or other rules related to terrorism financing, money laundering, or any financial
record keeping, including any applicable provision of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also known
as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable
Commitment Fee Rate”, “Applicable Letter of Credit Commission” and “Applicable Margin”
means, for any day, with respect to the Commitment Fees payable hereunder or with respect to the letter of credit fees payable under
Section 2.10(b) or with respect to the interest margin on any Base Rate Loan or Term SOFR Loan, as the case may be, the applicable
rate per annum set forth below under the caption “Applicable Commitment Fee Rate”, “Applicable Letter of Credit Commission”,
“Applicable Margin (Base Rate Loans)” or “Applicable Margin (Term SOFR Loans)”, respectively, based upon the
ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:
Index
Debt Ratings (S&P/ Moody’s)
Applicable
Commitment Fee Rate
Applicable
Margin (Term SOFR Loans)
Applicable
Margin (Base Rate Loans)
Applicable
Letter of Credit Commission
Category 1
≥
A- / A3
0.100%
1.125%
0.125%
1.000%
Category 2
BBB+
/ Baa1
0.125%
1.250%
0.250%
1.125%
Category 3
BBB
/ Baa2
0.150%
1.375%
0.375%
1.250%
Category 4
BBB-
/ Baa3
0.175%
1.625%
0.625%
1.500%
Category 5
<
BB+ / Ba1
0.225%
1.875%
0.875%
1.750%
For
purposes of the foregoing, (a) if the ratings established or deemed to have been established by Moody’s and S&P for the
Index Debt shall fall within different Categories that are
2
one
Category apart, the Applicable Commitment Fee Rate, the Applicable Letter of Credit Commission and the Applicable Margin shall be determined
by reference to the Category of the higher of the two ratings; (b) if the ratings established or deemed to have been established
by Moody’s and S&P for the Index Debt shall fall within different Categories that are more than one Category apart, the Applicable
Commitment Fee Rate, the Applicable Letter of Credit Commission and the Applicable Margin shall be determined by reference to the Category
next below that of the higher of the two ratings; (c) if only one of Moody’s and S&P shall have in effect a rating for
the Index Debt, the Applicable Commitment Fee Rate, the Applicable Letter of Credit Commission and the Applicable Margin shall be determined
by reference to the Category next below that of such rating; (d) if neither Moody’s nor S&P shall have in effect a rating
for the Index Debt (other than by reason of the circumstances referred to in the second to last sentence of this definition), then the
applicable rating shall be determined by reference to Category 5; provided that, if neither Moody’s nor S&P shall have
in effect a rating for the Index Debt, the applicable rating shall be determined by reference to the corporate family rating of the Company
and its Subsidiaries assigned by Moody’s and/or S&P, if available; and (e) if the ratings established or deemed to have
been established by Moody’s and S&P for the Index Debt (or, if applicable at such time, the corporate family rating) shall
be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of
the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished
by the Company to the Administrative Agent and the Banks pursuant to Section 5.01 or otherwise. Each change in the Applicable Commitment
Fee Rate, the Applicable Letter of Credit Commission and the Applicable Margin shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of
Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations,
the Company and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability
of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Commitment Fee Rate, the Applicable
Letter of Credit Commission and the Applicable Margin shall be determined by reference to the rating of Moody’s and/or S&P,
as the case may be, most recently in effect prior to such change or cessation. References herein to “Applicable Margin” shall
refer to the Applicable Margin for the relevant Type of Loan, as applicable. Initially, the Applicable Commitment Fee Rate, Applicable
Letter of Credit Commission and Applicable Margin shall be set at Category 3.
“Applicable
Lending Office” means, as to each Bank, its office, branch or Affiliate located at its address set forth in its Administrative
Questionnaire or such other office, branch or Affiliate of such Bank as it may hereafter designate as its Applicable Lending Office for
purposes hereof by notice to the Company and the Administrative Agent.
“Applicable
Percentage” means, with respect to any Bank at any time, the percentage of the total Commitments at any time represented by
such Bank’s Commitment; provided that in the case of Section 2.17 when a Defaulting Bank shall exist, “Applicable
Percentage” shall mean the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented
by such Bank’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to any assignments and to any Bank’s status as a Defaulting Bank at
the time of determination.
3
“Approved
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities and that is administered
or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or
manages a Bank.
“Approved
Electronic Platform” has the meaning set forth in Section 9.10(c).
“Assignee”
has the meaning set forth in Section 9.06(c).
“Assignment
and Assumption” means an assignment and assumption entered into by a Bank and an Assignee (with the consent of any party whose
consent is required by Section 9.06), and accepted by the Administrative Agent, in the form of Exhibit D or any other
form approved by the Administrative Agent.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any
liability of an Affected Financial Institution.
“Bail-In
Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of
the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable
in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their
affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank”
means each Person listed under the caption “BANKS” on the signature pages hereof, and each other Person that shall become
a party hereto as a Bank pursuant to an Assignment and Assumption or other instrument executed hereunder (other than any such Person
that ceases to be a Bank by means of assignment pursuant to this Agreement), together with its successors; provided that any Bank
may elect to perform any of its obligations under this Agreement or other Credit Documents (including issuing Letters of Credit) by acting
through one or more of its Affiliates or branches, so long as any such Affiliate or branch that issues Letters of Credit hereunder is
an NAIC Approved Bank and complies with the related requirements applicable to Banks issuing Letters of Credit hereunder; provided,
further, that any exercise of such option shall not affect the obligation of the Company and/or the relevant Subsidiary Account
Party to repay such obligation (including in respect of Letters of Credit) in accordance with the terms of this Agreement. For purposes
of clarification, the term “Bank” shall include each Fronting Issuing Bank.
“Bankruptcy
Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with
the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent,
has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment,
provided that a Bankruptcy
4
Event
shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a governmental
body, agency or official or instrumentality thereof as long as such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Person (or such governmental body, agency or official or instrumentality) to reject, repudiate, disavow or disaffirm
any contracts or agreements made by such Person.
“Base
Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus one-half
of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Wells Fargo as
its “prime rate,” (c) Term SOFR (determined in accordance with clause (b) of the definition thereof) in effect
for such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business
Day) plus one percent (1.00%) and (d) one percent (1.00%). The “prime rate” is a rate set by Wells Fargo based
upon various factors including Wells Fargo’s costs and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate
announced by Wells Fargo shall take effect at the opening of business on the day specified in the public announcement of such change.
If the Base Rate is being used as an alternate rate of interest pursuant to Section 8.01 hereof, then the Base Rate shall
be the greater of clauses (a), (b) and (d) above and shall be determined without reference to clause (c) above.
“Base
Rate Loan” means a Loan to be made by a Bank pursuant to Section 2.04 as a Base Rate Loan in accordance with the applicable
Notice of Borrowing or Article VIII.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership
Regulation.
“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit
Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not
a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA,
(b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include
(for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets
of any such “employee benefit plan” or “plan”.
“Board”
means the Board of Governors of the Federal Reserve System of the United States.
“Borrowing”
has the meaning set forth in Section 1.07.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests,
5
and
any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“Change
in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect
of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline
or directive (whether or not having the force of Law) by any Governmental Authority.
“Change
of Control” means any event or series of events by which, any person or group of persons (within the meaning of Section 13
or 14 of the Exchange Act) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under
the Exchange Act) of 40% or more of the aggregate ordinary voting power represented by the issued and outstanding common Capital Stock
of the Company.
“CME”
means CME Group Benchmark Administration Limited.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collateral
Account” has the meaning set forth in Section 2.03(e).
“Commitment”
means, with respect to any Bank, the commitment of such Bank (a) to issue Syndicated Letters of Credit under Section 2.01(a) and
to acquire participations in Fronted Letters of Credit and/or (b) to make Loans hereunder, in each case expressed as an amount representing
the maximum aggregate amount of such Bank’s Credit Exposure hereunder, as such commitment may be reduced or increased from time
to time pursuant to this Agreement (including pursuant to assignments by or to such Bank pursuant to Section 9.06). The initial
amount of each Bank’s Commitment is set forth on Schedule I hereto or in the Assignment and Assumption or other instrument
executed and delivered hereunder pursuant to which such Bank shall have assumed its Commitment, as applicable. The aggregate amount of
the Banks’ Commitments is $1,250,000,000 as of the Effective Date. The Commitments of the Banks are several and not joint and no
Bank shall be responsible for any other Bank’s failure (a) to issue Syndicated Letters of Credit under Section 2.01(a) and
to acquire participations in Fronted Letters of Credit and/or (b) to make Loans hereunder.
“Commitment
Availability Period” means the period from and including the Effective Date to but excluding the date of termination of the
Commitments.
“Commitment
Fee” has the meaning set forth in Section 2.10(a).
“Commitment
Increase” has the meaning set forth in Section 2.11(b).
“Communication”
means this Agreement, any other Credit Document and any document, any amendment, approval, consent, information, notice, certificate,
request, statement, disclosure or authorization related to any Credit Document.
“Company”
means Jackson Financial Inc., a Delaware corporation, and its successors.
6
“Confidential
Information” has the meaning set forth in Section 9.11.
“Confirming
Bank” means, with respect to any Bank, any other Bank that has agreed, by delivery of a confirming bank agreement in substantially
the form of Exhibit E (a “Confirming Bank Agreement”), that such other Bank will itself honor the obligations
of such Bank in respect of a draft complying with the terms of a Letter of Credit as if, and to the extent, such other Bank were the
“Issuing Bank” named in such Letter of Credit; provided, that no Bank shall be obligated to so act as a Confirming
Bank.
“Confirming
Bank Agreement” has the meaning set forth in the definition of “Confirming Bank”.
“Conforming
Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor
Rate or Term SOFR, as applicable, any conforming changes to the definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing
and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including,
for the avoidance of doubt, the definitions of Domestic Business Day and U.S. Governmental Securities Business Day, timing of borrowing
requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, as determined in the
reasonable discretion of the Administrative Agent, in consultation with the Company, to reflect the adoption and implementation of such
applicable rate(s), and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market
practice (or, if the Administrative Agent reasonably determines, in consultation with the Company, that adoption of any portion of such
market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other
manner of administration as the Administrative Agent determines, in consultation with the Company, is reasonably necessary in connection
with the administration of this Agreement and any other Credit Document).
“Consenting
Bank” has the meaning assigned to such term in Section 2.18(a).
“Consolidated
Subsidiary” means, at any date, any Subsidiary the accounts of which would be consolidated with those of the Company in its
consolidated financial statements if such statements were prepared as of such date; provided that, for purposes of Sections 4.04(a) and
(b) and 5.01, the term “Consolidated Subsidiary” shall include each of the Investment Entities to the extent the accounts
of such entity are required to be (and are) consolidated with those of the Company in its consolidated financial statements in accordance
with GAAP.
“Consolidated
Total Capitalization” means, at any date, for the Company and its Consolidated Subsidiaries, the sum of, without duplication,
(i) Consolidated Total Indebtedness plus (ii) Adjusted Consolidated Net Worth plus (iii) the aggregate amount of
obligations in respect of Hybrid Instruments, if any.
“Consolidated
Total Indebtedness” means, at any date, for the Company and its Consolidated Subsidiaries, the sum of, without duplication,
(i) the aggregate amount of all Non-Operating Indebtedness (excluding any such obligations in respect of Hybrid Instruments), plus
(ii) the aggregate amount of all Disqualified Capital Stock.
7
“Credit
Documents” means (a) this Agreement, (b) the Notes, (c) with respect to any Letter of Credit, collectively,
any application therefor and any other agreements, instruments, guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or (ii) any collateral security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time and (d) the Fee Letter.
“Credit
Exposure” means, with respect to any Bank at any time, the sum of (a) the aggregate principal amount of such Bank’s
Loans and (b) the aggregate amount of such Bank’s LC Exposure, in each case, outstanding at such time.
“Credit
Party” means the Administrative Agent, each Fronting Issuing Bank or any Bank.
“Daily
Simple SOFR” with respect to any applicable determination date, means the SOFR published on such date on the Federal Reserve
Bank of New York’s website (or any successor source).
“Debt”
of any Person means, at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (d) all
obligations of such Person as lessee under capital leases, (e) all non-contingent obligations of such Person to reimburse any bank
or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (f) all Debt
of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, (g) all Debt of others
Guaranteed by such Person, and (h) all obligations of such Person in respect of Disqualified Capital Stock (and, for the avoidance
of doubt, Debt shall include Hybrid Instruments); provided that the definition of “Debt” does not include any obligations
of such Person (i) under repurchase or reverse repurchase agreements to repurchase or resell (as applicable) securities (or other
property) which arise out of or in connection with the sale of the same or substantially similar securities (or other property), (ii) to
return collateral pledged in respect of or in connection with the loan of such securities, (iii) under reinsurance, coinsurance,
modified coinsurance agreements or similar agreements and related trust agreements (including, without limitation, trust obligations
or obligations to otherwise pledge collateral thereunder) and (iv) arising under insurance products created or entered into in the
ordinary course of business. It is acknowledged and agreed, for the avoidance of doubt, that annuities, guaranteed investment contracts,
funding agreements and similar instruments and agreements shall not constitute “Debt”.
“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect.
“Declining
Bank” has the meaning assigned to such term in Section 2.18(a).
8
“Default”
means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
“Defaulting
Bank” means any Bank that (a) has failed, within two Domestic Business Days of the date required to be funded or paid,
to (i) fund any portion of its Loans, (ii) fund any portion of its obligations in respect of Letters of Credit (including its
participations in Fronted Letters of Credit) or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder,
unless, in the case of clause (i) above, such Bank notifies the Administrative Agent in writing that such failure is the result
of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular
default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement
to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing
or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a loan under this Agreement will not be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Domestic Business Days after request by the
Administrative Agent, the Company or any Fronting Issuing Bank, acting in good faith, to provide a certification in writing from an authorized
officer of such Bank that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective
Loans and obligations in respect of then outstanding Letters of Credit (including its participations in then outstanding Fronted Letters
of Credit) under this Agreement; provided, that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon
receipt by the Administrative Agent, the Company or such Fronting Issuing Bank of such certification in form and substance satisfactory
to the Administrative Agent, the Company and (if applicable) such Fronting Issuing Bank, (d) has, or has a direct or indirect parent
company that has, become the subject of (A) a Bankruptcy Event or (B) a Bail-In Action, or (e) ceases to be a NAIC Approved
Bank and has failed to comply with its obligations under Section 2.16(b).
“Derivative
Financial Products” of any Person means all obligations (including whether pursuant to any master agreement or any particular
agreement or transaction) of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, interest rate
future, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency future, currency option or any other similar transaction (including any option with respect to any of the
foregoing) or any combination thereof.
“Disqualified
Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which
it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of
a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale
event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination
of the Commitments and the termination or expiration of all outstanding Letters of Credit (unless the outstanding amount of the L/C Obligations
related thereto has been cash collateralized,
9
backstopped
by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable
to the applicable L/C Issuer)), or (b) is redeemable at the sole option of the holder thereof, on or prior to 180 days after the
first anniversary of the Maturity Date (other than solely for Qualified Capital Stock and other than as a result of a change of control
or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject
to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments
and the expiration or termination of all outstanding Letters of Credit (unless the outstanding amount of the L/C Obligations related
thereto has been cash collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed
reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), in whole or in part; provided, that if
such Capital Stock is issued pursuant to a plan for the benefit of future, present or former employees, directors, officers, managers
or consultants (or their respective Affiliates or immediate family members) of the Company or the Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased
by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollars”
and the sign “$” means lawful money in the United States of America.
“Domestic
Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized
by law to close.
“Early
Termination” has the meaning set forth in the definition of “Material Unpaid Derivative Product Indebtedness”.
“EEA
Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision
of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described
in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its
parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective
Date” means the date this Agreement becomes effective in accordance with Section 3.02.
“Electronic
Copy” has the meaning set forth in Section 9.10(b).
“Electronic
Record” shall have the meaning assigned to it by 15 U.S.C. §7006, as it may be amended from time to time.
10
“Electronic
Signature” shall have the meaning assigned to it by 15 U.S.C. §7006, as it may be amended from time to time.
“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment
or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
“Equity
Issuance” means, with respect to any Person, (a) any issuance or sale by such Person of (i) any Capital Stock, (ii) any
warrants or options exercisable in respect of Capital Stock (other than any warrants or options issued to directors, officers or employees
of such Person in their capacity as such and any Capital Stock issued upon the exercise thereof) or (iii) any other security or
instrument representing Capital Stock (or the right to obtain any Capital Stock) in such Person or (b) the receipt by such Person
of any contribution to its capital (whether or not evidenced by any equity security) by any other Person; provided that Equity
Issuance shall not include, with respect to any Subsidiary of the Company, any such issuance or sale by such Subsidiary to the Company
or another Subsidiary or any capital contribution by the Company or another Subsidiary to such Subsidiary.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.
“ERISA
Group” means the Company and all members of a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company, are treated as a single employer under Section 414(b) or
414(c) of the Code.
“Erroneous
Payment” has the meaning set forth in Section 7.12(a).
“Erroneous
Payment Return Deficiency” has the meaning set forth in Section 7.12(d).
“Erroneous
Payment Deficiency Assignment” has the meaning set forth in Section 7.12(d).
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
Person), as in effect from time to time.
“Event
of Default” has the meaning set forth in Section 6.01.
“Evergreen
Letter of Credit” has the meaning set forth in Section 2.01(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
11
“Existing
Credit Agreement” means that certain Revolving Credit Agreement dated as of February 24, 2023 by and among the Company,
the Subsidiary Account Parties party thereto, the banks party thereto from time to time and Bank of America, N.A., as administrative
agent, as amended, restated, supplemented or otherwise modified from time to time prior to the Effective Date.
“Existing
Maturity Date” has the meaning assigned to such term in Section 2.18(a).
“Extension
Effective Date” has the meaning assigned to such term in Section 2.18(a).
“Federal
Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set
forth on its public website from time to time) and published on the next succeeding Domestic Business Day by the Federal Reserve Bank
of New York as the federal funds effective rate; provided, that if the Federal Funds Rate as so determined would be less than
zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee
Letter” means that certain letter agreement, dated June 3, 2026, among the Company, the Administrative Agent and Wells
Fargo Securities, LLC, as amended and in effect from time to time.
“Financial
Officer” means the chief financial officer, principal accounting officer, treasurer, assistant treasurer, or other senior financial
officer of the Company, in each case, to the extent duly authorized to deliver certifications hereunder.
“Fronted
LC Cash Collateral” has the meaning set forth in Section 2.16(b)(i).
“Fronted
LC Collateral Account” has the meaning set forth in Section 2.16(b)(i).
“Fronted
LC Commitment” means, with respect to any Fronting Issuing Bank, the maximum aggregate undrawn face amount of Fronted Letters
of Credit which such Fronting Issuing Bank shall have agreed to issue hereunder (as set forth in the written instrument referred to in
the definition of “Fronting Issuing Bank” by which the applicable Bank agrees to be a Fronting Issuing Bank hereunder), as
such maximum amount may be changed from time to time in accordance with Section 2.01(a).
“Fronted
LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Fronted Letters of Credit
at such time plus (b) the aggregate amount of all LC Disbursements under Fronted Letters of Credit that have not yet been
reimbursed by or on behalf of the relevant Obligor at such time. The Fronted LC Exposure of any Bank shall at any time be its Applicable
Percentage of the total Fronted LC Exposure at such time.
“Fronted
Letter of Credit” means a letter of credit issued by a Fronting Issuing Bank as the sole issuing bank.
“Fronting
Issuing Bank” means each Bank (which, if appointed on a date after the Effective Date, shall be listed on the NAIC Approved
Bank List on the date of such appointment), if any,
12
that
has agreed, in its sole discretion, to be a Fronting Issuing Bank and to issue Fronted Letters of Credit hereunder, on or after the Effective
Date by a written instrument executed by such Bank and the Company and delivered to the Administrative Agent hereunder (which instrument
shall be in form and substance satisfactory to the Administrative Agent), whereupon such Bank shall become a Fronting Issuing Bank hereunder,
provided that no Bank shall be obligated to so act as a Fronting Issuing Bank.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
“GBSA”
means the provisions as stipulated in Sec. 3 para (2) of the German Banking Code (Kreditwesengesetz) as introduced by the German
Act on the Ring-fencing of Risks and for the Recovery and Resolution Planning for Credit Institutions and Financial Groups (Gesetz zur
Abschirmung von Risiken und zur Planung der Sanierung und Abwicklungvon Kreditinstituten und Finanzgruppen) of 7 August 2013 (commonly
referred to as the German Bank Separation Act (Trennbankengesetz), as amended).
“GBSA
Bank” has the meaning set forth in Section 5.10(b).
“Governmental
Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank, self-regulatory organization or other entity, including international
or supranational entities, exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other
Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such Debt
of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee”
used as a verb has a corresponding meaning.
“Hybrid
Instrument Amount” means, with respect to any Hybrid Instruments, the principal amount (which principal amount may be a portion
of the aggregate principal amount) of such Hybrid Instrument that is accorded equity credit treatment by S&P and/or Moody’s
at the time of issuance thereof; provided that, (i) in the case such Hybrid Instruments are given equity credit by both S&P
and Moody’s, the higher of the two amounts shall apply, (ii) the equity credit treatment given by S&P and Moody’s
to any Hybrid Instrument at the time of issuance shall be deemed to
13
apply
to such Hybrid Instrument to the extent such Hybrid Instrument remains outstanding, irrespective of any change in the equity credit treatment
given by either such rating agency to such Hybrid Instrument at any time after the date of issuance (it being agreed, for avoidance of
doubt, that any change in the amount or percentage of the equity credit given to such Hybrid Instrument that is contemplated in the equity
credit treatment given to such Hybrid Instrument as of the date of issuance (including, without limitation, any such change resulting
from the life to maturity of such Hybrid Instrument or the amount of all such Hybrid Instruments as a percentage of total adjusted capital
(as determined by S&P or Moody’s)) shall continue to be given effect after the date of issuance in determining the Hybrid Instrument
Amount), unless such change results from an amendment or modification to such Hybrid Instrument, and (iii) the Hybrid Instrument
Amount shall not, at any time, exceed 15% of Consolidated Total Capitalization.
“Hybrid
Instruments” means Securities that are given at least some equity credit by S&P or Moody’s (and as to which, in the
case of any Hybrid Instrument issued after the Effective Date, the Company shall have provided evidence of such equity credit to the
Administrative Agent), provided that the term “Hybrid Instruments” shall exclude any Securities to the extent recorded
in the shareholder’s equity section of the consolidated balance sheet of the Company and its Consolidated Subsidiaries most recently
filed with the SEC. As used herein “Securities” means any stock, share, partnership interest, membership interest
in a limited liability company, voting trust certificate, certificate of interest or participation in any profit-sharing agreement or
arrangement, option, warrant, bond, debenture, note, or other evidence of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
“Index
Debt” means senior, unsecured, long-term indebtedness for borrowed money of the Company that is not guaranteed by any other
Person or subject to any other credit enhancement.
“Insurance
Subsidiary” means any Subsidiary which is subject to the regulation of, and is required to file statements with, any governmental
body, agency or official in any State or territory of the United States or the District of Columbia which regulates insurance companies
or the doing of an insurance business therein.
“Interest
Election Request” means a request by the Company to convert or continue a Borrowing in accordance with Section 2.05(b).
“Interest
Period” means as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to
or continued as a Term SOFR Loan and ending on the date one, three or six months thereafter, as selected by the Company in the applicable
Notice of Borrowing or Interest Election Request (in the case of each requested Interest Period, subject to availability); provided,
that:
(a) any
Interest Period that would otherwise end on a day that is not a Domestic Business Day shall be extended to the next succeeding Domestic
Business Day, unless, in the case of a Term SOFR Loan, such Domestic Business Day falls in another calendar
14
month,
in which case such Interest Period shall end on the next preceding Domestic Business Day;
(b) any
Interest Period pertaining to a Term SOFR Loan that begins on the last Domestic Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Domestic Business
Day of the calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date.
For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
“Investment
Entities” means entities where, as party to a joint venture, partnership, securitization transaction or other similar investment
transactions, the Company or one of its Subsidiaries does not have complete control solely as a result of having a veto or consent right
over certain material actions or decisions, including, without limitation, the incurrence of any indebtedness or obligations incurred
by such entities.
“Joint
Lead Arrangers” means Wells Fargo Securities, LLC, BofA Securities, Inc. (or any of its designated affiliates), JPMorgan
Chase Bank, N.A. (it being understood and agreed that JPMorgan Chase Bank, N.A. may perform its responsibilities as a Joint Lead Arranger
through its affiliate J.P. Morgan Securities LLC) and TD Securities (USA) LLC.
“L/C
Issuer” means Wells Fargo, in its capacity as issuer of Letters of Credit hereunder. The L/C Issuer may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the L/C Issuer, in which case the term “L/C Issuer”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“L/C
Obligations” means at any time, an amount equal to the sum of (a) the aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed
pursuant to Section 2.03.
“Laws”
means, collectively, all international, supranational, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents, orders, decrees, injunctions or authorities, including the interpretation
or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authority.
“LC
Collateral Account” has the meaning set forth in Section 2.16(b)(ii).
“LC
Disbursement” means a payment made by a Bank pursuant to a Letter of Credit.
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“LC
Exposure” means, at any time, the sum of (a) the Syndicated LC Exposure at such time plus (b) the Fronted
LC Exposure at such time. The LC Exposure of any Bank shall at any time be the sum of (a) its Syndicated LC Exposure at such time
plus (b) its Fronted LC Exposure at such time.
“LC
Reimbursement Loan” means a Loan the proceeds of which are used solely to finance the reimbursement of LC Disbursements as
contemplated by Section 2.03(a).
“LC
Sublimit” means $500,000,000.
“Lender-Related
Person” has the meaning set forth in Section 9.03(c).
“Letter
of Credit” means each letter of credit issued under Section 2.01 and shall include each Syndicated Letter of Credit and
Fronted Letter of Credit.
“Liabilities”
means any losses, claims (including intraparty claims), demands, damages, penalties or liabilities of any kind.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company or any Subsidiary shall be deemed to own subject to a Lien any asset which it
has acquired or beneficially holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
“Loan”
means a Base Rate Loan or a Term SOFR Loan and “Loans” means Base Rate Loans or Term SOFR Loans or any combination
of the foregoing.
“Margin
Stock” has the meaning given to it in Regulations T, U and X.
“Material
Adverse Effect” means a material adverse effect on (a) the financial condition of the Company and its Consolidated Subsidiaries,
taken as a whole or (b) the validity or enforceability of any of the Credit Documents or the material rights and remedies of the
Banks under the Credit Documents.
“Material
Subsidiary” means (a) any Subsidiary that has total assets (including, without limitation, Capital Stock of its Subsidiaries)
in excess of 10% of the total assets of the Company and its Consolidated Subsidiaries (based upon and as of the date of the filing of
the most recent consolidated balance sheet of the Company delivered pursuant to Sections 4.04 or 5.01) and (b) any Subsidiary of
the Company whose Subsidiaries include one or more Material Subsidiaries. In the event that the aggregate total assets of the Material
Subsidiaries represents less than 80% of the consolidated total assets of the Company and its Consolidated Subsidiaries (as reported
on the Company’s most recent consolidated balance sheet furnished pursuant to Sections 4.04 or 5.01), the Company shall promptly
designate by written notice to the Administrative Agent an additional Subsidiary or Subsidiaries as Material Subsidiaries in order that,
after such designation, the aggregate total assets of the Material Subsidiaries represent at least 80% of the consolidated total assets
of the Company and its Consolidated Subsidiaries (as reported on the Company’s most recent consolidated balance sheet furnished
pursuant to Sections 4.04 or 5.01).
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“Material
Unpaid Derivative Product Indebtedness” means, at any time, any obligations of the Company or any of its Material Subsidiaries
then due and payable by the Company or any of its Material Subsidiaries in respect of one or more swap contracts (giving effect to any
legally enforceable netting agreements) as a result of such swap contracts being terminated, accelerated or closed-out by the counter-party
prior to the scheduled termination of such swap contracts (an “Early Termination”), where such Early Termination was
the result of an event of default or other similar breach of such swap contracts attributable to the Company or any of its Material Subsidiaries.
“Maturity
Date” means June 30, 2031 (or, if such day is not a Domestic Business Day, the immediately preceding Domestic Business
Day), as such date may be extended pursuant to Section 2.18.
“Maturity
Date Extension Request” means a request by the Company, in the form of Exhibit F hereto or such other form as shall
be approved by the Administrative Agent, for the extension of the Maturity Date pursuant to Section 2.18.
“Maximum
Rate” has the meaning set forth in Section 9.19.
“Moody’s”
means Moody’s Investors Service, Inc.
“Multiemployer
Plan” means, at such time that is otherwise applicable under the specific provisions of this Agreement, an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing
an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such five-year period.
“NAIC”
means the National Association of Insurance Commissioners and any successor thereto.
“NAIC
Approved Bank” means (a) any Bank that is a bank listed on the most current “List of Qualified U.S. Financial Institutions”
approved by the NAIC (the “NAIC Approved Bank List”) (or any branch or related entity of such bank that qualifies
as a Qualified U.S. Financial Institution in accordance with the Purposes and Procedures Manual of the NAIC Investment Analysis Office)
or (b) any Bank as to which its Confirming Bank is a bank listed on the NAIC Approved Bank List (or any branch or related entity
of such Bank that qualifies as a Qualified U.S. Financial Institution in accordance with the Purposes and Procedures Manual of the
NAIC Investment Analysis Office).
“NAIC
Approved Bank List” has the meaning set forth in the definition of “NAIC Approved Bank”.
“NAIC-Compliant
Provisions” has the meaning set forth in Section 2.01.
“Non-Consenting
Bank” means any Bank that does not approve any consent, waiver or amendment that (a) requires the approval of each Bank,
each affected Bank or each directly and
17
adversely
affected Bank in accordance with the terms of Section 9.05 and (b) has been approved by the Required Banks.
“Non-Defaulting
Banks” means any Bank that is not a Defaulting Bank.
“Non-Extension
Notice” has the meaning set forth in Section 2.01(a).
“Non-NAIC
Approved Bank” means, at any time, any Bank that is not a NAIC Approved Bank.
“Non-Operating
Indebtedness” of any Person means, at any date, all Debt (other than Operating Indebtedness) of such Person.
“Non-Pro
Rata Issuance Election” means an election by the Company to have a Syndicated Letter of Credit issued, extended or amended
on an adjusted pro rata basis, as more fully described in clause (d) of Section 2.16.
“Notes”
means a promissory note or notes of the Company, substantially in the form of Exhibit A hereto, evidencing the obligation
of the Company to repay the Loans made to it hereunder, and “Note” means any one of such promissory notes issued hereunder.
“Notice
of Borrowing” has the meaning set forth in Section 2.05(a).
“NY
UCC” has the meaning set forth in Section 2.03(e).
“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties of, any Obligor arising under any Credit Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement
by or against any Obligor or any Affiliate thereof of any proceeding under any bankruptcy, insolvency or similar laws affecting creditors’
rights generally naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding.
“Obligor”
means each of the Company and each Subsidiary Account Party.
“Operating
Indebtedness” of any Person means, at any date, without duplication, any Debt of such Person (a) in respect of or supporting
(including any Guarantee of Debt in respect thereof) life and annuity reserve requirements, (b) incurred in connection with repurchase
agreements and securities lending, (c) to the extent the proceeds of which are used directly or indirectly (including for the purpose
of funding portfolios that are used to fund trusts in order) to support life and annuity reserve requirements, (d) to the extent
the proceeds of which are used to fund discrete customer-related assets or pools of assets (and related hedge instruments and capital)
that are at least notionally segregated from other assets and have sufficient cash flow to pay principal and interest thereof, with insignificant
risk of other assets of the Company and its Subsidiaries being called upon to make such principal and interest payments, (e) excluded
entirely from financial leverage by both S&P and Moody’s in their evaluation of such person, (f) consisting of loans and
other
18
obligations
owing to Federal Home Loan Banks or (g) incurred by a separated account maintained by an Insurance Subsidiary for which there is
no recourse to the Company or any other Subsidiary.
“Ownership
Interests” has the meaning set forth in Section 5.08.
“Parent”
means, with respect to any Bank, any Person as to which such Bank is, directly or indirectly, a subsidiary.
“Participant”
has the meaning set forth in Section 9.06(b).
“Participant
Register” has the meaning set forth in Section 9.06(b).
“PATRIOT
Act” means Title III of Pub. L. 107-56 (signed into law October 26, 2001), as amended.
“Payment
Account” means an account designated by the Administrative Agent in a notice to the Company and the Banks to which payments
hereunder are to be made.
“Payment
Receipt” has the meaning set forth in Section 7.12(a).
“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“Permitted
Liens” means:
(a) Liens
existing on the Effective Date and listed on Schedule V and any modifications, replacements, renewals, refinancings or extensions
thereof; provided, that (i) the Lien does not extend to any additional property other than (a) after-acquired property
that is affixed or incorporated into the property covered by such Lien and (b) proceeds and products thereof, accessions thereto
and improvements thereon and (ii) the replacement, refunding, renewal, extension or refinancing of the obligations secured or benefited
by such Liens, to the extent constituting Debt, is not prohibited under this Agreement.
(b) Liens
for Taxes that are not overdue for a period of more than thirty (30) days or not yet payable or subject to penalties for nonpayment or
which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the
books of the Company in accordance with GAAP;
(c) statutory
or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or
other like Liens that secure amounts not overdue for a period of more than sixty (60) days or if more than sixty (60) days overdue, that
are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate actions
diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required
in accordance with GAAP (as determined by the Company in good faith);
(d) (i) pledges
or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social
security legislation and (ii)
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pledges
and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations
in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance
or self-insurance to the Company or any of its Subsidiaries;
(e) Liens
incurred or pledges or deposits made to secure the performance of bids, tenders, sales contracts, trade contracts and leases (other than
Debt for borrowed money), statutory and other obligations required by law, surety, stay, customs and appeal bonds, performance bonds
and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) letters
of credit and bank guarantees required or requested by any Governmental Authority in connection with any contract or Law) incurred in
the ordinary course of business;
(f) Liens
securing judgments or orders for the payment of money that do not constitute an Event of Default under Section 6.01(j);
(g) easements,
zoning restrictions, rights-of-way, encroachments, protrusions and similar encumbrances and other minor title defects affecting real
property that do not in the aggregate materially interfere with the ordinary conduct of business of the Company or the Material Subsidiaries
taken as a whole;
(h) Liens
solely on any cash earnest money deposits made by the Company or any Material Subsidiary in connection with any letter of intent or purchase
agreement not prohibited hereunder;
(i) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(j) Liens
(i) arising by operation of law under Article 4 of the NY UCC in connection with the collection of items provided for therein
and (ii) in favor of a banking or other financial institutions arising as a matter of law or under customary general terms and conditions
encumbering deposits or other funds maintained with a financial institution (including rights of set-off) and which are within the general
parameters customary in the banking industry or arising pursuant to such financial institution’s general terms and conditions;
(k) any
assignment of an account or chattel paper (i) as part of the sale of the business out of which such account or chattel paper arose,
(ii) for the purpose of collection only, (iii) under a contract to an assignee who is also obligated to perform under such
contract or (iv) in whole or partial satisfaction of pre-existing Debt;
(l) leases,
licenses, subleases or sublicenses granted to others which do not interfere in any material respect with the business of the Company
and its Subsidiaries, taken as a whole;
(m) Liens
(i) on cash advances or cash equivalents in favor of (x) the seller of any property to be acquired and to be applied against
the purchase price for such investment or (y) the buyer of any property to be disposed of, or to secure obligations in respect of
indemnification,
20
termination
fee or similar seller obligations and (ii) consisting of an agreement to dispose of any property, in each case, solely to the extent
such investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(n) Liens
consisting of any (i) interest or title of a lessor, sublessor, licensor or sublicensor under leases, subleases, licenses or sublicenses
entered into by the Company or any of its Subsidiaries in the ordinary course of business, or with respect to intellectual property that
is not material to the conduct of the business or consistent with past practice of the Company and its Subsidiaries, taken as a whole,
(ii) landlord lien arising under the terms of any lease, (iii) restriction or encumbrance to which the interest or title of
such lessor or sub-lessor may be subject, (iv) subordination of the interest of the lessee or sub-lessee under such lease to any
restriction or encumbrance referred to in the preceding clause (iii) and (v) condemnation or eminent domain proceeding or compulsory
purchase order affecting real property;
(o) Liens
deemed to exist in connection with investments in repurchase agreements;
(p) Liens
that are contractual rights of set-off or rights of pledge (i) relating to the establishment of depository relations with banks
not given in connection with the issuance of Debt or (ii) relating to pooled deposit or sweep accounts of the Company or any of
its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company
or any of its Subsidiaries;
(q) ground
leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located;
(r) (i) zoning,
building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies,
and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of
any real property that does not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries, taken
as a whole;
(s) Liens
arising from precautionary Uniform Commercial Code financing statement or similar filings;
(t) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) deposits
of cash with the owner or lessor of premises leased and operated by the Company or any of its Subsidiaries in the ordinary course of
business of the Company and such Subsidiary or consistent with past practice to secure the performance of the Company’s or such
Subsidiary’s obligations under the terms of the lease for such premises;
(v) security
given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with
the operations of that Person in the ordinary course of business or consistent with past practice;
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(w) Liens
on any funds or securities held in escrow accounts established for the purpose of holding proceeds from issuances of debt securities
by the Company or any of its Subsidiaries issued after the Effective Date, together with any additional funds required in order to fund
any mandatory redemption or sinking fund payment on such debt securities within 360 days of their issuance; provided that such
Liens do not extend to any assets other than such proceeds and such additional funds;
(x) any
encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement
pursuant to any joint venture or similar agreement;
(y) Liens
on property or assets under construction (and related rights) in favor of a contractor or developer arising in the ordinary course of
business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(z)
Liens pursuant to any Credit Document otherwise securing Secured Obligations; and
(aa) Liens
on assets of any Subsidiary acquired after the Effective Date, or existing on any asset acquired by the Company or any Subsidiary at
the time such asset is acquired (whether or not the Debt secured thereby is assumed) provided that such Liens existed prior to
such Person becoming a Subsidiary of the Company or asset acquired, were not created in anticipation thereof and do not extend to any
assets other than those of such Subsidiary or acquired assets and proceeds and products thereof, accessions thereto and improvements
thereon, and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or
is acquired for specific use in connection with such acquired property.
“Permitted
Refinancing” means, with respect to any Debt, any modification, refinancing, refunding, renewal, replacement or extension of
such Debt; provided, that the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount
(or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal
to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection
with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any existing commitments
unutilized thereunder.
“Person”
means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Plan”
means, at such time that is otherwise applicable under the specific provisions of this Agreement, an employee pension benefit plan (other
than a Multiemployer Plan) covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA
Group or (ii) has at any time within the preceding five years been
22
maintained,
or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time
a member of the ERISA Group.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
“Qualified
Capital Stock” means Capital Stock that is not Disqualified Capital Stock.
“Quarterly
Dates” means the last day of March, June, September and December in each year, the first of which shall be the first
such day after the Effective Date.
“Register”
has the meaning set forth in Section 2.07(b).
“Regulation
S-X” means Regulation S-X promulgated under the Securities Act of 1933, as amended from time to time, and as interpreted by
the SEC.
“Regulations
T, U and X” means Regulations T, U and X, respectively, of the Board, in each case as in effect from time to time.
“Related
Party” or “Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Rescindable
Amount” has the meaning set forth in Section 2.13(f).
“Required
Banks” means at any time Banks having Loans and Commitments representing more than 50% of the aggregate amount of the Loans
and Commitments at such time; provided that, if the Commitments have expired or been terminated, “Required Banks”
means Banks having more than 50% of the aggregate amount of the Credit Exposures of the Banks at such time; provided, further,
that the portion of any Loans and Commitments held by any Defaulting Bank shall be excluded for the purposes of making a determination
of Required Banks.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“S&P”
means Standard and Poor’s Ratings Services.
“Sanctions”
means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and restrictions, and anti-terrorism
Laws, including but not limited to those imposed, administered or enforced from time to time by the U.S. government (including the U.S.
Department of the Treasury’s Office of Foreign Assets Control, or the U.S. Department of State), the United Nations Security Council,
the European Union, any European Union member state, the United Kingdom, or other relevant Governmental Authority.
“SAP”
means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner
(or other similar authority) from time to time in the jurisdiction of incorporation of such Insurance Subsidiary for the preparation
of annual
23
statements
and other financial reports by insurance companies of the same type as such Insurance Subsidiary.
“Sanctioned
Jurisdiction” means at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of restricted Persons maintained by the
United States (including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S.
Department of State), the United Nations Security Council, the European Union, any European Union member state, the United Kingdom, or
other relevant Governmental Authority, (b) any Person located, organized or resident in a Sanctioned Jurisdiction, (c) any
Person directly or indirectly, individually or in the aggregate, 50% or more owned or (where relevant under applicable Sanctions) controlled
by, or acting or purporting to act for or on behalf of, any such Person or Persons described in clauses (a) and/or (b), or (d) any
Person or vehicle otherwise a target of Sanctions.
“Scheduled
Unavailability Date” has the meaning specified in Section 8.01(b)(ii).
“SEC”
means Securities and Exchange Commission or any governmental body, agency or official succeeding to its principal functions.
“Secured
Obligations” has the meaning set forth in Section 2.03(e).
“SOFR”
means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“Statutory
Statement” means a statement of the condition and affairs of an Insurance Subsidiary, prepared in accordance with accounting
procedures and practices prescribed or permitted by an applicable insurance regulatory authority or the NAIC, as modified in accordance
with permitted practices approved by an applicable insurance regulatory authority, and filed with an applicable insurance regulatory
authority or the NAIC.
“Subsidiary”
means any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the Company,
but excluding the Investment Entities.
“Subsidiary
Account Party” means each direct or indirect Subsidiary of the Company listed on the signature pages hereto under the
heading “SUBSIDIARY ACCOUNT PARTIES” (if any), and each other direct or indirect Subsidiary of the Company that becomes a
Subsidiary Account Party in accordance with the terms of Section 9.13, in each case, until such time as such Subsidiary ceases to
be a Subsidiary Account Party in accordance with the terms of Section 9.13.
“Subsidiary
Joinder Agreement” means a joinder to this Agreement, substantially in the form of Exhibit G.
“Successor
Rate” has the meaning specified in Section 8.01(b).
24
“Syndicated
LC Cash Collateral” has the meaning set forth in Section 2.16(b)(ii).
“Syndicated
LC Collateral Account” has the meaning set forth in Section 2.16(b)(ii).
“Syndicated
LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Syndicated Letters of
Credit at such time plus (b) the aggregate amount of all LC Disbursements under Syndicated Letters of Credit that have not
yet been reimbursed by or on behalf of the relevant Obligor at such time. The Syndicated LC Exposure of any Bank shall at any time be
its Applicable Percentage of the total Syndicated LC Exposure at such time.
“Syndicated
Letter of Credit” means a single multi-bank letter of credit issued by all of the Banks (acting through the Administrative
Agent in accordance with the provisions hereof) in which each Bank (or less than all Banks, if the Company has made a Non-Pro Rata Issuance
Election with respect to such Syndicated Letters of Credit), as an issuing bank thereunder, has a several (but not joint) obligation
in respect of a specified portion of the amount of such letter of credit.
“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions, withholdings (including backup withholdings), assessments,
fees or other charges of any nature, imposed by a Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.
“Term
SOFR” means:
(a) for
any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government
Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided,
that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate
on the first U.S. Government Securities Business Day immediately prior thereto; and
(b) for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term
of one month commencing that day;
provided
that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise
be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement.
“Term
SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term
SOFR Replacement Date” has the meaning specified in Section 8.01(b)(ii).
“Term
SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory
to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing
such quotations as may be designated by the Administrative Agent from time to time).
25
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the Loan is a Base Rate Loan or a Term SOFR Loan.
“UK
Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the
resolution of any UK Financial Institution.
“U.S.
Government Securities Business Day” means any Domestic Business Day, except any Domestic Business Day on which any of the Securities
Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business
because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“Wells
Fargo” means Wells Fargo Bank, National Association, a national banking association.
“Write-Down
and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of
such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
SECTION 1.02.
Other Definitions and Provisions. With reference
to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document: (a) the definitions
of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will”
shall be construed to have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (f) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (g) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,
26
including
cash, securities, accounts and contract rights, (i) the term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic
form and (j) in the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including”.
SECTION 1.03.
Accounting Terms and Determinations. All accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP (or, to the extent such terms apply solely to any Insurance Subsidiary,
or if otherwise expressly required, SAP), as in effect from time to time, applied in a consistent manner, except as otherwise specifically
prescribed herein.
(a) If
at any time any change in GAAP or SAP would affect the computation of any requirement set forth in any Credit Document, and either the
Company or the Required Banks shall so request, the Administrative Agent, the Banks and the Company shall negotiate in good faith to
amend such requirement to preserve the original intent thereof in light of such change in GAAP or SAP (subject to the approval of the
Required Banks); provided that, until so amended, (i) such requirement shall continue to be computed in accordance with GAAP
or SAP, as applicable, as in effect prior to such change therein and (ii) the Company shall provide to the Administrative Agent
and the Banks financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such requirement made before and after giving effect to such change in GAAP or SAP, as applicable.
SECTION 1.04.
Rounding. Any financial ratios required to be
maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio or percentage is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05.
References to Agreement and Laws. Unless otherwise
expressly provided herein, (a) any definition or reference to formation documents, governing documents, agreements (including the
Credit Documents) and other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements
and other modifications are not prohibited by any Credit Document; and (b) any definition or reference to any applicable Laws, including,
without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws, the Code, ERISA, the Exchange Act, the PATRIOT Act, the Securities
Act, shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such applicable
Laws and any reference to any applicable Laws shall, unless otherwise specified, refer to such applicable Law as amended, modified or
supplemented from time to time.
SECTION 1.06.
Times of Day. Unless otherwise specified, all
references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). Unless otherwise
27
specified,
to the extent any obligation is required to be paid or performed hereunder on a date that is not a Domestic Business Day, the date for
payment or performance shall be construed to be required on the immediately succeeding Domestic Business Day.
SECTION 1.07.
Types of Borrowings. The term “Borrowing”
denotes the aggregation of Loans to be made to the Company pursuant to Section 2.04, or converted or continued pursuant to Section 2.05(b),
on a single date and for a single Interest Period. Borrowings are classified for purposes of this Agreement by reference to the pricing
of Loans comprising such Borrowing (e.g., a “Term SOFR Borrowing” is a Borrowing comprised of Term SOFR Loans).
SECTION 1.08.
Divisions. For all purposes under the Credit
Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s
laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person
comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its
Capital Stock at such time.
SECTION 1.09.
Interest Rates. The Administrative Agent does
not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission
or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt,
the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any
such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the
foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions
or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including,
without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto,
in each case, in a manner adverse to the Company. The Administrative Agent may select information sources or services in its reasonable
discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation,
any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have
no liability to the Company, any Bank or any other person or entity for damages of any kind, including direct or indirect, special, punitive,
incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),
for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component
thereof) provided by any such information source or service.
SECTION 1.10.
Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its terms, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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Article II
THE
CREDITS
SECTION 2.01.
Letters of Credit; General. Subject to the terms
and conditions set forth herein, at the request of any Obligor at any time and from time to time during the Commitment Availability Period,
(i) each Bank agrees to issue Syndicated Letters of Credit and (ii) each Fronting Issuing Bank agrees to issue Fronted Letters
of Credit, in each case denominated in Dollars for the account of such Obligor, that will not result in (w) the aggregate outstanding
amount of the Credit Exposures of the Banks exceeding the aggregate amount of the Commitments of the Banks, (x) the aggregate outstanding
amount of the Credit Exposure of such Bank exceeding the aggregate amount of the Commitment of such Bank, (y) the aggregate outstanding
amount of the LC Exposures of the Banks exceeding the LC Sublimit, and (z) with respect to Fronted Letters of Credit, the aggregate
undrawn face amount of Fronted Letters of Credit issued by such Fronting Issuing Bank plus the aggregate amount of unreimbursed
LC Disbursements in respect of Fronted Letters of Credit issued by such Fronting Issuing Bank exceeding its Fronted LC Commitment. For
the avoidance of doubt, the relevant Obligor may elect whether a Letter of Credit issued pursuant to this Section 2.01 shall be
a Syndicated Letter of Credit or, if any Bank has agreed in its sole discretion to become a Fronting Issuing Bank, a Fronted Letter of
Credit.
Each
Syndicated Letter of Credit shall be a standby letter of credit in substantially the form attached hereto as Exhibit B, with
such changes therein as may be requested by the relevant Obligor, so long as (i) the Administrative Agent determines such changes
are acceptable and not adverse to the Banks or (ii) the Required Banks approve such changes. Notwithstanding the foregoing, subject
to the terms and conditions of this Agreement, if the relevant Obligor requests that a Letter of Credit include additional provisions
(or revisions to the form attached hereto as Exhibit B) in order to satisfy the requirements for letters of credit under
credit-for-reinsurance provisions in the jurisdiction of organization of the beneficiary of such Letter of Credit with respect to reinsurance
reserve credit requirements by providing written notice to the Administrative Agent at least five Domestic Business Days prior to issuance
of such Letter of Credit (or such shorter time as may be agreed by the Administrative Agent) specifying the requested additional provisions
and a summary of the reasons therefor, such Letter of Credit shall include such requested or revised provisions (such provisions, “NAIC-Compliant
Provisions”) unless the issuance of such Letter of Credit with any such NAIC-Compliant Provisions would, in the reasonable
judgment of the Administrative Agent or any Bank having Commitments under such Letter of Credit, materially increase the potential liability
of the Administrative Agent or such Bank, and the Company or the relevant Subsidiary Account Party has not otherwise agreed to compensate
the Administrative Agent or such Bank for any such increased liability in a manner reasonably acceptable to the Administrative Agent
or such Bank. None of the Administrative Agent or any Bank shall be obligated to verify that any requested NAIC-Compliant Provisions
satisfy such requirements for reserve credit.
Without
the prior consent of each Bank, no Syndicated Letter of Credit may be issued that would vary the several and not joint nature of the
obligations of the Banks thereunder, and each Syndicated Letter of Credit shall be issued by all of the Banks having Commitments at the
time of issuance (or less than all Banks, if the Company has made a Non-Pro Rata Issuance Election with respect to such Syndicated Letters
of Credit or the LC Exposure in respect of such
29
Syndicated
Letter of Credit has been reallocated pursuant to Section 2.17(d)(ii)) as a single multi-bank letter of credit, but the obligation
of each Bank thereunder shall be several and not joint, based upon its Applicable Percentage (or other applicable share if the Company
has made a Non-Pro Rata Issuance Election with respect to such Syndicated Letters of Credit) of the aggregate undrawn amount of such
Letter of Credit.
Each
Fronted Letter of Credit shall be a standby letter of credit in such form as is agreed upon among the relevant Obligor and the applicable
Fronting Issuing Bank at the time such Fronting Issuing Bank is appointed hereunder, which such form shall be reasonably acceptable to
the Administrative Agent. Each Fronted Letter of Credit shall be issued by, and be the sole obligation as issuing bank of, the applicable
Fronting Issuing Bank (without impairing each Bank’s participation obligations with respect thereto). No Bank shall have any obligation
hereunder to become a Fronting Issuing Bank hereunder and any election to do so shall be in the sole discretion of each Bank. Notwithstanding
anything herein to the contrary, any addition or removal of a Fronting Issuing Bank hereunder or change in its Fronted LC Commitment
may be effected only with the agreement of such Fronting Issuing Bank and the Company (and with the consent of Administrative Agent (such
consent not to be unreasonably withheld)) (provided, that no such change shall increase the Commitment of any Bank).
Notwithstanding
the prior paragraph, subject to the terms and conditions of this Agreement, if an Obligor provides a written request to the Administrative
Agent and the Fronting Issuing Bank at least five Domestic Business Days prior to the issuance of any Fronted Letter of Credit (or such
shorter period as may be agreed to by the Administrative Agent and the Fronting Issuing Bank) that a Fronted Letter of Credit include
NAIC-Compliant Provisions, specifying such NAIC-Compliant Provisions and providing a summary of the reasons therefor, then such Fronted
Letter of Credit shall include such requested provisions, unless the issuance of such Fronted Letter of Credit with any such NAIC-Compliant
Provisions would, in the reasonable judgment of the Administrative Agent or the applicable Fronting Issuing Bank, materially increase
the potential liability of the Administrative Agent or such Fronting Issuing Bank and the Company or the relevant Subsidiary Account
Party has not otherwise agreed to compensate the Administrative Agent or such Fronting Issuing Bank for any such increased liability
in a manner reasonably acceptable to the Administrative Agent or such Fronting Issuing Bank. None of the applicable Fronting Issuing
Bank, the Administrative Agent or the Banks shall be obligated to verify that any requested NAIC-Compliant Provisions satisfy such requirements
for reserve credit.
(a) Notice
of Issuance, Amendment, Renewal or Extension. To request the issuance of a Letter of Credit (or the amendment, renewal or extension
of an outstanding Letter of Credit), the relevant Obligor shall hand deliver (or transmit by electronic communication, if arrangements
for doing so have been approved by the Administrative Agent) to the Administrative Agent and (in the case of a Fronted Letter of Credit)
the applicable Fronting Issuing Bank, not later than noon (New York City time) two Domestic Business Days (or such shorter time as the
Administrative Agent or the applicable Fronting Issuing Bank may agree in a particular instance in their sole discretion) prior to the
requested date of issuance, amendment, renewal or extension, a notice, substantially in the form of Exhibit C-1 hereto (or
such other form as may be agreed between such Obligor and the Administrative Agent and (in the case of a Fronted Letter of Credit) the
applicable Fronting Issuing Bank), requesting the issuance of a Syndicated Letter of Credit or Fronted Letter of Credit, or identifying
the Letter of Credit to be amended, renewed or extended,
30
and
specifying the date of issuance, amendment, renewal or extension, as the case may be (which shall be a Domestic Business Day), the date
on which such Letter of Credit is to expire (which shall comply with Section 2.01(c)), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and the terms and conditions of (and such other information as shall be necessary to prepare,
amend, renew or extend, as the case may be) such Letter of Credit (which shall comply with Section 2.01(a)).
If
requested by the Administrative Agent or (in the case of any Fronted Letter of Credit) the applicable Fronting Issuing Bank through the
Administrative Agent, the relevant Obligor also shall submit a letter of credit application on standard form of the Person that is serving
as Administrative Agent or such Fronting Issuing Bank, as applicable, in connection with any request for a Letter of Credit. The standard
form letter of credit application of the Administrative Agent is attached hereto as Exhibit C-2. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the relevant Obligor to, or entered into by such Obligor with, the Person that is serving as Administrative Agent
or such Fronting Issuing Bank, as applicable, relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
Unless
otherwise specified by the relevant Obligor, each Letter of Credit shall provide for the automatic extension for successive one year
periods of the then-current expiry date thereof unless the Administrative Agent or, in the case of any Fronted Letter of Credit, the
applicable Fronting Issuing Bank shall give notice to the beneficiary thereof on or before the date that is 60 days prior to the stated
expiration date (or such shorter or longer period of time as may be agreed with the Company by the Administrative Agent or the applicable
Fronting Issuing Bank, as applicable) that such expiry date shall not be extended (each such Letter of Credit, an “Evergreen
Letter of Credit” and such notice, a “Non-Extension Notice”) (it being understood and agreed that, notwithstanding
any provision of this Agreement to the contrary, the extension of an Evergreen Letter of Credit upon an automatic extension shall not
require any notice or request to be delivered under Section 2.01(b) or under such Letter of Credit); provided, that
the Administrative Agent or such Fronting Issuing Bank, as applicable, will give a Non-Extension Notice under such Evergreen Letter of
Credit in accordance with its terms if requested to do so by notice given to the Administrative Agent or such Fronting Issuing Bank (through
the Administrative Agent) by (i) at any time a Default shall have occurred and be continuing, the Required Banks, (ii) at any
time on or after the date that the Commitments are terminated, any Bank or (iii) the relevant Obligor; provided, further,
that each Letter of Credit shall by its terms expire no later than one year after the Maturity Date with a properly executed Non-Extension
Notice.
(b) Limitations
on Amounts and Daily Transactions. Each Letter of Credit shall be issued, amended, renewed or extended if and only if (and upon such
issuance, amendment, renewal or extension of each Letter of Credit the Company shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension, (x) the aggregate outstanding amount of the Credit Exposures of
the Banks shall not exceed the aggregate amount of the Commitments of the Banks and (y) the aggregate outstanding amount of the
LC Exposures of the Banks shall not exceed the LC Sublimit.
31
(c) Expiry
Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (provided, that each Letter of Credit shall contain “evergreen”
provisions for the extension thereof to a date not later than one year after the then current expiry date thereof) or (ii) the first
anniversary of the Maturity Date with a properly executed Non-Extension Notice. The Company shall cause any Letter of Credit outstanding
on or after the date that is five Domestic Business Days prior to the Maturity Date to be cash collateralized in an amount equal to at
least 102% of the face amount of each such Letter of Credit in accordance with Section 2.03(e) on or prior to such date and
for so long as such Letter of Credit is outstanding.
(d) Obligation
of Banks. With respect to any Syndicated Letter of Credit, the obligation of any Bank under such Syndicated Letter of Credit shall
be several and not joint and shall at any time be in an amount equal to such Bank’s Applicable Percentage (or other applicable
share if the Company has made a Non-Pro Rata Issuance Election with respect to such Syndicated Letters of Credit) of the aggregate undrawn
amount of such Letter of Credit, and each Syndicated Letter of Credit shall expressly so provide.
By
the issuance of a Fronted Letter of Credit (or an amendment to a Fronted Letter of Credit increasing the amount thereof) by any Fronting
Issuing Bank, and without any further action on the part of any Fronting Issuing Bank or the Banks, the applicable Fronting Issuing Bank
hereby grants to each Bank, and each Bank hereby acquires from such Fronting Issuing Bank, a participation in such Fronted Letter of
Credit equal to such Bank’s Applicable Percentage of the aggregate amount available to be drawn under such Fronted Letter of Credit.
Each Bank acknowledges and agrees that its obligation to acquire participations in respect of Fronted Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Fronted
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments; provided, that
no Bank shall be required to acquire a participation in a Fronted Letter of Credit to the extent that such participation would result
in the aggregate outstanding amount of the Credit Exposure of such Bank exceeding the aggregate amount of the Commitment of such Bank.
In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for account of the applicable Fronting Issuing Bank, such Bank’s Applicable Percentage of each LC Disbursement made by such
Fronting Issuing Bank in respect of any Fronted Letter of Credit, promptly upon the request of such Fronting Issuing Bank at any time
from the time such LC Disbursement is made until such LC Disbursement is reimbursed by the relevant Obligor or (pursuant to the guarantee
obligations under Section 2.01(g)) the Company or at any time after any reimbursement payment is required to be refunded to the
Company or such Obligor for any reason. Such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Promptly following receipt by the Administrative Agent of any payment from the relevant Obligor or (pursuant to the guarantee obligations
under Section 2.01(g)) the Company pursuant to Section 2.03(a) in respect of any Fronted Letter of Credit, the Administrative
Agent shall distribute such payment to the applicable Fronting Issuing Bank or, to the extent that the Banks have made payments pursuant
to this paragraph to reimburse such Fronting Issuing Bank, then to the Banks and such Fronting Issuing Bank as their interests may appear.
Any payment made by a Bank pursuant to this paragraph to reimburse the applicable Fronting Issuing Bank for any LC Disbursement shall
not relieve the Subsidiary Account Party of its obligation to reimburse such LC Disbursement.
32
(e) Adjustment
of Applicable Percentages. Upon (i) each addition of a new Bank hereunder and (ii) each change in the Commitment of a Bank
pursuant to this Agreement then (A) in the case of each outstanding Syndicated Letter of Credit, with the consent of the beneficiary
thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices
for Documentary Credits governing such Syndicated Letter of Credit), the Administrative Agent shall promptly amend such Syndicated Letter
of Credit to specify the Banks that are parties thereto, after giving effect to such event, and such Banks’ respective Applicable
Percentages (or other applicable share if the Company has made a Non-Pro Rata Issuance Election with respect to such Syndicated Letters
of Credit) as of the effective date of such amendment and (B) in the case of each outstanding Fronted Letter of Credit, the participation
interest of each Bank therein shall automatically be adjusted to reflect, and each Bank shall have a participation in such Fronted Letter
of Credit equal to, such Bank’s Applicable Percentage of the aggregate amount available to be drawn under such Fronted Letter of
Credit after giving effect to such event. However, it is acknowledged by the Administrative Agent and the Banks that amendments of outstanding
Syndicated Letters of Credit may not be immediately effected. Accordingly, whether or not Syndicated Letters of Credit are amended as
contemplated hereby, the Banks agree that they shall purchase and sell participations or otherwise make or effect such payments among
themselves (but through the Administrative Agent) so that payments by the Banks of drawings under Syndicated Letters of Credit and payments
by the Company or a Subsidiary Account Party of LC Disbursements and interest thereon are, except as otherwise expressly set forth herein,
in each case shared by the Banks in accordance with the respective Applicable Percentages (or other applicable shares if the Company
has made a Non-Pro Rata Issuance Election with respect to such Syndicated Letters of Credit) of the Banks from time to time in effect.
(f)
Conditions to Issuance. None of the Fronting Issuing Bank, the Administrative Agent nor any Bank shall have
any obligation to issue Letters of Credit, so long as:
(i)
Any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain
the Fronting Issuing Bank, the Administrative Agent or any Bank from issuing such Letter of Credit;
(ii) Any
law applicable to such Fronting Issuing Bank, the Administrative Agent or any Bank or any request or directive (whether or not having
the force of law) from any governmental authority with jurisdiction over such Fronting Issuing Bank, the Administrative Agent or such
Bank shall prohibit, or request that such Fronting Issuing Bank, the Administrative Agent or such Bank refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall impose upon such Fronting Issuing Bank, the Administrative
Agent or such Bank with respect to any such Letter of Credit any restriction, reserve or capital requirement (for which such Fronting
Issuing Bank, the Administrative Agent or such Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon such Fronting Issuing Bank, the Administrative Agent or such Bank any unreimbursed loss, cost or expense which was not applicable
on the Effective Date and which such Fronting Issuing Bank, the Administrative Agent or such Bank in good faith deems material to it;
33
(iii) Except
as otherwise agreed by such Fronting Issuing Bank or the Administrative Agent, as applicable, such Letter of Credit is in an initial
amount less than $1,000,000;
(iv) Such
Letter of Credit is to be denominated in a currency other than US Dollars;
(v) Such
Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(vi) If
such Letter of Credit is a Fronted Letter of Credit, and any Bank is a Defaulting Bank, after giving effect to the reallocation of such
Defaulting Bank’s participation among the Non-Defaulting Banks as set forth in Section 2.17 to the extent of their respective
Commitments, unless the relevant Obligor has delivered cash collateral or the Fronting Issuing Bank has entered into other arrangements
with such Obligor or such Defaulting Bank satisfactory to the Fronting Issuing Bank to eliminate the applicable Fronting Issuing Bank’s
risk with respect to such Defaulting Bank.
(g) Letters
of Credit Issued for Subsidiaries. The Company, as guarantor pursuant to the provisions of this Section 2.01(g), shall be obligated
to pay each LC Disbursement and accrued interest thereon and all other payment obligations with respect to each Letter of Credit that
is issued or outstanding hereunder for the account of any Subsidiary Account Party, including amounts payable as cash collateral pursuant
to Sections 2.01(c), 2.03(f), 2.17 or 6.01. The Company hereby acknowledges that the issuance of Letters of Credit for the account of
any of the Subsidiary Account Parties inures to the benefit of the Company, and that the Company’s business derives substantial
benefits from the businesses of such Subsidiary Account Parties. The Company hereby unconditionally guarantees the full and punctual
payment of all reimbursement obligations in respect of LC Disbursements and all interest thereon payable by each Subsidiary Account Party
pursuant to this Agreement and the full and punctual payment of all other amounts payable by each Subsidiary Account Party under this
Agreement, including any fee pursuant to Section 2.10. Upon failure by any Subsidiary Account Party to pay when due any such amount,
the Company shall forthwith pay the amount not so paid at the place and in the manner specified in this Agreement. The agreement of the
Company under this clause (g) is a continuing guarantee and shall apply to all obligations of the Subsidiary Account Parties under
this Agreement whenever arising, and is a guarantee of payment and is not merely a guarantee of collection. The obligations of the Company
hereunder shall be unconditional, absolute and continuing and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by: (i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation
of any Subsidiary Account Party by operation of law or otherwise; (ii) any modification or amendment of or supplement to this Agreement;
(iii) any change in the corporate existence, structure or ownership of any Subsidiary Account Party, or any insolvency, bankruptcy,
reorganization, rehabilitation or other similar proceeding affecting any Subsidiary Account Party or its assets; (iv) the existence
of any claim, set-off or other rights which the Company may have at any time against any Subsidiary Account Party, the Administrative
Agent, any Bank or any other Person, whether in connection herewith or any unrelated transactions, provided that nothing herein
shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; (v) any invalidity or unenforceability
relating to or against any Subsidiary Account Party for any reason of any Credit Document or
34
Letter
of Credit, or any provision of applicable law or regulation purporting to prohibit the payment by any Subsidiary Account Party of any
reimbursement obligation, interest or any other amount payable by it under any Credit Documents or in respect of any Letter of Credit
issued hereunder; and (vi) any other act or omission to act or delay of any kind by any Subsidiary Account Party, the Administrative
Agent, any Bank or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute
a legal or equitable discharge of or defense to the Company’s obligations hereunder. The Company’s obligations hereunder
shall remain in full force and effect until the Commitments shall have terminated and all reimbursement obligations, interest and all
other amounts payable by the Company and each Subsidiary Account Party under this Agreement shall have been paid in full. If at any time
any payment of reimbursement obligation, interest or any other amount payable by any Subsidiary Account Party under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of such Subsidiary Account Party
or otherwise, the Company’s obligations hereunder with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time. The Company irrevocably waives acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Subsidiary
Account Parties or any other Person. The Company shall not enforce any payment by way of subrogation against any Subsidiary Account Party
so long as (i) any Bank has any Commitment hereunder or (ii) any amount payable hereunder remains unpaid (it being understood
that this sentence shall not restrict the Company from receiving payments in respect of reimbursement obligations or other intercompany
claims against any Subsidiary Account Party in the ordinary course of business).
SECTION 2.02.
Issuance and Administration of Syndicated Letters
of Credit. With respect to each Syndicated Letter of Credit, such Syndicated Letter of Credit shall be executed and delivered by
the Administrative Agent in the name and on behalf of, and as attorney-in-fact for, the Banks party to such Syndicated Letter of Credit,
and the Administrative Agent shall act as the agent of each such Bank to (a) receive drafts, other demands for payment and other
documents presented by the beneficiary under such Syndicated Letter of Credit, (b) determine whether such drafts, demands and documents
are in compliance with the terms and conditions of such Syndicated Letter of Credit and (c) notify such Bank and the Company (who
shall notify the relevant Subsidiary Account Party, if any) that a valid drawing has been made and the date that the related LC Disbursement
is to be made; provided, that the Administrative Agent shall have no obligation or liability for any LC Disbursement under such
Syndicated Letter of Credit, and each Syndicated Letter of Credit shall expressly so provide. Promptly following the issuance of any
Syndicated Letter of Credit hereunder, the Administrative Agent shall provide each Bank with a copy thereof. Each Bank hereby irrevocably
appoints and designates the Administrative Agent as its attorney-in-fact, acting through any duly authorized officer of the Person that
is serving as the Administrative Agent, to execute and deliver in the name and on behalf of such Bank each Syndicated Letter of Credit
to be issued by the Banks hereunder. Promptly upon the request of the Administrative Agent, each Bank will furnish to the Administrative
Agent such powers of attorney or other evidence as any beneficiary of any such Letter of Credit may reasonably request in order to demonstrate
that the Administrative Agent has the power to act as attorney-in-fact for such Bank to execute and deliver each Syndicated Letter of
Credit.
SECTION 2.03.
Reimbursement for LC Disbursements, Cover, Etc.
35
(a) Reimbursement.
If any Bank shall make any LC Disbursement in respect of any Letter of Credit, the relevant Obligor shall reimburse such Bank in respect
of any such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 5:00 p.m., New
York City time, on the Domestic Business Day immediately following the day that the relevant Obligor receives notice of such LC Disbursement;
provided that, if at any time during the Commitment Availability Period any LC Disbursement has not been reimbursed by or on behalf
of the relevant Obligor prior to the applicable time, the Company shall be deemed to have requested a Base Rate Borrowing in an equivalent
amount to be disbursed on the Domestic Business Day such reimbursement is due, subject to the conditions set forth in Section 3.01
(other than receipt of a Notice of Borrowing by the Administrative Agent), to finance such payment, and to the extent so financed, the
relevant Obligor’s obligation to make such payment shall be discharged and replaced by the resulting Base Rate Borrowing; provided,
further, that with respect to any unreimbursed amount that is not fully refinanced by a Base Rate Borrowing because the conditions
set forth in Section 3.01 cannot be satisfied, such unreimbursed amount (together with interest) shall be immediately due and payable
by the relevant Obligor without further demand.
(b) Reimbursement
Obligations Absolute. The obligations of the relevant Obligor to reimburse LC Disbursements as provided in Section 2.03(a) and
of the Company as guarantor as provided in Section 2.01(g) shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack
of validity or enforceability of any Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate
in any respect, (iii) payment under a Letter of Credit against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit, (iv) at any time or from time to time, without notice to the Company or any Subsidiary Account
Party, the time for any performance of or compliance with any of such reimbursement obligations of any Obligor or party thereto shall
be waived, extended or renewed, (v) any of such reimbursement obligations of any Obligor or party thereto shall be amended or otherwise
modified in any respect, or any guarantee of any of such reimbursement obligations or any security therefor shall be released, substituted
or exchanged in whole or in part or otherwise dealt with, (vi) any lien or security interest granted to, or in favor of, the Administrative
Agent or any of the Banks as security for any of such reimbursement obligations shall fail to be perfected, (vii) the occurrence
of any Default, (viii) the existence of any proceedings of the type described in Section 6.01(g) or (h) with respect
to any other Obligor or party thereto of any of such reimbursement obligations, (ix) any lack of validity or enforceability of any
of such reimbursement obligations against any other Obligor or party thereto of any of such reimbursement obligations, or (x) any
other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03,
constitute a legal or equitable discharge of the obligations of the Company or any Subsidiary Account Party hereunder.
Neither the Administrative
Agent nor any Bank nor any of their respective Related Parties shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other
36
communication under or relating
to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond their control; provided, that the foregoing shall not be construed to excuse the
Administrative Agent or a Bank from liability to any Obligor to the extent of any direct damages (as opposed to consequential, special,
indirect and punitive damages, claims in respect of which are hereby waived by the Obligors to the extent permitted by applicable law)
suffered by such Obligor that are caused by (x) the bad faith, gross negligence or willful misconduct of the Administrative Agent
or such Bank, as the case may be, or (y) in the case of any Bank, its failure to make an LC Disbursement in respect of any drawing
properly made under a Letter of Credit as provided in Sections 2.01(e) and 2.03(c), in the case of each of the foregoing clauses
(x) and (y), as determined in a final and non-appealable judgment by a court of competent jurisdiction. The parties hereto expressly
agree that:
(i) the
Administrative Agent or (in the case of any Fronted Letter of Credit) the applicable Fronting Issuing Bank may accept documents that
appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation,
regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face
to be in substantial compliance with the terms of such Letter of Credit;
(ii) the
Administrative Agent or (in the case of any Fronted Letter of Credit) the applicable Fronting Issuing Bank shall have the right, in its
sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and
(iii) this
sentence shall establish the standard of care to be exercised by the Administrative Agent or (in the case of any Fronted Letter of Credit)
the applicable Fronting Issuing Bank when determining whether drafts and other documents presented under a Letter of Credit comply with
the terms thereof (and the parties hereto hereby waive, to the extent permitted by applicable law, any standard of care inconsistent
with the foregoing).
(c) Disbursement
Procedures. The following provisions shall apply to any Syndicated Letter of Credit. The Administrative Agent shall, within a reasonable
time following its receipt thereof, examine all documents purporting to represent a demand for payment under any Syndicated Letter of
Credit. The Administrative Agent shall promptly after such examination (A) notify each of the Banks and the Company (who shall notify
the relevant Subsidiary Account Party, if any) in writing of such demand for payment and (B) deliver to each Bank a copy of each
document purporting to represent a demand for payment under such Syndicated Letter of Credit. With respect to any drawing properly made
under any such Syndicated Letter of Credit, each Bank will make an LC Disbursement in respect of such Syndicated Letter of Credit in
accordance with its liability under such Syndicated Letter of Credit and this Agreement, such LC Disbursement to be made to the account
of the Administrative Agent most recently designated by it for such purpose by notice to the Banks. The Administrative Agent will make
any such LC Disbursement available to the beneficiary of such Syndicated Letter of Credit by promptly crediting the amounts so received,
in like funds, to the account identified by such beneficiary in connection with such demand for payment; provided, that the Administrative
Agent will be obligated to honor drawings
37
under any Syndicated Letter
of Credit only to the extent of funds received. Promptly following any LC Disbursement by any Bank in respect of any such Syndicated
Letter of Credit, the Administrative Agent will notify the Company (who shall notify the relevant Subsidiary Account Party, if any) of
such LC Disbursement; provided, that any failure to give or delay in giving such notice shall not relieve the relevant Obligor
of its obligation to reimburse the Banks with respect to any such LC Disbursement, the Company of its guarantee pursuant to Section 2.01(g),
or any of the relevant Subsidiary Account Party’s or the Company’s obligations hereunder.
(i) The
following provisions shall apply to any Fronted Letter of Credit. The applicable Fronting Issuing Bank shall, within a reasonable time
following its receipt thereof, examine all documents purporting to represent a demand for payment under a Fronted Letter of Credit. The
applicable Fronting Issuing Bank shall promptly after such examination notify the Administrative Agent and the Company (who shall notify
the relevant Subsidiary Account Party, if any) in writing of such demand for payment and whether such Fronting Issuing Bank has made
or will make a LC Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve
the relevant Subsidiary Account Party or the Company of its obligation to reimburse such Fronting Issuing Bank and the Banks with respect
to any such LC Disbursement.
(d) Interim
Interest. If any LC Disbursement is made, then, unless such LC Disbursement has been reimbursed in full on the date such LC Disbursement
is made (without regard for when notice thereof is given), the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the relevant Obligor reimburses such LC Disbursement, at the rate
per annum equal to the Base Rate plus the Applicable Margin applicable to Base Rate Borrowings at such time.
(e) Provision
of Cover. In the event the Company or the Subsidiary Account Parties shall have provided (or be required to provide) cash collateral
for outstanding Letters of Credit pursuant to Section 2.01(c), Section 2.17, Section 6.01, Section 2.11(c), Section 2.18(c)(i) or
clause (f) hereof, the Administrative Agent will establish a separate cash collateral account (the “Collateral Account”),
which may be a “securities account” (as defined in Section 8-501 of the Uniform Commercial Code as in effect in New
York (the “NY UCC”)), in the name and under the sole dominion and control of the Administrative Agent (and, in the
case of a securities account, in respect of which the Administrative Agent is the “entitlement holder” (as defined in Section 8-102(a)(7) of
the NY UCC)) into which there shall be deposited from time to time such amounts paid to the Administrative Agent as cash collateral for
the applicable LC Exposure. As collateral security for the prompt payment in full when due of the Obligations and all reimbursement obligations
in respect of LC Disbursements, all interest thereon, and all other obligations of the Obligors under the Credit Documents whether or
not then outstanding or due and payable (such obligations being herein collectively called the “Secured Obligations”),
each Obligor hereby pledges and grants to the Administrative Agent, for the benefit of the Banks and the Administrative Agent as provided
herein, a security interest in all of its right, title and interest in and to the Collateral Account and the balances from time to time
in the Collateral Account (including the investments and reinvestments therein provided for below). The balances from time to time in
the Collateral Account shall not constitute payment of any Secured Obligations until applied by the Administrative Agent as provided
herein. Anything in this Agreement to the contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal
only as
38
provided in this Section 2.03(e).
Amounts on deposit in the Collateral Account shall be invested and reinvested by the Administrative Agent in such short-term investments
as the Administrative Agent shall determine in its sole discretion. All such investments and reinvestments shall be held in the name
and be under the sole dominion and control of the Administrative Agent and shall be credited to the Collateral Account. At any time,
and from time to time, while an Event of Default has occurred and is continuing, the Administrative Agent shall, if instructed by the
Required Banks in their sole discretion, liquidate any such investments and reinvestments and credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances in the Collateral Account to the payment of any of the
Secured Obligations due and payable. If at any time (i) no Default has occurred and is continuing and (ii) all of the Secured
Obligations then due have been paid in full but Letters of Credit remain outstanding, the Administrative Agent shall, from time to time,
at the request of the Company, deliver to the relevant Obligor, against receipt but without any recourse, warranty or representation
whatsoever, such of the balances in the Collateral Account as exceed the aggregate undrawn face amount of all outstanding Letters of
Credit. When all of the Secured Obligations shall have been paid in full, all Letters of Credit have expired or been terminated and the
Commitments have terminated, the Administrative Agent shall promptly deliver to the Company, for account of the relevant Obligor, against
receipt but without any recourse, warranty or representation whatsoever, the balances remaining in the Collateral Account.
(f) Without
limiting clause (z) in the first paragraph of Section 2.01(a), if, at any time, the sum of (i) the aggregate undrawn face
amount of Fronted Letters of Credit issued by such Fronting Issuing Bank plus (ii) the aggregate amount of unreimbursed LC
Disbursements in respect of Fronted Letters of Credit of any Fronting Issuing Bank exceeds its Fronted LC Commitment, the relevant Obligor
shall immediately, first, repay any unreimbursed LC Disbursements owing to such Fronting Issuing Bank and, second, either
provide cash collateral in the amount equal to 102% of such excess above such Fronting Issuing Bank’s Fronted LC Commitment or
cause one or more of the outstanding Fronted Letters of Credit issued by such Fronting Issuing Bank to be cancelled, reduced or cancelled
and reissued as one or more Syndicated Letters of Credit, so that such excess above such Fronted LC Commitment is eliminated.
SECTION 2.04.
Loans. At any time and from time to time during the Commitment Availability Period each Bank severally agrees, on the terms
and conditions set forth in this Agreement, to make loans in Dollars to the Company pursuant to this Section 2.04 in amounts such
that (x) the aggregate outstanding amount of the Credit Exposures of the Banks shall not exceed the aggregate amount of the Commitments
of the Banks and (y) the aggregate outstanding amount of the Credit Exposure of such Bank shall not exceed the Commitment of such
Bank. Each Borrowing (i) of Term SOFR Loans shall be in an aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
and (ii) of Base Rate Loans shall be in a principal amount of $1,000,000 or any larger multiple of $500,000 and, in each case, shall
be made from the several Banks ratably in proportion to their respective Commitments; provided, that, notwithstanding the foregoing,
a Base Rate Borrowing may be in an amount that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.03(a).
Within the foregoing limits, the Company may borrow under this Section 2.04, repay or, to the extent permitted by Section 2.12,
prepay Loans and reborrow at any time during the Commitment Availability Period under this Section 2.04.
39
SECTION 2.05.
Notice of Borrowings; Interest Elections.
(a) The
Company shall give the Administrative Agent notice (a “Notice of Borrowing”) not later than 11:00 a.m. (New York
City time) (x) on the date of each Base Rate Borrowing by the Company and (y) two U.S. Government Securities Business Days
before each Term SOFR Borrowing by the Company, specifying:
(i) the
date of such Borrowing, which shall be a Domestic Business Day in the case of a Base Rate Borrowing or a U.S. Government Securities Business
Day in the case of a Term SOFR Borrowing,
(ii) the
aggregate amount (in Dollars) of such Borrowing,
(iii) whether
the Loans comprising such Borrowing are to be Base Rate Loans or Term SOFR Loans,
(iv) in
the case of a Term SOFR Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period,
(v) whether
the Loans comprising such Borrowing are to be LC Reimbursement Loans; and
(vi) certifying
that all other conditions in Section 3.01(b) and (c) have been satisfied.
(b) Interest
Elections. Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a Term
SOFR Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Company may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term SOFR Borrowing, may elect Interest
Periods therefor, all as provided in this subsection (b). The Company may elect different options with respect to different portions
of the affected Borrowing, in which case each such portion shall be allocated ratably among the Banks holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. To make an election pursuant to this
Section 2.05(b), the Company shall notify the Administrative Agent of such election in writing by the time that a Notice of Borrowing
would be required under Section 2.05(a) if the Company were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and signed by the Company.
Each Interest Election Request shall specify the following information in compliance with Section 2.04:
(i) the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
40
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Domestic Business Day;
(iii) whether
the resulting Borrowing is to be a Base Rate Borrowing or a Term SOFR Borrowing; and
(iv) if
the resulting Borrowing is a Term SOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests
a Term SOFR Borrowing but does not specify an Interest Period, then the Company shall be deemed to have selected an Interest Period of
one month’s duration. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Bank
of the details thereof and of such Bank’s portion of each resulting Borrowing. If the Company fails to deliver a timely Interest
Election Request with respect to a Term SOFR Borrowing prior to the date that is two U.S. Government Securities Business Days before
the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be continued as a Term SOFR Borrowing with an Interest Period of one month. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Banks, so notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted
to or continued as a Term SOFR Borrowing and (ii) unless repaid, each Term SOFR Borrowing shall be converted to a Base Rate Borrowing
at the end of the Interest Period applicable thereto.
SECTION 2.06.
Funding of Loans.
(a) Upon
receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s
share of such Borrowing and such Notice of Borrowing shall not thereafter be revocable by the Company.
(b) Not
later than 12:00 noon (New York City time) (or 1:00 p.m. (New York City time) in the case of any Base Rate Borrowing) on the date
of each Borrowing, each Bank participating therein shall (except as provided in subsection (c) of this Section 2.06) make available
its share of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address
specified in or pursuant to Section 9.01. Unless the Administrative Agent determines that any applicable condition specified in
Article III has not been satisfied, the Administrative Agent will make the funds so received from the Banks available to the Company
at any account of the Company specified in writing to the Administrative Agent by the Company that is reasonably acceptable to the Administrative
Agent.
(c) If
any Bank makes a new Loan hereunder to the Company on a day on which the Company or any Subsidiary Account Party is to repay all or any
part of an outstanding Loan or unreimbursed LC Disbursement from such Bank, and if requested in writing to do so by the Company, then
such Bank shall apply the proceeds of its new Loan to make such repayment and only an amount equal to the difference (if any) between
the amount being borrowed and the amount being repaid shall be made available by such Bank to the Administrative Agent as provided in
41
subsection (b) of this
Section 2.06, or remitted by the Company to the Administrative Agent as provided in Section 2.13, as the case may be.
(d) Unless
the Administrative Agent shall have received notice from a Bank prior to the time of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank’s share of such Borrowing, the Administrative Agent may assume that such Bank has made such
share available to the Administrative Agent on the date of such Borrowing in accordance with subsections (b) and (c) of this
Section 2.06 and the Administrative Agent may, in reliance upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such share available to the Administrative Agent, such Bank and the
Company severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Company until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Company, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.09 and (ii) in the case of such Bank, the higher of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Loan included in such Borrowing
for purposes of this Agreement.
(e) In
the event that the Company has made a Non-Pro Rata Issuance Election and thereafter the Company requests a Loan, such Loan shall, subject
to the other terms and provisions hereof, be advanced, first, by those Non-NAIC Approved Banks that do not participate in the
issuance, renewal, extension or amendment of one or more Syndicated Letters of Credit as the result of such Non-Pro Rata Issuance Election
until, after giving effect thereto, the Credit Exposure owing to the Banks are held by the Banks pro rata in accordance with their respective
Commitments, and, second, by the Banks (including such Non-NAIC Approved Banks) pro rata in accordance with their respective Commitments,
provided that, for the avoidance of doubt, the aggregate outstanding amount of the Credit Exposure of each Bank shall not exceed
the Commitment of such Bank notwithstanding the provisions of this Section 2.06(e).
SECTION 2.07.
Evidence of Loans.
(a) Each
Bank shall maintain in accordance with its usual practice records evidencing the indebtedness of the Company to such Bank resulting from
each Loan made by such Bank, including the amounts of principal and interest payable and paid to such Bank from time to time hereunder,
and setting forth the Commitments of such Bank.
(b) The
Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Company, shall maintain, at an office located within
the United States, a copy of each Assignment and Assumption delivered to it, in accordance with its customary practices, and a register
for the recordation of the names and addresses of the Banks and the Commitments of, and principal amounts (and stated interest) of the
Loans owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive absent
clear error, and the Company, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of this Agreement. The
42
Register shall be available
for inspection by the Company and any Bank (as to its own entries) at any reasonable time and from time to time upon reasonable prior
notice. No assignment shall be effective for purpose of this Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) The
failure of any Bank or the Administrative Agent to maintain such records required by this Section 2.07 or any error therein shall
not in any manner affect the obligations of the Company to repay the Loans in accordance with the terms of this Agreement.
(d) Any
Bank may request that the Loans of such Bank to the Company be evidenced by a single Note, in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences Loans of the relevant Type, payable by the Company to such
Bank for the account of its Applicable Lending Office. In such event, the Company shall prepare, execute and deliver to such Bank a Note
payable to such Bank (or, if requested by such Bank, to such Bank and its registered assigns). Thereafter, once recorded in and to the
extent consistent with the information contained in the Register, the Loans evidenced by such Note and interest thereon shall at all
times (including after assignment pursuant to Section 9.06) be represented by one or more Notes in such form payable to the payee
named therein (or, to such payee and its registered assigns). For any Loan evidenced by a Note pursuant to this clause (d), any transfer
of a Note must be recorded in the Register in order to be effective.
SECTION 2.08.
Maturity of Loans. Each Loan shall mature, and the Company hereby unconditionally promises to pay the unpaid principal
of each Loan (together with accrued interest thereon and all other amounts then payable under this Agreement) on the Maturity Date.
SECTION 2.09.
Interest Rates of Loans.
(a) Each
Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of the Base Rate for such day plus the Applicable Margin. Such interest shall
accrue and be payable quarterly in arrears on each Quarterly Date and on the date of termination of the Commitments in their entirety
(and, if later, the date the Loans shall be paid in full).
(b) Each
Term SOFR Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of Term SOFR plus the Applicable Margin. Such interest shall be payable (i) for each Interest
Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first
day thereof and (ii) in the event of any conversion of any Term SOFR Loan prior to the end of the current Interest Period therefor,
accrued interest on such Term SOFR Loan shall be payable on the effective date of such conversion.
(c) The
Administrative Agent shall determine each interest rate applicable to the Loans and other amounts hereunder. The Administrative Agent
shall give prompt notice to the Company and the Banks of each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(d) Notwithstanding
the rates of interest specified in clauses (a) and (b) above or elsewhere in any Credit Document, effective immediately upon
(i) the occurrence of any Event
43
of Default under clauses
(a)(i), (g) or (h) of Section 6.01 or (ii) the affirmative vote of the Required Banks during the continuance of any
other Event of Default and, in each case, for as long as such Event of Default shall be continuing, all Obligations (including any Obligation
that bears interest by reference to the rate applicable to any other Obligation) shall bear interest at a rate that is 2.0% per annum
in excess of the interest rate otherwise applicable to such Obligations from time to time, payable on demand or, in the absence of demand,
on the date that would otherwise be applicable; provided, that at any time that the circumstances described in Section 8.01(a) shall
exist, any overdue principal of Term SOFR Loans bearing interest in accordance with this Section 2.09(d) shall bear interest
at a rate per annum equal to the sum of 2.0% plus the Base Rate for such day plus the Applicable Margin.
SECTION 2.10.
Fees.
(a) The
Company agrees to pay to the Administrative Agent for the account of each Bank a commitment fee (“Commitment Fee”),
which shall accrue at the Applicable Commitment Fee Rate, on the actual daily unused amount of the Commitment of such Bank during the
period from and including the Effective Date to but excluding the date that the Commitments terminate. Accrued Commitment Fees shall
be payable in arrears on each Quarterly Date, commencing on the first such date to occur after the Effective Date; provided, that
all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after such date shall be payable
on demand.
(b) Each
Obligor agrees to pay to the Administrative Agent for the account of each Bank a letter of credit fee with respect to each Syndicated
Letter of Credit issued for its account, which shall accrue at the Applicable Letter of Credit Commission on the average daily aggregate
undrawn amount of all outstanding Syndicated Letters of Credit during the period from and including the Effective Date to but excluding
the later of the date on which such Bank’s Commitment terminates and the date on which such Bank ceases to have any Syndicated
LC Exposure. Letter of Credit fees accrued through and including each Quarterly Date shall be payable in arrears on such Quarterly Date,
commencing on the first Quarterly Date to occur after the Effective Date; provided, that all such fees shall be payable on the
date on which the Commitments terminate and any such fees accruing after such date shall be payable on demand.
(c) Each
Obligor agrees to pay to the Administrative Agent for the account of each Fronting Issuing Bank a fronting fee with respect to each Fronted
Letter of Credit issued by such Fronting Issuing Bank for such Obligor’s account, which shall accrue at a rate per annum agreed
in writing between the Company and such Fronting Issuing Bank (and notified to the Administrative Agent) on the average daily aggregate
undrawn amount of each such Fronted Letters of Credit during the period from and including the date of issuance thereof to but excluding
the later of the expiry date thereof and the date on which there ceases to be any LC Exposure thereunder. Fronting fees accrued through
and including each Quarterly Date shall be payable on such Quarterly Date, commencing on the first Quarterly Date to occur after the
Effective Date; provided, that all such fees shall be payable on the date on which the Commitments terminate and any such fees
accruing after such date shall be payable on demand.
(d) Each
Obligor agrees to pay, on demand, to the Administrative Agent (with respect to Syndicated Letters of Credit issued for its account) and
each Fronting Issuing Bank (with
44
respect to Fronted Letters
of Credit issued by it for such Obligor’s account), in each case for its own account, all commissions, charges, costs and expenses
with respect to the issuance, amendment and extension of each such Letter of Credit and drawings and other transactions relating thereto
in amounts reasonably and customarily charged from time to time in like circumstances by the Person that is serving as the Administrative
Agent or such Fronting Issuing Bank, as the case may be, or, as may be separately agreed from time to time by the Company and the Administrative
Agent or such Fronting Issuing Bank, as the case may be.
(e) The
Company agrees to pay all fees owing to the Administrative Agent, the Joint Lead Arrangers and any Bank pursuant to the Fee Letter in
accordance with the terms set forth therein.
(f) All
fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution,
as applicable, to the Banks entitled thereto. Fees paid hereunder shall not be refundable under any circumstances.
SECTION 2.11.
Termination, Reduction or Increase of Commitments; Mandatory Prepayments. Unless previously terminated, the Commitments
shall automatically terminate on the Maturity Date.
(a) The
Company may, upon notice to the Administrative Agent by 10:00 a.m., New York City time, at least three Domestic Business Days prior to
such termination or reduction, without premium or penalty, terminate at any time, or proportionately and permanently reduce from time
to time by an aggregate amount of $10,000,000 or any larger multiple of $5,000,000 (or such other amount that represents the aggregate
amount of Commitments at such time), the aggregate amount of the Commitments; provided that, after giving effect to such termination
or any such reduction, the aggregate outstanding amount of the Credit Exposures of the Banks shall not exceed the aggregate amount of
the Commitments of the Banks. Upon receipt of such a notice, the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank’s ratable share of such reduction (if such notice is a notice of reduction) and such notice shall not
thereafter be revocable by the Company; provided, that any such notice may be conditioned upon the occurrence of one or more events
(including the effectiveness of new credit facilities) and may be revoked by the Company upon the non-occurrence of such event by written
notice to the Administrative Agent prior to the date specified for such termination or reduction. Any termination or reduction of the
Commitments shall be permanent.
(b) The
Company shall have the right, at any time after the Effective Date and from time to time prior to the date that is 30 days prior to the
Maturity Date, to increase the aggregate Commitments hereunder by an aggregate amount of up to $500,000,000, by causing one or more Additional
Commitment Banks (which may include any existing Bank, provided that no existing Bank shall be obligated to increase its Commitment)
to provide a (or, in the case of an existing Bank, to increase its) Commitment (each such increase, a “Commitment Increase”);
provided, that (i) no Bank shall have any obligation hereunder to become an Additional Commitment Bank and any election to
do so shall be in the sole discretion of each Bank, (ii) each Additional Commitment Bank shall have entered into an agreement in
form and substance satisfactory to the Company and the Administrative Agent pursuant to which such Additional Commitment Bank shall provide
a Commitment (or, if such Additional Commitment Bank is an
45
existing Bank, pursuant to
which its Commitment shall be increased), (iii) unless the Administrative Agent otherwise agrees, such Commitment of any Additional
Commitment Bank which is not an existing Bank shall be in an amount of at least $25,000,000 and (iv) unless the Administrative Agent
otherwise agrees, each Commitment Increase shall be in an amount of at least $25,000,000. Each such Additional Commitment Bank shall
enter into an agreement in form and substance satisfactory to the Company and the Administrative Agent pursuant to which such Additional
Commitment Bank shall, as of the effective date of such Commitment Increase (which shall be a Domestic Business Day and, unless the Administrative
Agent otherwise agrees, on which no issuance, amendment, renewal or extension of any Letter of Credit is scheduled to occur), provide
a Commitment (or, if any such Additional Commitment Bank is an existing Bank, increase its Commitment in the amount specified therein)
and (if not an existing Bank) become a Bank hereunder. Notwithstanding the foregoing, no Commitment Increase pursuant to this Section shall
be effective unless:
(i) the
Company shall have given the Administrative Agent notice of any such increase at least three Domestic Business Days prior to the relevant
effective date of such Commitment Increase;
(ii) no
Default or Event of Default shall have occurred and be continuing on such effective date; and
(iii) each
of the representations and warranties of the Company and the Subsidiary Account Parties contained in this Agreement (other than the representations
and warranties set forth in Sections 4.04(d) and 4.05) shall be true and correct on and as of such effective date with the same
force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
Each notice under clause (i) above shall
be deemed to constitute a representation and warranty by the Company as to the matters specified in clauses (ii) and (iii) above.
On the effective date of each Commitment Increase, the Company shall simultaneously (i) prepay in full the outstanding Loans (if
any) held by the Banks immediately prior to giving effect to the relevant Commitment Increase, (ii) if the Company shall have so
requested in accordance with this Agreement, borrow new Loans from all Banks (including, if applicable, any new Banks) such that, after
giving effect thereto, the Loans are held ratably by the Banks in accordance with their respective Commitments (after giving effect to
such Commitment Increase) and (iii) pay to the Banks the amounts, if any, payable under Section 2.14.
(c) If
on any day the aggregate amount of the Credit Exposures of the Banks exceeds the aggregate amount of the Commitments of the Banks, the
Company shall promptly prepay Loans (or, if no Loans are outstanding, cash collateralize outstanding Letters of Credit in accordance
with Section 2.03(e)), in an amount sufficient to eliminate such excess.
SECTION 2.12.
Optional Prepayments.
(a) The
Company may, upon notice to the Administrative Agent by 10:00 a.m., New York City time, at least one Domestic Business Day (or such shorter
time as the
46
Administrative Agent may agree
in its sole discretion) prior to the date of prepayment, without premium or penalty, prepay any Base Rate Borrowing made to the Company
in whole at any time, or from time to time in part in amounts aggregating $5,000,000 or any larger multiple of $1,000,000 (or such other
amount that represents the total amount of Base Rate Borrowings outstanding), by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment.
(b) The
Company may, upon notice to the Administrative Agent by 10:00 a.m., New York City time, at least three Domestic Business Days prior to
the date of prepayment, without premium or penalty (but including any amounts owed pursuant to Section 2.14), prepay any Term SOFR
Borrowing made to the Company in whole at any time, or from time to time in part in amounts aggregating $5,000,000 or any larger multiple
of $1,000,000 (or such other amount that represents the total amount of Term SOFR Borrowings outstanding), by paying the principal amount
to be prepaid together with (x) accrued interest thereon to the date of prepayment and (y) all losses and expenses (if any)
relating thereto which are (i) determined pursuant to Section 2.14 and (ii) notified to the Company by the relevant Bank
at least one Domestic Business Day prior to the date of such prepayment; provided, that the failure of any Bank to so notify the
Company of the amount of any such loss or expense shall not relieve the Company of its obligation to pay the same.
(c) Each
prepayment pursuant to this Section 2.12 shall be applied to prepay ratably the Loans of the several Banks included in the relevant
Borrowing being prepaid. Upon receipt of a notice of prepayment pursuant to this Section 2.12, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank’s ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Company; provided, that any such notice may be conditioned upon the occurrence of one or more events
(including the effectiveness of new credit facilities) and may be revoked by the Company upon the non-occurrence of such event by written
notice to the Administrative Agent on or prior to the date specified for such prepayment.
SECTION 2.13.
Payments Generally; Pro Rata Treatment; Administrative Agent’s Clawback.
(a) The
Obligors shall make or cause to be made each payment required to be made by them hereunder (whether reimbursement of LC Disbursements,
principal of or interest on the Loans, fees, amounts under Article VIII or otherwise) or under any other Credit Document (except
to the extent otherwise provided therein) not later than 2:00 p.m., New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Domestic Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its Payment Account, except as otherwise expressly provided in the relevant
Credit Document, and except that payments pursuant to Section 9.03 and Article VIII shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Domestic Business Day or U.S.
Government Securities Business Day (as applicable), the date for payment shall be extended to the next succeeding
47
Domestic Business Day or U.S.
Government Securities Business Day (as applicable) and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder or under any other Credit Document shall be made in Dollars.
(b) If
at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of unreimbursed LC
Disbursements in respect of Letters of Credit or interest thereon, principal of or interest on the Loans and fees then due hereunder,
such funds shall be applied (i) first, to pay interest and fees then due hereunder in respect of such Letters of Credit or
Loans (as applicable), pro rata among the Banks in accordance with the amounts of interest and fees then due to the Banks, and (ii) second,
to pay such unreimbursed LC Disbursements or principal in respect of Loans (as applicable) then due hereunder, pro rata among the Banks
in accordance with the amounts of unreimbursed LC Disbursements or principal of Loans then due to the Banks.
(c) Except
to the extent otherwise provided herein (including, without limitation, in clause (e) hereof): (i) each reimbursement of LC
Disbursements in respect of Letters of Credit and each payment of principal in respect of Loans shall be for account of the Banks (other
than Defaulting Banks), pro rata in accordance with the amounts of unreimbursed LC Disbursements or principal of Loans (as the case may
be) then due and payable to the Banks (other than Defaulting Banks); (ii) each termination or reduction of the amount of Commitments
under Section 2.11 shall be applied to the respective Commitments of the Banks, pro rata in accordance with their respective Applicable
Percentages; and (iii) each payment of interest, Commitment Fees and letter of credit fees shall be for account of the Banks (other
than Defaulting Banks), pro rata in accordance with the amounts of interest, Commitment Fees and letter of credit fees (as the case may
be) then due and payable to the Banks (other than Defaulting Banks).
(d) Unless
the Administrative Agent shall have received notice from the Company or relevant Subsidiary Account Party prior to the date on which
any payment is due to the Administrative Agent for account of the Banks hereunder that the Company or such Subsidiary Account Party will
not make such payment, the Administrative Agent may assume that the Company or such Subsidiary Account Party made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the Banks the amount due. In such event, if the
Company or such Subsidiary Account Party has not in fact made such payment, then each of the Banks severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the higher of the Federal Funds Rate
and a rate determined by Administrative Agent in accordance with banking industry rules for interbank compensation.
(e) If
any Bank shall fail to make any payment required to be made by it pursuant to Sections 2.01(e), 2.03(c), 2.06(d), 2.13(d), 2.16(b), 7.07
or shall otherwise be a Defaulting Bank, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision
hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank for the benefit of the
Administrative Agent or the applicable Fronting Issuing Bank to satisfy such Bank’s obligations to it or any such Fronting Issuing
Bank under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated
account as cash collateral for, and application to, any future funding obligations of such
48
Bank under any such Section,
in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(f) With
respect to any payment that the Administrative Agent makes for the account of the Banks hereunder as to which the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to
as the “Rescindable Amount”): (1) the Company has not in fact made such payment; (2) the Administrative
Agent has made a payment in excess of the amount so paid by the Company (whether or not then owed); or (3) the Administrative Agent
has for any reason otherwise erroneously made such payment; then each of the Banks, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Bank, in immediately available funds with
interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. A notice of the Administrative Agent to any Bank with respect to any amount owing under
this Section 2.13(f) shall be conclusive, absent manifest error. Notwithstanding anything to the contrary herein or in any
other Credit Document, the provisions of this Section 2.13(f) are solely agreements among the Banks and the Administrative
Agent and shall not impose any obligations on the Company or any of its Subsidiaries.
SECTION 2.14.
Funding Losses. If the Company makes any payment of principal with respect to any Term SOFR Loan (pursuant to Articles
VI or VIII or otherwise), or converts any Term SOFR Loan, on any day other than the last day of the Interest Period applicable thereto,
or the end of an applicable period fixed pursuant to Section 2.09(d), or if the Company fails to borrow, convert, continue or prepay
any Term SOFR Loans after notice has been given to any Bank in accordance with Sections 2.05(a), 2.05(b) or 2.12(b), as applicable,
the Company shall reimburse each Bank within 30 days after demand for any resulting loss or expense incurred by it (or by an existing
or prospective participant in the related Loan), including (without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after any such payment or failure to borrow, provided
that such Bank shall have delivered to the Company a certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.15.
Computation of Interest and Fees. Interest based on the Base Rate (including the Base Rate determined by reference to Term
SOFR) shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and fees shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the first day but excluding the last day).
SECTION 2.16.
Provisions Relating to NAIC Approved Banks.
(a) Each
Bank confirms that it is, as of the date of this Agreement, listed on the NAIC Approved Bank List. Each Bank agrees to use commercially
reasonable efforts in order to, at all times, (i) be listed on the NAIC Approved Bank List or (ii) maintain in effect a Confirming
Bank Agreement with a Bank which is listed on the NAIC Approved Bank List to act as a
49
Confirming Bank for such Bank
in respect of its obligations under the Syndicated Letters of Credit (which Bank, prior to entering into such Confirming Bank Agreement,
shall be subject to the prior written consent of each of the Company and the Administrative Agent, and such consent, in each case, shall
not be unreasonably withheld or delayed). If any Bank shall enter into a Confirming Bank Agreement hereunder at any time, it shall promptly
furnish a copy thereof to the Company and the Administrative Agent. If at any time any Bank shall cease to be a NAIC Approved Bank, such
Bank shall promptly notify the Company and the Administrative Agent and forthwith comply with its obligations under this Section 2.16.
(b) If
at any time any Bank shall not be listed on the NAIC Approved Bank List and shall not have in effect a Confirming Bank Agreement with
a Bank which is so listed (provided such Bank is not a Defaulting Bank at such time), such Bank shall be obligated to promptly
notify the Company and the Administrative Agent and provide cash collateral for its LC Exposure on the following terms:
(i) With
respect to any then existing Fronted LC Exposure of such Bank, at the option of the applicable Fronting Issuing Bank or the relevant
Obligor, such Bank shall forthwith deliver to the Administrative Agent or the applicable Fronting Issuing Bank an amount in cash equal
to 100% of the maximum amount of such Non-NAIC Approved Bank’s Fronted LC Exposure (such amount provided in respect of such Fronted
LC Exposure being herein called “Fronted LC Cash Collateral”). Upon receipt of any Fronted LC Cash Collateral (including
any additional cash collateral provided under clause (iii) below that constitutes Fronted LC Cash Collateral), the Administrative
Agent or the applicable Fronting Issuing Bank will establish one or more cash collateral accounts (which, in each case, may be a “securities
account” (as defined in Section 8-501 of the NY UCC)) in the name and under the sole dominion and control of the Administrative
Agent or the applicable Fronting Issuing Bank (and, in the case of a securities account, in respect of which the Administrative Agent
or the applicable Fronting Issuing Bank is the “entitlement holder” (as defined in Section 8-102(a)(7) of the NY
UCC)) (each such cash collateral account, a “Fronted LC Collateral Account”) and deposit therein the relevant portion
of such Fronted LC Cash Collateral (including the relevant portion of any additional cash collateral provided by such Bank in respect
of its additional Fronted LC Exposure pursuant to clause (iii) below) as collateral solely for the benefit of the applicable
Fronting Issuing Bank to secure such Bank’s obligations in respect of the Fronted LC Exposure with respect to Fronted Letters of
Credit issued by such Fronting Issuing Bank and such Bank hereby pledges and grants to the Administrative Agent or the applicable Fronting
Issuing Bank, for the benefit of the applicable Fronting Issuing Bank, a security interest in all of its right, title and interest in
and to each Fronted LC Collateral Account and the balances from time to time therein (including the investments and reinvestments therein
provided for below). The balances from time to time in a Fronted LC Collateral Account shall not constitute payment of any such obligations
until applied by the Administrative Agent or the applicable Fronting Issuing Bank as provided herein.
(ii) With
respect to any then existing Syndicated LC Exposure of such Bank, such Bank and/or the relevant Obligor may request that another Bank
act as a Confirming Bank for (and to enter into a Confirming Bank Agreement with) such Bank with respect to such Bank’s then existing
Syndicated LC Exposure (and such additional Syndicated LC
50
Exposure of such
Bank, to the extent provided in clause (iii) below); provided that (A) no Bank shall be obligated to so act as
a Confirming Bank and (B) any agreement of such Bank to so act as a Confirming Bank shall be on such terms and conditions and subject
to payment of such fees as shall be agreed among such Confirming Bank, the Bank that is no longer a NAIC Approved Bank, the Administrative
Agent and the relevant Obligor (including, to the extent required by the Confirming Bank or the relevant Obligor, the requirement that
such Bank shall forthwith deliver to the Administrative Agent an amount in cash equal to the maximum amount of such Syndicated LC Exposure
(such amount provided in respect of such Syndicated LC Exposure being herein called the “Syndicated LC Cash Collateral”)).
Upon receipt of any Syndicated LC Cash Collateral (including any additional cash collateral provided under clause (iii) below
that constitutes Syndicated LC Cash Collateral) by the Administrative Agent from such Bank, the Administrative Agent will establish a
cash collateral account (of the type described in clause (i) above) (the “Syndicated LC Collateral Account”
and, together with each Fronted LC Collateral Account, each a “LC Collateral Account”) and deposit therein such Syndicated
LC Cash Collateral (including any additional cash collateral provided by such Bank in respect of its additional Syndicated LC Exposure
pursuant to clause (iii) below) as collateral solely for the benefit of the Confirming Bank to secure such Bank’s obligations
to the Confirming Bank under such Confirming Bank Agreement in respect of such Bank’s Syndicated LC Exposure and such Bank hereby
pledges and grants to the Administrative Agent, for the benefit of the Confirming Bank, a security interest in all of its right, title
and interest in and to the Syndicated LC Collateral Account and the balances from time to time therein (including the investments and
reinvestments therein provided for below). The balances from time to time in the Syndicated LC Collateral Account shall not constitute
payment of any such obligations until applied by the Administrative Agent as provided herein.
(iii) If
at any time thereafter the Obligor shall request additional Letters of Credit and at such time such Bank shall not be a NAIC Approved
Bank (provided such Bank is not a Defaulting Bank), upon the request of any applicable Fronting Issuing Bank, applicable Confirming
Bank or the relevant Obligor, as applicable, such Bank shall provide additional cash collateral in respect of its Applicable Percentage
of the maximum amount of the LC Exposure under such Letter of Credit in accordance with clause (i) or (ii) above, as applicable
(provided that, with respect to any Fronted LC Exposure, such collateral shall be provided only at the option of the applicable
Fronting Issuing Bank and with respect to any Syndicated LC Exposure, such collateral shall be provided only at the option of the applicable
Confirming Bank) and, upon receipt of such collateral, the Fronting Issuing Bank, Administrative Agent or such other party shall deposit,
hold and apply such collateral as Fronted LC Cash Collateral or Syndicated LC Cash Collateral, as applicable, in accordance with this
subsection (b).
(iv) Anything
in this Agreement to the contrary notwithstanding, funds held in any LC Collateral Account established under this subsection (b) shall
be subject to withdrawal only as provided herein. Amounts on deposit in each LC Collateral Account shall be invested and reinvested by
the Administrative Agent in such short-term investments as the Administrative Agent shall determine in its sole discretion or, in the
case of any Fronted LC Collateral Account, as the applicable Fronting Issuing Bank for whose benefits the funds therein have been pledged
may direct the Administrative Agent
51
or, in the case of
the Syndicated LC Collateral Account, as the applicable Confirming Bank(s) may direct the Administrative Agent. All such investments
and reinvestments shall be held in the name and be under the sole dominion and control of the Administrative Agent and shall be credited
to the relevant LC Collateral Account for the benefit of the Person for which such funds are being held. At any time, and from time to
time, the Administrative Agent shall, if instructed by (in the case of any Fronted LC Collateral Account) the applicable Fronting Issuing
Bank in its sole discretion or (in the case of the Syndicated LC Collateral Account) the applicable Confirming Bank (or the relevant
Obligor if such Non-NAIC Approved Bank does not have in effect a Confirming Bank Agreement) in its sole discretion, as the case may be,
liquidate any such investments and reinvestments and credit the proceeds thereof to such LC Collateral Account and apply or cause to
be applied the balances therein to the payment of such Bank’s obligations then due and payable which are secured by such balances.
(v) If
at any time the Letters of Credit in respect of any LC Exposure for which cash collateral has been provided by such Non-NAIC Approved
Bank under this subsection (b) shall no longer exist, the Administrative Agent shall, at the request of such Non-NAIC Approved
Bank, deliver to such Non-NAIC Approved Bank (with the concurrence of the applicable Fronting Issuing Bank, applicable Confirming Bank
or the relevant Obligor, as applicable), against receipt but without any recourse, warranty or representation whatsoever, the remaining
balance in the relevant LC Collateral Account.
(vi) If
at any time such Bank shall have become a NAIC Approved Bank, subject, in the case of any Syndicated LC Exposure of such Bank, to (x) the
termination of the Confirming Bank Agreement entered into between the applicable Confirming Bank and such Bank releasing the Confirming
Bank’s obligation thereunder to act as a Confirming Bank for such Bank and (y) with the consent of the beneficiary under each
Syndicated Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform
Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), the amendment of each such Syndicated Letter
of Credit by the Administrative Agent to reinstate such Bank’s liability thereunder (and terminate the applicable Confirming Bank’s
liability thereunder in its capacity as such Confirming Bank), the Administrative Agent shall, at the request of such Bank, deliver to
such Bank (with the concurrence of the applicable Fronting Issuing Bank (with respect to any Fronted LC Exposure), the applicable Confirming
Bank (with respect to any Syndicated LC Exposure)) or the relevant Obligor (with respect to any Syndicated LC Exposure for which the
Non-NAIC Approved Bank does not have in effect a Confirming Bank Agreement), against receipt but without any recourse, warranty or representation
whatsoever, the remaining balance in the relevant LC Collateral Account.
(c) Notwithstanding
anything herein to the contrary, so long as any Bank shall be a Non-NAIC Approved Bank, the Company may, upon notice to such Bank and
the Administrative Agent, require such Bank, at the expense of such Bank, to assign, without recourse (in accordance with and subject
to the restrictions contained in Section 9.06), all its interests, rights and obligations under this Agreement and the Letters of
Credit issued, or participated in, by such Bank to any Person that shall be on the NAIC Approved Bank List and such Person shall assume
such obligations (which Assignee may be another Bank, if it, in its sole discretion, accepts such
52
assignment) with (and subject
to) the consent of the Administrative Agent (which consent shall not unreasonably be withheld); provided that such Non-NAIC Approved
Bank shall have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein),
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the Obligors (in the case of all other amounts)
(provided that the Company or Subsidiary Account Party may deduct, or cause such assignee to deduct, from amounts payable by them
or it, as applicable, to such Bank hereunder all fees, costs and expenses reasonably incurred by the Company or such Subsidiary Account
Party in effecting such assignment).
(d) The
relevant Obligor may, subject to the terms and conditions set forth in this clause (d), request that all Syndicated Letters of Credit
that are requested to be issued or that are outstanding during the period that such Non-NAIC Approved Bank (i) does not have a Confirming
Bank and (ii) continues to be a Bank hereunder be issued, renewed, extended or amended, as applicable, by the Banks on an adjusted
pro rata basis that excludes the Commitment of such Non-NAIC Approved Bank, provided that, if the relevant Obligor elects to request
that any Syndicated Letter of Credit be issued, renewed, extended or amended on an adjusted pro rata basis, (i) such issuance, renewal,
extension or adjustment shall be made only to the extent that it would not cause the Credit Exposure owing to any Bank to exceed such
Bank’s Commitment and (ii) thereafter, if the Company elects to request a Loan, such Loan shall be advanced as provided in
Section 2.06(e).
(e) To
the extent that any Bank is acting as a Confirming Bank on behalf of a Non-NAIC Approved Bank for any period in accordance with this
Section 2.16, the rate at which such Non-NAIC Approved Bank’s letter of credit fee accrues pursuant to Section 2.10(b) during
such period shall be reduced by an amount to be agreed between such Non-NAIC Approved Bank and the applicable Confirming Bank, and the
applicable Confirming Bank shall be entitled to receive the amount by which such fee was reduced from the relevant Obligor as a letter
of credit fee for its own account.
SECTION 2.17.
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank,
then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment
Fees shall cease to accrue on the Commitment of such Defaulting Bank pursuant to Section 2.10(a);
(b) the
Commitment and Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or
may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided
that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification
requiring the consent of such Bank or each Bank affected thereby;
(c) with
respect to any Fronted LC Exposure (if any):
53
(i) all
or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant
to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages
but only to the extent (x) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure
does not exceed the total of all Non-Defaulting Banks’ Commitments and (y) such reallocation does not, as to any Non-Defaulting
Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its Commitment (and, if such reallocation can only partially be
effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the
Fronting Issuing Banks and the Administrative Agent);
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Obligors shall within one Domestic
Business Day following notice by the Administrative Agent, if the Defaulting Bank has not, at the request of the Company pursuant to
Section 2.17(e), assigned its interests, rights and obligations hereunder to another Person that is not a Defaulting Bank, (a) cash
collateralize for the benefit of the applicable Fronting Issuing Bank only the Obligors’ obligations in respect thereof corresponding
to such Defaulting Bank’s Fronted LC Exposure thereunder (after giving effect to any partial reallocation pursuant to clause (i) above)
in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding or (b) to
the extent permitted under the terms of the relevant Fronted Letter of Credit, cause one or more of the outstanding Fronted Letters of
Credit issued hereunder to be cancelled, reduced or cancelled and reissued in accordance with Section 2.01 in a reduced face amount,
so that such Non-NAIC Approved Bank’s Fronted LC Exposure is eliminated (after giving effect to any partial reallocation pursuant
to clause (i) above);
(iii) if
the Obligors cash collateralize any portion of such Defaulting Bank’s Fronted LC Exposure pursuant to clause (ii) above,
the Obligors shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(c) with
respect to such Defaulting Bank’s Fronted LC Exposure during the period and to the extent that such Defaulting Bank’s Fronted
LC Exposure is cash collateralized;
(iv) if
the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit
fees payable to the Banks pursuant to Section 2.10(c) shall be adjusted in accordance with such Non-Defaulting Banks’
Applicable Percentages;
(v) if
all or any portion of such Defaulting Bank’s Fronted LC Exposure is not reallocated, cash collateralized or assigned pursuant to
clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or
any other Bank hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to
the portion of such Defaulting Bank’s Commitment that was utilized by such Fronted
54
LC Exposure) and letter
of credit fees payable under Section 2.10(c) with respect to such Defaulting Bank’s Fronted LC Exposure shall be payable
to the applicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated, cash collateralized or
assigned in accordance with clauses (i) or (ii) above;
(vi) so
long as such Bank is a Defaulting Bank, no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of
Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding Fronted LC Exposure will be
100% covered by the Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Obligors in accordance with
Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among
Non-Defaulting Banks in a manner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein);
and
(vii) if
(i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so
long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling
its obligations under one or more other agreements in which such Bank commits to extend credit, such Fronting Issuing Bank shall not
be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements
with the Company or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with
respect to any Syndicated LC Exposure (if any):
(i) letter
of credit fees shall cease to accrue on such Defaulting Bank’s Syndicated LC Exposure pursuant to Section 2.10(b), except
to the extent (A) such Defaulting Bank’s Syndicated LC Exposure is the subject of a Confirming Bank Agreement (in which case,
such Letter of Credit fees shall be for the account of the applicable Confirming Bank) or (B) as set forth in clause (iii) below;
(ii) with
respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary
thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices
for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting
Bank (other than any such Syndicated LC Exposure for which a Confirming Bank is then acting as a Confirming Bank for such Defaulting
Bank pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable
Percentages but only to the extent (I) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s
LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (II) such reallocation does not, as to
any Non-Defaulting Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its
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Commitment and (y) each
such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which a Confirming Bank is then acting as
a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that
are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Defaulting Bank), after giving effect to such
event, and such Banks’ respective Applicable Percentages as of the effective date of such amendment;
(iii) if
the Syndicated LC Exposure of the Non-Defaulting Banks is reallocated with respect to any Syndicated Letter of Credit pursuant to clause (ii) above,
then the letter of credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall
be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages; and
(iv) the
Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting
Banks in a manner consistent with clause (ii) above (and such Defaulting Bank shall have no obligation under each such Syndicated
Letter of Credit to the extent such Syndicated LC Exposures in respect thereof are so reallocated);
(e) (i) the
Administrative Agent may, in its discretion, apply or hold payments for the account of such Defaulting Bank as set forth in Section 2.13(e) and
until such time as the readjustments with respect to such Defaulting Bank are effected pursuant to subsection (f) of this Section 2.17,
the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank, at the expense of such
Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.06), all
its interests, rights and obligations under this Agreement and the Letters of Credit issued, or participated in, by such Defaulting Bank
to any Person that shall assume such obligations (which assignee may be another Bank, if it accepts such assignment) with (and subject
to) the consent of the Administrative Agent (which consent shall not unreasonably be withheld); provided that (x) such Defaulting
Bank shall have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein),
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the Company (in the case of all other amounts) (provided
that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder
all fees, costs and expenses reasonably incurred by the Company in effecting such assignment) and (y) concurrently with such assignment,
to the extent any LC Exposure of such Defaulting Bank theretofore shall have been reallocated pursuant to this Section 2.17, the
Credit Exposures of the Banks (including, after giving effect to such assignment, such assignee) shall be readjusted (and payments made
by the relevant parties) in a manner consistent with subsection (f) of this Section 2.17, such that, after giving effect
thereto, the Banks (including such assignee, but not such Defaulting Bank) shall hold the Credit Exposures then outstanding in accordance
with their respective Applicable Percentages and (ii) to the extent the GBSA Bank is a Defaulting Bank, the Company may terminate
the Commitments of the GBSA Bank and repay the outstanding principal of its
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Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder as of such termination; and
(f) in
the event that the Administrative Agent, the Company and (to the extent there shall be Fronted Letters of Credit then outstanding) each
Fronting Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting
Bank, then such Bank shall cease to be a Defaulting Bank and the Credit Exposures of the Banks shall be readjusted as follows:
(i) with
respect to any Fronted LC Exposure then outstanding, such Fronted LC Exposure shall be readjusted to reflect the inclusion of such Bank’s
Commitment and such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks
in respect of such Fronted LC Exposure as the Administrative Agent shall determine may be necessary in order for such Bank to hold such
LC Disbursements in accordance with its Applicable Percentage;
(ii) with
respect to any Syndicated LC Exposure then outstanding, (x) with the consent of the beneficiary under each outstanding Syndicated
Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and
Practices for Documentary Credits governing such Syndicated Letter of Credit) and to the extent such Syndicated Letter of Credit was
theretofore amended or issued pursuant to subsection (d)(ii) or (d)(iv), as applicable, of this Section 2.17 to reflect
the exclusion of such Bank’s Commitment, (I) each such Syndicated Letter of Credit shall be amended by the Administrative
Agent to specify the Banks (including such Bank) that are then parties to such Syndicated Letter of Credit and such Banks’ respective
Applicable Percentages, in each case reflecting the inclusion of such Bank’s Commitment, as of the effective date of such amendment
and (II) if such Syndicated Letter of Credit was not theretofore amended pursuant to subsection (d)(ii) of this Section 2.17
to reflect the exclusion of such Bank’s Commitment thereunder, but instead the face amount of such Syndicated Letter of Credit
was increased or a new Letter of Credit was issued hereunder in favor of the beneficiary of such Syndicated Letter of Credit in order
to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Banks (including, if applicable,
the applicable Fronting Issuing Banks) in the amount required by such beneficiary, the amount of such Syndicated Letter of Credit or
new Letter of Credit shall be amended by the Administrative Agent to decrease the amount thereof, or the Obligors shall arrange for such
new Letter of Credit to be surrendered by such beneficiary to the Administrative Agent or the applicable Fronting Issuing Bank, in order
to reflect the inclusion of such Bank’s Commitment pursuant to the amendment to such Syndicated Letter of Credit under sub-clause (I) above
(provided that, notwithstanding anything herein to the contrary, the Obligors shall not be required to pay any letter of credit
fees to such Bank pursuant to Section 2.10(b) until such amendments with respect to such Letters of Credit shall have become
effective); (y) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) the Syndicated LC
Exposure
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of the Banks with respect
to such Syndicated Letter of Credit shall be readjusted to reflect the inclusion of such Bank’s Commitment; and (z) (subject
to clause (x) being satisfied with respect to a Syndicated Letter of Credit) such Bank shall purchase at par such of the unreimbursed
LC Disbursements then outstanding (if any) of the other Banks with respect to such Syndicated Letter of Credit as the Administrative
Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage;
and
(iii) with
respect to any Loans then outstanding, such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent
shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Applicable Percentage.
Subject to Section 9.16, no readjustment
under this Section 2.17(f) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank
arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a result of such Non-Defaulting
Bank’s increased exposure following such reallocation.
SECTION 2.18.
Extension of Maturity Date.
(a) The
Company may, by delivery of a Maturity Date Extension Request to the Administrative Agent (which shall promptly deliver a copy thereof
to each of the Banks) not less than 30 days, or more than 90 days, prior to the then existing Maturity Date (the “Existing Maturity
Date”), request that the Banks extend the Maturity Date for an additional period of one year with respect to all or part of
their respective Commitments in accordance with this Section 2.18; provided, that in no case shall the Maturity Date, as
so extended, be later than June 30, 2033. Each Maturity Date Extension Request shall (i) specify the date to which the Maturity
Date is sought to be extended, (ii) specify the changes, if any, to the Applicable Commitment Fee Rate, Applicable Letter of Credit
Commission and Applicable Margin to be applied in determining the interest payable on Loans of, and fees payable hereunder to, Consenting
Banks in respect of that portion of their Commitments (and related Loans) extended to such new Maturity Date and the time as of which
such changes will become effective (which may be prior to the Existing Maturity Date), and (iii) specify any other amendments or
modifications to this Agreement to be effected in connection with such Maturity Date Extension Request, provided that no such changes
or modifications requiring approvals pursuant to Section 9.05 other than that of the Required Banks shall become effective unless
such other approvals have been obtained. In the event a Maturity Date Extension Request shall have been delivered by the Company, each
Bank shall have the right to agree to or decline the extension of the Maturity Date and other matters contemplated thereby on the terms
and subject to the conditions set forth therein (each Bank agreeing to the Maturity Date Extension Request being referred to herein as
a “Consenting Bank” and each Bank not agreeing thereto being referred to herein as a “Declining Bank”),
which right may be exercised by written notice thereof, specifying the maximum amount of the Commitment of such Bank with respect to
which such Bank agrees to the extension of the Maturity Date, delivered to the Company (with a copy to the Administrative Agent) not
later than a day to be agreed upon by the Company and the Administrative Agent following the date on which the Maturity Date Extension
Request shall have been delivered by the Company (it being understood that any Bank that shall have failed to exercise such right as
set forth above shall be deemed to be a Declining Bank). If a Bank elects
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to extend only a portion of
its then existing Commitment, it will be deemed for purposes hereof to be a Consenting Bank in respect of such extended portion and a
Declining Bank in respect of the remaining portion of its Commitment. If Banks constituting the Required Banks shall have agreed to such
Maturity Date Extension Request in respect of Commitments constituting a majority of the aggregate Commitments, then, subject to paragraph (d) of
this Section, on the date specified in the Maturity Date Extension Request as the effective date thereof (the “Extension Effective
Date”), (i) the Maturity Date shall, as to the Consenting Banks, be extended to such date as shall be specified therein,
(ii) the terms and conditions of the Commitments and Loans of the Consenting Banks (including interest and fees (including Letter
of Credit fees) payable in respect thereof), shall be modified as set forth in the Maturity Date Extension Request and (iii) such
other modifications and amendments hereto specified in the Maturity Date Extension Request shall (subject to any required approvals other
than those of the Required Banks having been obtained) become effective.
(b) Notwithstanding
the foregoing, the Company shall have the right, in accordance with the provisions of Sections 8.06 and 9.06, at any time prior
to the Existing Maturity Date, to replace a Declining Bank (for the avoidance of doubt, only in respect of that portion of such Bank’s
Commitment that it has not agreed to extend) with a Bank or other financial institution that will agree to such Maturity Date Extension
Request, and any such replacement Bank shall for all purposes constitute a Consenting Bank in respect of the Commitment assigned to and
assumed by it on and after the effective time of such replacement.
(c) If
a Maturity Date Extension Request has become effective hereunder, on the Existing Maturity Date:
(i) the
Company shall (A) make such prepayments of Loans or (B) terminate or provide cash collateral for such Letters of Credit in
accordance with Section 2.03(e), in each case as shall be required in order that, upon giving effect to the termination and permanent
reductions of the Commitments of Declining Banks and Consenting Banks, as applicable, pursuant to clause (ii) below, and all
payments to such Declining Banks and Consenting Banks, as applicable, the aggregate Credit Exposures do not exceed the aggregate Commitments;
and
(ii) the
Commitment of each Declining Bank shall, to the extent not assumed, assigned or transferred as provided in paragraph (b) of
this Section, terminate, and the Company shall repay all the Loans of such Declining Bank, to the extent such Loans shall not have been
so purchased, assigned and transferred, in each case together with accrued and unpaid interest and all fees and other amounts owing to
such Declining Bank hereunder (accordingly, the Commitment of any Consenting Bank shall, to the extent such Commitment exceeds the amount
set forth in the notice delivered by such Bank pursuant to paragraph (a) of this Section, be permanently reduced by the amount
of such excess, and the Company shall prepay the proportionate part of the Loans of such Consenting Bank, in each case together with
accrued and unpaid interest thereon to but excluding the Existing Maturity Date and all fees and other amounts payable in respect thereof
on or prior to the Existing Maturity Date).
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(d) Notwithstanding
the foregoing, no Maturity Date Extension Request shall become effective hereunder unless, on the Extension Effective Date, the conditions
set forth in Section 3.01 shall be satisfied (with all references in such Section to the making of a Loan being deemed to be
references to such Maturity Date Extension Request) and the Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer.
(e) Notwithstanding
any provision of this Agreement to the contrary, it is hereby agreed that no extension of the Maturity Date in accordance with the express
terms of this Section 2.18, or any amendment or modification of the terms and conditions of the Commitments and Loans and Letters
of Credit of the Consenting Banks effected pursuant thereto, shall be deemed to (i) violate Section 2.13(b), clause (ii) of
Section 2.13(c), Section 9.04 or any other provision of this Agreement requiring the ratable reduction of Commitments or the
ratable sharing of payments or (ii) require the consent of all Banks or all affected Banks under Section 9.05.
(f) Notwithstanding
the foregoing, in the case of any Bank then serving (or whose designated Affiliate is then serving) as a Fronting Issuing Bank, (i) the
Fronted LC Commitment of such Bank (or such designated Affiliate) shall not be extended in connection with an extension of such Bank’s
Commitment unless so specified by such Bank (or such designated Affiliate), in its capacity as Fronting Issuing Bank, in a written notice
to the Company and (ii) no Fronting Issuing Bank that is a Declining Bank shall be required to issue, amend or extend a Fronted
Letter of Credit such that such Fronted Letter of Credit expires later than five Domestic Business Days prior to the Existing Maturity
Date.
(g) The
Company and the Administrative Agent may enter into an amendment to this Agreement to effect such modifications as may be necessary to
reflect the terms of any Maturity Date Extension Request that has been approved by the Required Banks and become effective in accordance
with the provisions of this Section 2.18.
Article III
CONDITIONS
SECTION 3.01.
Each Credit Extension. The obligation of each Bank to make any Loan or issue, amend, renew or extend any Letter of Credit
is subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditions:
(a) in
the case of a Letter of Credit, receipt by the Administrative Agent of a notice of issuance, amendment, renewal or extension, as the
case may be, with respect to such Letter of Credit, as required by Section 2.01(b), or, in the case of a Borrowing, receipt by the
Administrative Agent of a Notice of Borrowing as required by Section 2.05(a);
(b) immediately
before and after issuance, amendment, renewal or extension of such Letter of Credit or such Loan no Default or Event of Default shall
have occurred and be continuing;
(c) the
representations and warranties (other than the representations and warranties in Sections 4.04(d), Section 4.05 and with respect
to the covenant in 5.10(b)) of the applicable Obligors contained in this Agreement shall be true and correct in all material
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respects on and as
of the date of such issuance, amendment or extension of such Letter of Credit or such Loan (except that such representations and warranties
which are qualified by materiality or Material Adverse Effect shall be true and correct in all respects) (or, if any such representation
or warranty is expressly stated to have been made as of a specific date, as of such specific date); and
(d) solely
with respect to the obligation of the GBSA Bank to make any Loan or issue, amend, renew or extend any Letter of Credit, the Obligors
shall be in compliance with the covenant in Section 5.10(b) in all material respects on and as of the date of such issuance,
amendment, renewal or extension of such Letter of Credit or such Loan; provided, for the avoidance of doubt, that the failure
of this Section 3.01(d) to be satisfied shall not excuse any Bank (other than the GBSA Bank) from such Bank’s obligation
to make any Loan or issue, amend, renew or extend any Letter of Credit to the extent the other conditions set forth in this Section 3.01
are satisfied. At the time a GBSA Bank does not make any Loan or issue, amend, renew or extend any Letter of Credit solely due to failure
of the Obligors to satisfy this Section 3.01(d), such GBSA Bank shall be treated as a Defaulting Bank as set forth in Section 2.17.
The making of any Loan and each issuance, amendment,
renewal or extension of a Letter of Credit hereunder shall be deemed to be a representation and warranty by the Company on the date of
such issuance, amendment, renewal or extension or Loan, as the case may be, as to the satisfaction of the conditions specified in clauses
(b) and (c) of this Section 3.01.
SECTION 3.02.
Effectiveness. This Agreement shall become effective on the first date that all of the following conditions shall have
been satisfied (or waived in accordance with Section 9.05):
(a) receipt
by the Administrative Agent of counterparts of this Agreement signed by each of the Persons listed on the signature pages hereto
(or, in the case of any Bank as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in
form satisfactory to it of electronic mail or other written confirmation from such Bank of execution and delivery of a counterpart hereof
by such Bank);
(b) receipt
by the Administrative Agent of a customary legal opinion of external counsel to the Company addressed to it and the Banks and dated the
Effective Date, covering such customary matters relating to the Obligors, this Agreement or the transactions contemplated hereby as the
Administrative Agent shall reasonably request (and the Company hereby requests such counsel to deliver such opinions);
(c) receipt
by the Administrative Agent of a certificate, dated the Effective Date and signed by a Financial Officer of the Company, certifying:
(i) (x) that the representations and warranties contained in this Agreement shall be true and correct in all material respects
on and as of such date (except that such representations and warranties which are qualified by materiality or Material Adverse Effect
shall be true and correct in all respects) (or, if any such representation or warranty is expressly stated to have been made as of a
specific
61
date, as of such
specific date) and (y) no Default or Event of Default shall have occurred and be continuing and (ii) as to clause (g) of
this Section 3.02;
(d) receipt
by the Administrative Agent of such documents and certificates as the Administrative Agent may reasonably request relating to the organization,
existence and good standing of the Obligors, the authorization of the transactions contemplated hereby and any other legal matters relating
to each of the Obligors, this Agreement or the transaction contemplated hereby as are customary for financings of this type, all in form
and substance reasonably satisfactory to the Administrative Agent, including a certified copy of the resolutions (or equivalent approvals)
of the Board of Directors (or equivalent governing body) of each Obligor authorizing the execution, delivery and performance of this
Agreement and other Credit Documents;
(e) receipt
by the Administrative Agent (for the benefit of it and any applicable Bank), at least two Domestic Business Days prior to the Effective
Date, of (i) all documentation and other information required by bank regulatory authorities under “know your customer”
rules and regulations and Anti-Money Laundering Laws, including the PATRIOT Act and the Beneficial Ownership Regulation, and (ii) to
the extent the Company or any Subsidiary Account Party qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification in relation to the Company and each such Subsidiary Account Party, in the case of each
of clauses (i) and (ii), that has been reasonably requested by the Administrative Agent (on behalf of itself or any Bank) in
writing no later than seven Domestic Business Days prior to the Effective Date;
(f) receipt
by the Administrative Agent of evidence as of the Effective Date as to payment of all fees required to be paid, and all expenses required
to be paid or reimbursed for which invoices have been presented (including, without limitation, fees and disbursements of counsel to
the Administrative Agent required to be paid as of the Effective Date and invoiced at least three Domestic Business Days prior to the
Effective Date) in connection with this Agreement, on or before the Effective Date;
(g) there
shall not have occurred a material adverse change since December 31, 2025 in the business, financial condition or operations of
the Company and its Consolidated Subsidiaries, taken as a whole;
(h) receipt
by the Administrative Agent of counterparts of a Note signed by the Company in favor of each Bank that has requested a Note at least
two Domestic Business Days prior to the Effective Date; and
(i) receipt
by the Administrative Agent of evidence that the Existing Credit Agreement, all obligations thereunder (other than any contingent obligations),
and any commitments thereunder have been or are, substantially concurrently with the occurrence of the Effective Date, satisfied or terminated.
The Administrative Agent shall promptly notify
the Company and the Banks of the Effective Date, and such notice shall be conclusive and binding on all parties hereto.
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Article IV
REPRESENTATIONS AND WARRANTIES
The Company represents and
warrants on the Effective Date and each other date as and to the extent required by the Credit Documents, that:
SECTION 4.01.
Corporate Existence and Power. The Company (a) is a corporation duly incorporated and validly existing under the laws
of the State of Delaware, (b) has (i) all corporate power and authority and (ii) all material governmental licenses, authorizations,
consents and approvals required, in each case, to own or lease its assets and carry on its business as now conducted and (c) is
duly qualified and is licensed and, as applicable, in good standing under the laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license, except in each case referred to in the
foregoing clauses (b)(ii) and (c) to the extent that such failure to do so would not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.02.
Corporate and Governmental Authorization; Contravention. The execution, delivery and performance by each Obligor of this
Agreement and the other Credit Documents to which it is a party are within such Obligor’s corporate, limited liability or partnership
powers, have been duly authorized by all necessary corporate, limited liability company or partnership action, require no action by or
in respect of, or filing with, any governmental body, agency or official (except such as have been completed or made and are in full
force and effect) and do not contravene, or constitute a default under, any provision of (x) applicable law or regulation, (y) the
articles of incorporation or by-laws or other constituent documents of such Obligor or (z) any material agreement, judgment, injunction,
order, decree or other instrument binding upon any Obligor or any Material Subsidiary or result in the creation or imposition of any
Lien on any asset of any Obligor or any Material Subsidiary, except in each case referred to in the foregoing clauses (x) and
(z) to the extent such contravention or default, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.03.
Binding Effect. This Agreement and the other Credit Documents to which it is a party constitute the legal, valid and binding
obligations of each of the Obligors, in each case enforceable in accordance with their respective terms, except as the same may be limited
by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general principles of equity.
SECTION 4.04.
Financial Information; No Material Adverse Change.
(a) The
consolidated balance sheets of the Company and its Consolidated Subsidiaries, and the related consolidated statements of income, comprehensive
income, equity and cash flows for the fiscal year ended December 31, 2025, reported on by KPMG LLP, a copy of which has been delivered
to the Administrative Agent on behalf of each of the Banks, fairly present, in conformity with generally accepted accounting principles,
the consolidated financial position of the Company and its Consolidated Subsidiaries as of the last day of such fiscal year
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and their consolidated results
of operations and changes in financial position for the period covered by such financial statements.
(b) The
unaudited consolidated balance sheets of the Company and its Consolidated Subsidiaries as of March 31, 2026 and the related unaudited
consolidated statements of income and equity for the three-month period then ended, a copy of which has been delivered to the Administrative
Agent on behalf of each of the Banks, fairly present, in conformity, subject only to year-end adjustments and the absence of footnotes,
with generally accepted accounting principles, the consolidated financial position of the Company and its Consolidated Subsidiaries as
of such date and their consolidated results of operations for such period.
(c) A
copy of a duly completed and signed annual Statutory Statement or other similar report of or for each Insurance Subsidiary that is a
Material Subsidiary or Subsidiary Account Party in the form filed with the governmental body, agency or official which regulates insurance
companies in the jurisdiction in which such Insurance Subsidiary is domiciled for the year ended December 31, 2025 has been delivered
to the Administrative Agent on behalf of each of the Banks and fairly presents, in accordance with SAP, the information contained therein.
(d) Since
the last day of the fiscal year referenced in clause (a) of this Section 4.04, there has been no material adverse change in
the business, financial condition or operations of the Company and its Consolidated Subsidiaries, considered as a whole provided that
the representation and warranty set forth in this clause (d) shall only be made on the Effective Date.
SECTION 4.05.
Litigation; Environmental Matters.
(a) As
of the Effective Date, there is no action, suit or proceeding pending, or to the knowledge of the Company threatened, against any of
the Obligors or any of the Company’s Material Subsidiaries before any court or arbitrator or any governmental body, agency or official
(i) which has or would be reasonably expected to have a Material Adverse Effect or (ii) which in any manner draws into question
the validity or enforceability of this Agreement or any other Credit Document.
(b) The
Company has reasonably concluded that its, its Material Subsidiaries’ and the Subsidiary Account Parties’ compliance with
Environmental Laws is unlikely to result in a Material Adverse Effect.
SECTION 4.06.
Compliance with ERISA. Except as would not reasonably be expected to result in a Material Adverse Effect, each member of
the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and
is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan. Except
as would not reasonably be expected to result in a Material Adverse Effect, no member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any required contribution
or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code (other
than a bond or other security required in connection with the creation
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and adoption of a pension plan
for the Company) or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
SECTION 4.07.
Taxes. The Company and its Material Subsidiaries have filed all income Tax returns and all other material Tax returns and
reports which are required to be filed by them and have paid all Taxes due pursuant to such returns or pursuant to any assessment received
by the Company or any Material Subsidiary, except for any such Taxes that are being contested in good faith by appropriate proceedings
and for which adequate reserves have been made or except in each case to the extent that the failure to do so would not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.08.
Subsidiaries. Each of the Company’s Material Subsidiaries and each Subsidiary Account Party (a) is a corporation
or limited liability company that is (i) duly incorporated or organized and validly existing and (ii) (except where such concept
is not applicable) in good standing under the laws of its jurisdiction of incorporation or formation, (b) has all corporate or limited
liability power (as applicable) and authority and all material governmental licenses, authorizations, consents and approvals, in each
case, required to own or lease its assets and carry on its business as now conducted and (c) is duly qualified and is licensed and,
as applicable, in good standing under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct
of its business requires such qualification or license, except in each case referred to in the foregoing clauses (a)(ii), (b) and
(c) to the extent that such failure to do so would not reasonably be expected to have a Material Adverse Effect.
SECTION 4.09.
Not an Investment Company. None of the Obligors is an “investment company” as defined in the Investment Company
Act of 1940, as amended.
SECTION 4.10.
Obligations to be Pari Passu. The obligations of each Obligor under this Agreement and each other Credit Document to which
it is a party rank pari passu as to priority of payment and in all other respects with all other material unsecured and unsubordinated
Debt of such Obligor, with the exception of those obligations that are mandatorily preferred by law and not by contract.
SECTION 4.11.
No Default. No event has occurred and is continuing which constitutes, or which, with the passage of time or the giving
of notice or both, would constitute, a default under or in respect of any material agreement, instrument or undertaking to which any
Obligor or any Material Subsidiary is a party or by which any Obligor or any Material Subsidiary or any of their respective assets is
bound, unless such default would not have or be reasonably expected to have a Material Adverse Effect.
SECTION 4.12.
Material Subsidiaries and Subsidiary Account Parties. Set forth as Schedule II hereto is a true, correct and
complete list of each Material Subsidiary and Subsidiary Account Party, in each case designated as such, as of the date hereof.
SECTION 4.13.
Full Disclosure. None of the reports, financial statements, certificates or other written information furnished by or on
the behalf of the Company to the Administrative Agent or any Bank in connection with the negotiation of this Agreement and the other
Credit Documents or delivered hereunder or thereunder (in each case, as modified or supplemented by
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other information so furnished
and taken as a whole) contains any material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading in any material respect, when taken as a whole, as
of the date made; provided that, (i) with respect to projected or pro forma financial information and other forward-looking
information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable
at the time furnished (it being understood that such projections and forecasts are not to be viewed as facts, are subject to significant
uncertainties and contingencies, many of which are beyond the control of the Company and its Subsidiaries, that no assurance is given
that any particular projections or forecasts will be realized, that actual results may differ and that such differences may be material)
and (ii) with respect to statements, information and reports derived from Persons unaffiliated with the Company, the Company represents
that it has no knowledge of any material misstatement therein.
SECTION 4.14.
Hybrid Instruments. Set forth as Schedule III hereto is a true, correct and complete list of each Hybrid Instrument
of the Company and its Consolidated Subsidiaries outstanding as of the date hereof, specifying in each case the equity credit treatment
given to each such Hybrid Instrument by S&P and/or Moody’s as of the Effective Date.
SECTION 4.15.
Margin Regulations. No Letter of Credit or proceeds of Loans will be used, whether directly or, to the Company’s
knowledge, indirectly, for any purpose that entails a violation of any of the regulations of the Board, including Regulations T,
U and X. After the application of the proceeds of any Loan made hereunder or the issuance of any Letter of Credit hereunder, not more
than 25% of the value (as determined by any reasonable method) of the assets of any of the Obligors is represented by Margin Stock.
SECTION 4.16.
Sanctioned Persons; Anti-Money Laundering Laws, Anti-Corruption Laws. None of the Company or any of its Subsidiaries nor
any of their respective directors, officers, employees or, to the knowledge of the Company or any of its Subsidiaries, agents is a Sanctioned
Person. Each of the Company and its Subsidiaries and their respective directors, officers and, to the knowledge of the Company, employees
and agents is and has been in compliance, in all material respects, with (i) all Sanctions, (ii) the United States Foreign
Corrupt Practices Act of 1977, as amended, and any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders
(collectively, “Anti-Corruption Laws”) and (iii) applicable Anti-Money Laundering Laws. No part of the proceeds
of the Loans or Letters of Credit will be used by any Obligor or their respective directors, officers, employees and agent, directly
or indirectly, (A) for the purpose of funding, financing or facilitating any activities or business of, in or with, or making any
payments to, any Sanctioned Person or Sanctioned Jurisdiction, (B) in furtherance of an offer, payment, promise to pay, or authorization
of the payment or giving of money, or anything else of value, to any Person, in violation of any Anti-Corruption Law or (C) in a
manner that would result in violation of Sanctions or Anti-Money Laundering Laws by any Person. The Company and each of its Subsidiaries
have implemented policies and procedures designed to ensure compliance with Sanctions and applicable Anti-Money Laundering Laws and Anti-Corruption
Laws. None of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any of their respective directors, officers,
employees or agents is under administrative, civil or criminal investigation for an actual or alleged violation of, or received notice
from or made a voluntary
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disclosure to any Governmental
Authority regarding a possible violation of Anti-Money Laundering Laws, Sanctions or Anti-Corruption Laws.
SECTION 4.17.
Affected Financial Institutions. No Obligor is an Affected Financial Institution.
Article V
COVENANTS
Until all Commitments have
expired or been terminated, the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and
all Letters of Credit shall have expired or terminated or been cash collateralized to the satisfaction of the Administrative Agent and
the relevant Banks and all LC Disbursements shall have been reimbursed, the Company agrees that:
SECTION 5.01.
Information. The Company will deliver to each of the Banks:
(a) on
or before the date on which such financial statements are required to be filed with the SEC (or, if the Company is not required to file
such financial statements with the SEC, no later than 90 days after the end of the applicable fiscal year of the Company (beginning
with such financial statements for the fiscal year ended December 31, 2026)), the consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of each fiscal year completed after the Effective Date and the related consolidated statements
of income, comprehensive income, equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on in a manner acceptable to the SEC by KPMG LLP or other independent public accountants of
nationally recognized standing;
(b) on
or before the date on which such financial statements are required to be filed with the SEC (or, if the Company is not required to file
such financial statements with the SEC, 45 days after the end of each of the first three fiscal quarters of each fiscal year of
the Company), the consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of each of the first three
fiscal quarters of each fiscal year (commencing with the fiscal quarter ended June 30, 2026) and the related consolidated statements
of income, comprehensive income, equity and cash flows for such quarter and for the portion of the Company’s fiscal year ended
at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding
portion of the Company’s previous fiscal year, all certified (subject to normal year-end adjustments and, to the extent permitted
by Regulation S-X, the absence of footnotes) as to fairness of presentation, generally accepted accounting principles and consistency
with the most recent audited consolidated financial statements of the Company and its Consolidated Subsidiaries delivered to the Banks
(except for changes concurred in by the Company’s independent public accountants) by a Financial Officer;
(c) (I) substantially
concurrently with the delivery of each set of financial statements referred to in clauses (a) and (b) above a certificate
of a Financial Officer of the
67
Company (i) setting
forth in reasonable detail the calculations required to establish whether the Company was in compliance with the requirements of Section 5.07
on the date of such financial statements, (ii) stating that such Financial Officer, as the case may be, has no knowledge of any
Default existing on the date of such certificate or, if such Financial Officer has knowledge of the existence on such date of any Default,
setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto, and (iii) a
reconciliation to such financial statements of any inclusions to, or exclusions from, the calculations of Adjusted Consolidated Net Worth,
Consolidated Total Indebtedness and Consolidated Total Capitalization, and (II) simultaneously with the delivery of each set of
financial statements referred to in clause (a) and (b) above a certificate of a Financial Officer of the Company specifying
any changes to the list of Material Subsidiaries as of the last day of the fiscal period to which such financial statements relate;
(d) within
ten days after the required date for filing with such governmental body, agency or official (after giving effect to any extensions granted
by such governmental body, agency or official), a copy of a duly completed and signed annual Statutory Statement (or any successor form
thereto) required to be filed by each Insurance Subsidiary that is a Material Subsidiary with the governmental body, agency or official
which regulates insurance companies in the jurisdiction in which such Insurance Subsidiary is domiciled, in the form submitted to such
governmental body, agency or official;
(e) within
ten days after the required date for filing with such governmental body, agency or official (after giving effect to any extensions granted
by such governmental body, agency or official), a copy of a duly completed and signed quarterly Statutory Statement (or any successor
form thereto) required to be filed by each Insurance Subsidiary that is a Material Subsidiary with the governmental body, agency or official
which regulates insurance companies in the jurisdiction in which such Insurance Subsidiary is domiciled, in the form submitted to such
governmental body, agency or official (it being understood and agreed that the Obligors shall have no obligation to deliver quarterly
Statutory Statements if the filing of quarterly Statutory Statements is not required by the applicable government agency, body or official);
(f) within
five Domestic Business Days of any Financial Officer of the Company learning of the occurrence of any Default, a certificate of a Financial
Officer of the Company setting forth the details thereof and the action which the Company is taking or proposes to take with respect
thereto;
(g) promptly
following a request therefor, any documentation or other information required by bank regulatory authorities under applicable “know
your customer” rules and regulations, the PATRIOT Act, the Beneficial Ownership Regulation or any applicable Anti-Money Laundering
Laws or Anti-Corruption Laws, as from time to time reasonably requested by the Administrative Agent or any Bank;
(h) promptly
upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8
or its equivalent) and
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reports on Forms
10-K, 10-Q and 8-K (or their equivalents) which the Company shall have filed with the SEC;
(i) promptly
after Moody’s or S&P shall have announced a change in the rating established or deemed to have been established for the Index
Debt, written notice of such rating change; and
(j) except
to the extent prohibited by applicable law, regulatory policy, or regulatory restriction (as determined in the reasonable good faith
judgment of the Company), from time to time such additional information regarding the financial position or business of the Company as
the Administrative Agent (on behalf of itself or any Bank) may reasonably request; provided that neither the Company nor any of
its Subsidiaries shall be required to disclose any (i) trade secrets or proprietary information of the Company or its Subsidiaries,
(ii) information subject to attorney-client or similar privilege or constitutes attorney work product to the extent disclosure thereof
would be reasonably likely to impair such privilege or (iii) information subject to confidentiality obligations to third parties
the disclosure of which would reasonably be likely to cause the Company or any of its Subsidiaries to be in breach of such obligations.
Documents required to be delivered
pursuant to Sections 5.01(a), (b), (d), (e) or (h) may be delivered electronically on the following Internet websites: (a) the
Company’s website at an address to be designated in writing to the Administrative Agent, (b) with respect to Sections 5.01(a),
(b) or (h) the SEC’s website www.sec.gov (to the extent that any such documents are included in materials otherwise filed
with the SEC) or (c) such other third party website that shall have been identified by the Company in a notice to the Administrative
Agent and the Banks and that is accessible by the Banks without charge, and in each case if so delivered shall be deemed to have been
delivered on the date such materials are publicly available; provided, that (i) the Company shall deliver electronic copies
of such information to any Bank promptly upon the request of such Bank through the Administrative Agent and (ii) the Company shall
have notified the Administrative Agent of the posting of such documents delivered pursuant to Sections 5.01(a), (b), (d) and (e).
The Administrative Agent shall have no obligation to request the delivery of or to maintain paper 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 by a Bank for delivery,
and each Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
SECTION 5.02.
Payment of Tax Obligations. Each Obligor will pay and discharge, and the Company will cause each Material Subsidiary to
pay and discharge, at or before maturity, all their respective material Tax obligations and liabilities that if not paid, would reasonably
be expected to result in a Material Adverse Effect, except where (a) the same may be contested in good faith by appropriate proceedings
and such Obligor or such Material Subsidiary has set aside, in accordance with generally accepted accounting principles, appropriate
reserves for the accrual of any of the same or (b) the failure to make payment pending such contest would not reasonably be expected
to result in a Material Adverse Effect; provided that, for the avoidance of doubt, an obligation shall be considered to be delinquent
or in default for purposes of this Section 5.02 only if there has first been notice and demand therefor (as defined in Section 6306
of the Code and similar provisions of applicable Law) by a tax authority.
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SECTION 5.03.
Conduct of Business and Maintenance of Existence. The Company will continue, and will cause each Material Subsidiary and
Subsidiary Account Party to continue, to engage in the business of insurance and/or investment management or businesses incidental, related
or complementary thereto and will preserve, renew and keep in full force and effect, and will cause each Material Subsidiary and Subsidiary
Account Party to preserve, renew and keep in full force and effect (a) their respective corporate existence and (b) their respective
rights, privileges, licenses and franchises, other than, in the case of the foregoing clause (b), the loss of which would not reasonably
be expected to result in a Material Adverse Effect; except that if at the time thereof and immediately after giving effect thereto no
Default has occurred and is continuing, (i) any Subsidiary may merge with or into the Company; provided that the Company
shall be the surviving entity, (ii) any Material Subsidiary or Subsidiary Account Party may merge with or into any other Subsidiary;
provided that such Material Subsidiary or Subsidiary Account Party shall be the surviving entity or, if such Material Subsidiary
or Subsidiary Account Party is not the surviving entity, the surviving entity shall be deemed to be a Material Subsidiary or caused to
become a Subsidiary Account Party in accordance with Section 9.13, as applicable, (iii) any Material Subsidiary or Subsidiary
Account Party may sell, transfer, lease or otherwise dispose of its assets to the Company or to another Material Subsidiary or Subsidiary
Account Party and (iv) the Company or any Subsidiary Account Party may merge or consolidate with another Person in accordance with
the terms of Section 5.09. Notwithstanding the foregoing, the Company may liquidate or dissolve any Subsidiary if (i) the board
of directors of the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and
its Subsidiaries, taken as a whole, (ii) the assets of such liquidated or dissolved Subsidiary are received by (x) in the case
of the liquidation or dissolution of a Material Subsidiary, a Material Subsidiary or the Company, (y) in the case of the liquidation
or dissolution of a Subsidiary Account Party, a Subsidiary Account Party or the Company or (z) in the case of any other liquidation
or dissolution, a Subsidiary or the Company and (iii) in the case of the liquidation or dissolution of a Subsidiary Account Party,
such Subsidiary Account Party is terminated as a Subsidiary Account Party in accordance with the terms of Section 9.13(b).
SECTION 5.04.
Maintenance of Property; Insurance.
(a) The
Company will keep, and will cause each Material Subsidiary and Subsidiary Account Party to keep, all property useful and necessary in
its business in good working order and condition, except, in each case, to the extent that failure to do so would not be reasonably expected
to result in a Material Adverse Effect.
(b) The
Company will maintain, and will cause each Material Subsidiary and Subsidiary Account Party to maintain (either in the name of the Company
or in such Subsidiary’s own name) with financially sound and responsible insurance companies, insurance on all their respective
properties and against at least such risks, in each case as is consistent with sound business practice for companies in substantially
the same industry as the Company and its Material Subsidiaries and Subsidiary Account Parties; and the Company will furnish to the Banks,
upon request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried.
SECTION 5.05.
Compliance with Laws. The Company will comply, and will cause each Material Subsidiary to comply, in all material respects,
with all applicable laws, ordinances, rules,
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regulations and requirements
of governmental bodies, agencies and officials (including, without limitation, Environmental Laws and ERISA and the rules and regulations
thereunder) except (i) where the necessity of compliance therewith is contested in good faith by appropriate proceedings or (ii) where
such non-compliance therewith would not (A) reasonably be expected to have a Material Adverse Effect and (B) in the case of
the laws, rules, regulations and orders referred to in Section 4.16, reasonably be expected to result in the Administrative Agent,
any Bank, any Joint Lead Arranger or any Participant violating such laws, rules, regulations or orders. The Company and each of its Subsidiaries
will comply in all material respects with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws, and the Company and each of
its Subsidiaries shall maintain in effect and enforce policies and procedures reasonably designed to ensure compliance by the Company,
its Subsidiaries and their respective directors, officers, employees and agents with Sanctions, Anti-Money Laundering Laws and Anti-Corruption
Laws.
SECTION 5.06.
Inspection of Property, Books and Records. The Company will keep, and will cause each Material Subsidiary and Subsidiary
Account Party to keep, proper books of record and account in which entries that are full, true and correct in all material respects shall
be made of all dealings and transactions in relation to its business and activities; and, subject in all cases to Section 9.11,
will permit, and will cause each Material Subsidiary and Subsidiary Account Party to permit, representatives of the Administrative Agent
to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their respective officers, employees, actuaries and independent public
accountants, all upon reasonable notice, at such reasonable times during ordinary business hours; provided that such inspections
shall be limited to once per fiscal year of the Company, unless an Event of Default shall have occurred and be continuing, in which case
such inspection rights may be exercised as often as the Banks desire and at the expense of the Company; provided, further,
that neither the Company nor any of its Subsidiaries shall be required to disclose any (i) trade secrets or proprietary information
of the Company or its Subsidiaries, (ii) information subject to attorney-client or similar privilege or constitutes attorney work
product to the extent disclosure thereof would be reasonably likely to impair such privilege or (iii) information subject to confidentiality
obligations to third parties the disclosure of which would be reasonably likely to cause the Company or any of its Subsidiaries to be
in breach of such obligations.
SECTION 5.07.
Financial Covenants.
(a) Minimum
Adjusted Consolidated Net Worth. The Company will not permit its Adjusted Consolidated Net Worth, calculated as of the last day of
each fiscal quarter, to be less than an amount equal to the sum of (i) 65% of the actual Adjusted Consolidated Net Worth of the
Company and its Consolidated Subsidiaries as of March 31, 2026 ($7,088,250,000) plus (ii) 50% of the aggregate amount
of any increase in Adjusted Consolidated Net Worth resulting from Equity Issuances by the Company and its Consolidated Subsidiaries after
March 31, 2026.
(b) Total
Indebtedness to Total Capitalization Ratio. The Company will not permit the ratio of (i) (A) Consolidated Total Indebtedness
plus (B) the aggregate outstanding principal amount of all Hybrid Instruments of the Company and its Consolidated Subsidiaries in
excess of the Hybrid Instrument Amount to (ii) Consolidated Total Capitalization to exceed 0.35 to 1.00, calculated as of the last
day of each fiscal quarter.
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SECTION 5.08.
Negative Pledge. The Company will not, and will not permit any Subsidiary to, create or suffer to exist any Lien (other
than Liens securing Debt not prohibited under Section 5.12 hereof) upon (a) any present or future Capital Stock or any other
Ownership Interests (as defined below) of any of its Material Subsidiaries (other than any Subsidiary established primarily for the purpose
of reinsuring liabilities associated with the level premium term business, the universal life business with secondary guarantees or variable
annuities of the Company or any Insurance Subsidiary), except, solely with respect to this clause (a), clauses (a) and (x) of
the definition of “Permitted Liens” or (b) any other property or assets of the Company or any Material Subsidiary (other
than any Insurance Subsidiary), except, solely in the case of this clause (b), any Permitted Liens. As used herein “Ownership
Interests” means, with respect to any Person, all of the shares of Capital Stock of such Person and all debt securities of
such Person that can be converted or exchanged for Capital Stock of such Person, whether voting or nonvoting, and whether or not such
Capital Stock or debt securities are outstanding on any date of determination.
SECTION 5.09.
Consolidations, Mergers and Sales of Assets. No Obligor will (a) consolidate or merge with or into any other Person
or (b) sell, lease or otherwise transfer, directly or indirectly, all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, to any other Person; provided, that the Company or any Subsidiary Account Party may merge or consolidate
with another Person if (i) the Company or such Subsidiary Account Party, as applicable, is the corporation surviving such merger
or consolidation or, in the case of a merger or consolidation by a Subsidiary Account Party with and into another Person where such other
Person is the surviving entity, such Person meets the requirements for a Subsidiary Account Party set out in Section 9.13 and is
or becomes a Subsidiary Account Party pursuant to Section 9.13 and (ii) immediately after giving effect to such merger or consolidation,
no Default shall have occurred and be continuing.
SECTION 5.10.
Use of Credit.
(a) The
Company shall use each Letter of Credit issued under this Agreement for its general corporate purposes, including, without limitation,
to support variable annuity policy and reinsurance reserve credit requirements. The proceeds of each Loan made to the Company hereunder
will be used for its general corporate purposes, including, without limitation, to finance the reimbursement of LC Disbursements as contemplated
by Section 2.03(a). No Letter of Credit or proceeds of Loans will be used, whether directly or, to the Company’s knowledge,
indirectly, for any purpose that entails a violation of any of the regulations of the Board, including Regulations T, U and X. After
the application of the proceeds of any Loan made hereunder or the issuance of any Letter of Credit hereunder, not more than 25% of the
value (as determined by any reasonable method) of the assets of any of the Obligors will be represented by Margin Stock.
(b) Until
the earlier of the date on which (x) the Commitments have expired or been terminated and all Obligations shall have been paid in
full, (y) Deutsche Bank AG New York Branch or any Affiliate thereof is no longer a Bank subject to the GBSA (the “GBSA
Bank”) or (z) the GBSA Bank is no longer a Bank hereunder, the Company and each Subsidiary Account Party covenants and
agrees solely with the GBSA Bank that no portion of any Loan will be used to make loans or advances (or to refinance loans or advances),
directly or indirectly, to any AIF or AIFM or otherwise to be used to finance any investment on behalf of any AIF or AIFM. Notwithstanding
the foregoing, the Company may use the proceeds of any Loan or Letter of Credit
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to make loans or advances to
an AIFM if used solely for such AIFM’s working capital purposes or other administrative expenditures.
SECTION 5.11.
Obligations to be Pari Passu. The obligations of each Obligor under this Agreement and the other Credit Documents to which
it is a party will rank at all times pari passu as to priority of payment and in all other respects with all other material unsecured
and unsubordinated Debt of the such Obligor, with the exception of those obligations that are mandatorily preferred by law and not by
contract.
SECTION 5.12.
Certain Debt. The Company will not at any time permit the sum of (a) Non-Operating Indebtedness of the Company that
is secured by a Lien on any property or assets of the Company and its Subsidiaries and (b) Non-Operating Indebtedness of the Subsidiaries
of the Company to exceed $500,000,000 at any time outstanding, except (i) Debt set forth in Schedule IV hereto and any
Permitted Refinancing thereof and (ii) Debt of any Subsidiary of the Company owing to the Company or another Subsidiary of the Company.
SECTION 5.13.
Sanctions, Anti-Money Laundering and Anti-Corruption. The Company and its Subsidiaries shall ensure that no part of the
proceeds of the Loans or Letters of Credit will be used, directly or indirectly, (A) for the purpose of funding, financing or facilitating
any activities or business of, in or with, or making any payments to, any Sanctioned Person or Sanctioned Jurisdiction in violation of
Sanctions, (B) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any Person, in violation of any Anti-Corruption Law or (C) in a manner that would result in violation of Sanctions
or Anti-Money Laundering Laws by any Person. No funds derived, directly or indirectly, from any activities or business of, in or with
any Sanctioned Person or Sanctioned Jurisdiction, or derived in violation of Sanctions, Anti-Money Laundering Laws or Anti-Corruption
Laws, shall be used to make any repayments, or otherwise perform any rights or obligations, contemplated under this Agreement.
Article VI
DEFAULTS
SECTION 6.01.
Events of Default. If one or more of the following events (“Events of Default”) shall have occurred
and be continuing:
(a) (i) any
Obligor shall fail to pay when due any principal of any Loan or any reimbursement obligation in respect of an LC Disbursement or (ii) any
Obligor shall fail to pay when due any interest on any Loan or LC Disbursement or any fees or any other amounts payable hereunder and
such failure under this clause (ii) shall continue for five Domestic Business Days;
(b) any
Obligor shall fail to observe or perform any covenant of such Obligor contained in Sections 5.01(f), 5.03(a), 5.07 through 5.12
(other than 5.10(b)), inclusive, or its obligations to provide cash collateral pursuant to the last sentence of Section 2.01(c);
(c) any
Obligor shall fail to observe or perform any covenant or agreement of such Obligor contained in this Agreement (other than Section 5.10(b))
or the other Credit
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Documents (other
than those covered by clause (a) or (b) above) for 30 days after written notice thereof has been given to the Company
by the Administrative Agent at the request of any Bank;
(d) any
representation, warranty, certification or statement made by any Obligor in this Agreement, any other Credit Document or in any certificate,
financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) any
Obligor or any Material Subsidiary shall (i) fail to make any payment when due in respect of any Debt (other than Loans or other
extensions of credit hereunder) having a principal amount then outstanding of not less than the greater of (x) $150,000,000 and
(y) 1.5% of the Company’s Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements
have been, or are required to be, delivered pursuant to Section 5.01(a) or Section 5.01(b), and such failure shall
continue beyond any applicable grace period or (ii) fail to make any payment in respect of any Derivative Financial Product when
due, and such failure shall continue beyond any applicable grace period (and for this clause (ii) excluding, for the avoidance
of doubt, any amount the payment of which is being disputed in good faith in accordance with the dispute resolution procedures provided
for in the contract governing such Derivative Financial Product), the non-payment of which would give rise to any Obligor or Material
Subsidiary owing Material Unpaid Derivative Product Indebtedness in an aggregate principal amount exceeding the greater of (x) $150,000,000
and (y) 1.5% of the Company’s Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial
statements have been, or are required to be, delivered pursuant to Section 5.01(a) or Section 5.01(b), in the case of
each of clauses (i) and (ii), except where such non-payment has been cured or waived prior to the exercise of any remedies
under this Article VI (including, but not limited to, the termination of the Commitments hereunder);
(f) any
event or condition shall occur which results in the acceleration of the maturity of any Debt (other than Loans or other extensions of
credit hereunder) having a principal or face amount then outstanding of not less than the greater of (x) $150,000,000 and (y) 1.5%
of the Company’s Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements have
been, or are required to be, delivered pursuant to Section 5.01(a) or Section 5.01(b) of any Obligor or any Material
Subsidiary, or an early termination event shall arise with respect to any Derivative Financial Product that creates, after taking into
account the effect of any legally enforceable netting agreement relating to such Derivative Financial Product (including any applicable
grace or cure period thereunder), a Material Unpaid Derivative Product Indebtedness in an aggregate principal amount exceeding the greater
of (x) $150,000,000 and (y) 1.5% of the Company’s Adjusted Consolidated Net Worth for the most recently ended fiscal
quarter for which financial statements have been, or are required to be, delivered pursuant to Section 5.01(a) or Section 5.01(b),
except where such early termination event has been cured or waived prior to the exercise of any remedies under this Article VI (including,
but not limited to, the termination of the Commitments hereunder);
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(g) any
Obligor or any Material Subsidiary shall commence a voluntary case or other proceeding seeking rehabilitation, dissolution, conservation,
liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, rehabilitator, dissolver, conservator, custodian
or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize
any of the foregoing;
(h) an
involuntary case or other proceeding shall be commenced against any Obligor or any Material Subsidiary seeking rehabilitation, dissolution,
conservation, liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, rehabilitator, dissolver, conservator,
custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against any Obligor or any such
Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or any governmental body, agency or official shall
apply for, or commence a case or other proceeding to seek, an order for the rehabilitation, conservation, dissolution or other liquidation
of any Obligor or any Material Subsidiary or of the assets or any substantial part thereof of any Obligor and any Material Subsidiary
or any other similar remedy;
(i) any
of the following events or conditions shall occur, which, in the aggregate, would reasonably be expected to involve possible Taxes, penalties
and other liabilities in an aggregate amount that results in a Material Adverse Effect: (i) any member of the ERISA Group shall
fail to pay when due any amount or amounts which it shall have become liable to pay under Title IV of ERISA; (ii) notice of
intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator therefor
or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer,
any Plan; (iv) a condition shall exist by reason of which the PBGC would reasonably be expected to obtain a decree adjudicating
that any Plan must be terminated; or (v) there shall occur a complete withdrawal, as described in Section 4203 of ERISA, or
partial withdrawal, as described in Section 4205 of ERISA, from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans;
(j) a
judgment or order for the payment of money in excess of the greater of (x) $150,000,000 and (y) 1.5% of the Company’s
Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements have been, or are required
to be, delivered pursuant to Section 5.01(a) or Section 5.01(b) (to the extent not covered by independent third-party
insurance or reinsurance and, for the avoidance of doubt, net of any such coverage) shall be rendered against any Obligor or a Material
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Subsidiary and such
judgment or order shall continue unsatisfied, undischarged and unstayed for a period of 60 days after entry of such judgment (and,
for purposes of this clause, a judgment shall be stayed if, among other things, an appeal is timely filed and such judgment cannot be
enforced);
(k) a
Change of Control shall have occurred; or
(l) at
any time after the execution and delivery thereof any Obligor shall contest the validity or enforceability of any Credit Document in
writing or deny in writing that it has any further liability, including with respect to future advances by the Banks, under any Credit
Document to which it is a party;
then, and in every such event, and at any time
thereafter during the continuance of such event, the Administrative Agent shall, if requested by the Required Banks, by notice to the
Company take any or all of the following actions, at the same or different times: (i) terminate the Commitments and they shall
thereupon terminate, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal
not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Company accrued hereunder
shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Company, (iii) demand cash collateral from the relevant Obligors in immediately available funds in an amount equal to the
then aggregate undrawn amount of all Letters of Credit pursuant to Section 2.03(e) and (iv) enforce any remedies in
respect of assets subject to a security interest in favor of the Administrative Agent, including applying any cash collateral to repay
any outstanding Obligations; provided that, in the case of any of the Events of Default specified in clause (g) or
(h) above with respect to the Company, without any notice to the Company or any other act by the Administrative Agent or the Banks,
the Commitments shall thereupon terminate and the principal of the Loans then outstanding, together with accrued interest thereon and
all fees and other obligations of the Company accrued hereunder, and the obligations to provide cash collateral under clause (iii) above,
shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby waived
by the Company.
SECTION 6.02.
Notice of Default. The Administrative Agent shall give notice to the Company under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon notify all the Banks thereof.
Article VII
THE ADMINISTRATIVE AGENT
SECTION 7.01.
Appointment and Authorization.
(a) Each
Bank irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto. Except as provided in
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Section 7.09, the provisions of
this Article are solely for the benefit of the Administrative Agent, the Banks and their respective Related Parties, and neither
the Company nor any of its Subsidiaries shall have rights as a third-party beneficiary of any of such provisions.
(b) It
is understood and agreed that the use of the term “agent” herein or in any other Credit Documents (or any other similar term)
with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect
only an administrative relationship between contracting parties.
(c) The
provisions of this Article and each party’s rights and obligations hereunder shall survive the resignation or replacement
of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of Commitments
or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Credit Document.
SECTION 7.02.
Agent’s Fee. The Company shall pay to the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon between the Company and the Administrative Agent, including the fees documented in the Fee Letter.
SECTION 7.03.
Agent and Affiliates. Wells Fargo shall have the same rights and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it were not the Administrative Agent, and Wells Fargo and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with the Company or any Subsidiary or Affiliate of any thereof
as if it were not the Administrative Agent hereunder.
SECTION 7.04.
Action by Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein
and in the other Credit Documents, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality
of the foregoing, the Administrative Agent and its Related Parties:
(i) shall
not have any duty to take any action with respect to any Default, except as expressly provided in Article VI;
(ii) shall
not be subject to any agency, trust, fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred
and is continuing;
(iii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by
the Required Banks, 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 Credit Document or applicable law,
including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may
effect a forfeiture, modification or termination of property of a Defaulting Bank in violation of any Debtor Relief Law;
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(iv) shall
not, have any duty to disclose, and shall not be liable for the failure to disclose to any Bank or any other Person, any credit or other
information relating concerning the business, prospects, operations, properties, assets, financial or other condition or creditworthiness
of the Company or any of its Subsidiaries or Affiliates that is communicated to, obtained by or otherwise in the possession of the Person
serving as the Administrative Agent or its Related Parties in any capacity, except for notices, reports and other documents that are
required to be furnished by the Administrative Agent to the Banks pursuant to the express provisions of this Agreement; and
(v) shall
not be required to account to any Bank for any sum or profit received by the Administrative Agent for its own account.
SECTION 7.05.
Consultation with Experts. The Administrative Agent may consult with legal counsel (who may be counsel for the Company),
independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.06.
Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable
to any Bank for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction
by final non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless
and until written notice thereof is given to the Administrative Agent by the Company or a Bank stating that a Default or Event of Default
has occurred and specifying the nature thereof. Neither the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible to any Bank for or have any duty to any Bank or Participant or any other Person to ascertain, inquire into or verify
(i) any statement, warranty or representation made in connection with this Agreement or any other Credit Document or any borrowing
hereunder or the issuance, renewal, amendment or extension of any Letter of Credit; (ii) the performance or observance of any of
the covenants or agreements of any Obligor; (iii) the satisfaction of any condition specified in Article III, except receipt
of items required to be delivered to the Administrative Agent; (iv) the validity, effectiveness or genuineness of this Agreement,
any other Credit Document or any other instrument or writing furnished in connection herewith; (v) the existence or possible existence
of any Default or Event of Default; (vi) the financial condition of the Company or any of its Subsidiaries; or (vii) the
contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing believed by it in good faith
to be genuine or to be signed by the proper party or parties.
SECTION 7.07.
Indemnification. Each Bank shall, ratably in accordance with its Commitment (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought), indemnify and hold harmless the Administrative Agent (to the extent not reimbursed
by the Company) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except
such as result from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction
by final non-appealable judgment) that the Administrative Agent may
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suffer or incur in connection with this Agreement
or any action taken or omitted by the Administrative Agent hereunder. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to its satisfaction by the Banks pro rata against any and
all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
SECTION 7.08.
Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent
or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this Agreement.
SECTION 7.09.
Successor Agent.
(a) Subject
to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by giving written notice thereof to the Banks and the Company. Upon any such resignation, the Required Banks shall
have the right to appoint from among the Banks a successor Administrative Agent; provided that so long as no payment or bankruptcy
Event of Default has occurred and is continuing such successor Administrative Agent shall be subject to the consent of the Company, which
consent shall not be unreasonably withheld. If no successor Administrative Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring Administrative Agent gives notice of resignation, then
the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus
of at least $100,000,000; provided that so long as no payment or bankruptcy Event of Default has occurred and is continuing such
successor Administrative Agent shall be subject to the consent of the Company, which consent shall not be unreasonably withheld.
(b) If
the Person serving as Administrative Agent is a Defaulting Bank pursuant to clause (d) of the definition thereof, the Required
Banks may, to the extent permitted by applicable law, with the written consent of the Company and by notice in writing to such Person,
remove such Person as Administrative Agent and, with the written consent of the Company, appoint a successor.
(c) Upon
the acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring or removed Administrative Agent, and
the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent.
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SECTION 7.10.
Delegation to Affiliates. The Company and the Banks agree that the Administrative Agent may (x) perform any and all
of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents
appointed by the Administrative Agent or (y) delegate any of its duties under this Agreement to any of its Affiliates. Any such
sub-agent or Affiliate (and such sub-agent or Affiliate’s directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles VII and IX. 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 7.11.
Joint Lead Arrangers and Other Agents. Notwithstanding anything herein to the contrary, none of the Joint Lead Arrangers
and Joint Bookrunners, Syndication Agent or the Documentation Agents listed on the cover page of this Agreement shall have any
right, power, obligation, liability, responsibility or duty under this Agreement in its capacity as such, except in its respective capacity,
if any, as a Bank.
SECTION 7.12.
Recovery of Erroneous Payments.
(a) Each
Bank hereby severally agrees that if (i) the Administrative Agent notifies (which such notice shall be conclusive absent
manifest error) such Bank or any other Person that has received funds from the Administrative Agent or any of its Affiliates, either
for its own account or on behalf of a Bank (each such recipient, a “Payment Recipient”) that the Administrative Agent
has determined in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise
erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment
Recipient receives any payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount
than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or
any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (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) with respect to such payment,
prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or received
in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such amounts
specified in clauses (i) or (ii) of this Section 7.12(a), whether received as a payment, prepayment or repayment of
principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then,
in each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment;
provided that nothing in this Section shall require the Administrative Agent to provide any of the notices specified in
clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim to any Erroneous Payment,
and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Administrative Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge
for value” or any similar doctrine.
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(b) Without
limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall
promptly notify the Administrative Agent in writing of such occurrence.
(c) In
the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the Administrative
Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and upon demand
from the Administrative Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment
on its behalf to), promptly, but in all events no later than one Domestic Business Day thereafter, return to the Administrative Agent
the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency
so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof)
was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from
time to time in effect.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (c), from any Bank that is a Payment Recipient or an Affiliate
of a Payment Recipient (such unrecovered amount as to such Bank, an “Erroneous Payment Return Deficiency”), then at
the sole discretion of the Administrative Agent and upon the Administrative Agent’s written notice to such Bank (i) such
Bank shall be deemed to have made a cashless assignment of the full face amount of its Loans (but not its Commitments) was made to the
Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in
an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such
assignment of the Loans (but not Commitments), the “Erroneous Payment Deficiency Assignment”) plus any accrued and
unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any payment by the Administrative
Agent or its applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge
and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or
other consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall
govern in the event of any conflict with the terms and conditions of Section 9.06 and (3) the Administrative Agent may reflect
such assignments in the Register without further consent or action by any other Person.
(e) Each
party hereto hereby agrees that (x) in the event 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 (1) shall be subrogated
to all the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and
all amounts at any time owing to such Payment Recipient under any Credit Document, or otherwise payable or distributable by the Administrative
Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under this Section 7.12 or
under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not
for the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations
owed by
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the Company or any other Obligor, except, in
each case, to the extent 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 the Company or any other Obligor for the purpose of making a payment on the Obligations
and (z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the
Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be,
shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been received. For the avoidance
of doubt, clause (d) above and this clause (e) 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 Loans or interest thereon of the Company relative to the amount
(and/or timing for payment) of the Loans or interest thereon that would have been payable had such Erroneous Payment not been made by
the Administrative Agent.
(f) Each
party’s obligations under this Section 7.12 shall survive the resignation or replacement of the Administrative Agent or any
transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations (or any portion thereof) under any Credit Document.
(g) Nothing
in this Section 7.12 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising from any Payment
Recipient’s receipt of an Erroneous Payment.
SECTION 7.13.
Certain ERISA Matters.
(a) Each
Bank (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the
date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative
Agent and each Joint Lead Arranger and not, for the avoidance of doubt, to or for the benefit of the Company or any other Obligor, that
at least one of the following is and will be true:
(i) such
Bank 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 Bank’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the 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 Bank’s entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Section VI of
PTE 84-14), (B) such Qualified
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Professional Asset
Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Letters
of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) and
sub-section (k) of Section I of PTE 84- 14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of
Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent or the applicable Joint Lead
Arranger, as applicable, in each case in its sole discretion, and such Bank.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect
to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in
the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a
Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being
a Bank party hereto, for the benefit of, the Administrative Agent and each Joint Lead Arranger and not, for the avoidance of doubt, to
or for the benefit of the Company or any other Obligor, that none of the Administrative Agent or any Joint Lead Arranger is a fiduciary
with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance
of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of
any rights by the Administrative Agent under this Agreement, any Credit Document or any documents related hereto or thereto).
SECTION 7.14.
Reliance by the Administrative Agent. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Bank,
the Administrative Agent may presume that such condition is satisfactory to such Bank unless the Administrative Agent shall have received
notice to the contrary from such Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each Bank that has signed
this Agreement or a signature page to an Assignment and Assumption or any other Credit Document pursuant to which it is to become
a Bank hereunder shall be deemed to have consented to, approved and accepted and shall be deemed satisfied with each document or other
matter required thereunder to be consented to, approved or accepted by such Bank or that is to be acceptable or satisfactory to such
Bank.
SECTION 7.15.
Non-Reliance on Administrative Agent and the Banks. Each Bank expressly acknowledges that the Administrative Agent and
its Related Parties have not made any representations or warranties to them and that no act taken or failure to act by the Administrative
Agent or any of its Related Parties, including any consent to, and acceptance of any assignment or review of the affairs of the Company
and its Subsidiaries or Affiliates shall be deemed to constitute a representation or warranty of the Administrative Agent or any of its
Related Parties to any Bank as to any matter, including whether the Administrative Agent or any of its Related Parties have
83
disclosed material information in its (or its
Related Parties’) possession. Each Bank expressly acknowledges, represents and warrants to the Administrative Agent that (a) the
Credit Documents set forth the terms of a commercial lending facility, (b) it is engaged in making, acquiring, purchasing or holding
commercial loans in the ordinary course and is entering into this Agreement and the other Credit Documents to which it is a party as
a Bank for the purpose of making, acquiring, purchasing and/or holding the commercial loans set forth herein as may be applicable to
it, and not for the purpose of investing in the general performance or operations of any Obligor or its Subsidiaries or Affiliates or
for the purpose of making, acquiring, purchasing or holding any other type of financial instrument such as a security, (c) it is
sophisticated with respect to decisions to make, acquire, purchase or hold the commercial loans applicable to it and to provide the other
facilities applicable to it as set forth herein and either it or the Person exercising discretion in making its decisions to make, acquire,
purchase or hold such commercial loans or to provide such other facilities is, in each case, experienced in making, acquiring, purchasing
or holding commercial loans or providing such other facilities and (d) it has all licenses, permits and approvals necessary for
use of the reference rates referred to herein that are applicable to the Loans and other extensions of credit required to be made by
it hereunder and it will take all actions necessary to comply, preserve, renew and keep in full force and effect any such licenses, permits
and approvals. Each Bank also acknowledges and agrees that (i) it will, independently and without reliance upon the Administrative
Agent or any other Bank or any of their respective Related Parties continue to make such investigations and inquiries as it deems necessary
to inform itself as to Company and its Subsidiaries and (ii) it will not assert any claim under any federal or state securities
law or otherwise in contravention of this Section 7.15. Each party (including in the case of each Bank, on behalf of itself
and its Affiliates) acknowledges and agrees that the Administrative Agent may, but shall not be obligated to, from time to time provide
payment schedules, payoff statements, payoff letters, interest statements or bills and other similar documentation indicating amounts
owed hereunder and under the other Credit Documents.
Article VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01.
Inability to Determine Rates.
(a) If
in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any such
Loans, as applicable, (i) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest
error) that (A) no Successor Rate has been determined in accordance with Section 8.01(b), and the circumstances under
Section 8.01(b)(i) or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise
exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an
existing or proposed Base Rate Loan, or (ii) the Administrative Agent or the Required Banks determine that for any reason that
Term SOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairly reflect the cost to such Banks
of funding such Loan, the Administrative Agent will promptly so notify the Company and each Bank.
Thereafter, (x) the obligation
of the Banks to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent
of the
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affected Term SOFR Loans or Interest Periods),
and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base
Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative
Agent (or, in the case of a determination by the Required Banks described in Section 8.01(a)(ii), until the Administrative
Agent upon instruction of the Required Banks) revokes such notice.
Upon receipt of such notice,
(i) the Company may revoke any pending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (to the
extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request
for a Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to
have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period.
(b) Replacement
of Term SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Credit Documents, if the
Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required Banks notify
the Administrative Agent (with, in the case of the Required Banks, a copy to the Company) that the Company or Required Banks (as applicable)
have determined, that:
(i) adequate
and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including, without
limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to
be temporary; or
(ii) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent
or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement
identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate
shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated
loans, or shall or will otherwise cease; provided, that, at the time of such statement, there is no successor administrator
that is satisfactory to the Administrative Agent and the Company, that will continue to provide such interest period of Term SOFR after
such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen
Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”);
then, on a date and time determined by the Administrative
Agent in consultation with the Company (any such date, the “Term SOFR Replacement Date”), which date shall be at the
end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to
Section 8.01(b)(ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and
under any Credit Document with, Daily Simple SOFR, in each case, without any amendment to, or further action or consent of any other
party to, this Agreement or any other Credit Document (the “Successor Rate).
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If the Successor Rate is
Daily Simple SOFR, all interest payments will be payable on a monthly basis.
Notwithstanding anything
to the contrary herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term
SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Sections 8.01(b)(i) or 8.01(b)(ii) have
occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Company may amend this
Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 8.01
at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative
benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities
syndicated and agented in the United States for such alternative benchmark, and, in each case, including any mathematical or other adjustments
to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities
syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published
on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically
updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such
amendment shall become effective at 5:00 p.m. (New York time) on the fifth (5th) Domestic Business Day after the Administrative
Agent shall have posted such proposed amendment to all Banks and the Company unless, prior to such time, Banks comprising the Required
Banks have delivered to the Administrative Agent written notice that such Required Banks object to such amendment.
The Administrative Agent
will promptly (in one or more notices) notify the Company and each Bank of the implementation of any Successor Rate.
Any Successor Rate shall
be applied in a manner consistent with market practice; provided, that to the extent such market practice is not administratively
feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative
Agent, in consultation with the Company.
Notwithstanding anything
else herein, if at any time any Successor Rate as so determined would otherwise be less than zero percent (0.00%), the Successor Rate
will be deemed to be zero percent (0.00%) for the purposes of this Agreement and the other Credit Documents.
In connection with the implementation
of a Successor Rate, the Administrative Agent, in consultation with the Company, will have the right to make Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Conforming
Changes will become effective without any further action (other than consultation with the Company as noted above) or consent of any
other party to this Agreement or any other Credit Document; provided, that, with respect to any such amendment effected, the Administrative
Agent shall post each such amendment implementing such Conforming Changes to the Company and the Banks reasonably promptly after such
amendment becomes effective.
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For purposes of this Section 8.01,
those Banks that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall
be excluded from any determination of Required Banks.
SECTION 8.02.
Illegality. In the event that the circumstances described in Section 8.01(b) do not apply, if, after
the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Applicable Lending Office) to make, continue, maintain or fund its Loans which bear interest at a
rate determined by reference to SOFR or Term SOFR and such Bank shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Company, whereupon until such Bank notifies the Company and the Administrative
Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make Loans which bear interest
at a rate determined by reference to SOFR or Term SOFR shall be suspended. Before giving any notice to the Administrative Agent pursuant
to this Section 8.02, such Bank shall designate a different Applicable Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall
determine that it may not lawfully continue to maintain and fund any of its outstanding Loans which bear interest at a rate determined
by reference to SOFR or Term SOFR to maturity and shall so specify in such notice, the Company shall immediately prepay in full the then
outstanding principal amount of each such Loan, together with accrued interest thereon. Concurrently with prepaying each such Loan which
bear interest at a rate determined by reference to SOFR or Term SOFR, the Company shall borrow Base Rate Loans in an equal principal
amount from such Bank (on which interest and principal shall be payable contemporaneously with the related Loans, of the other Banks,
which bear interest at a rate determined by reference to SOFR or Term SOFR), and such Bank shall make such Base Rate Loans. For the avoidance
of doubt, notwithstanding the foregoing and despite the illegality for such Bank to make, maintain or fund Term SOFR Loans or Base Rate
Loans as to which the interest rate is determined with reference to Term SOFR, that Bank shall remain committed to make Base Rate Loans
and shall be entitled to recover interest at the Base Rate (in each case without giving effect to clause (c) of the definition
thereof).
SECTION 8.03.
Increased Cost and Reduced Return.
(a) If
on or after the date hereof, in the case of any Loan or any obligation to make Loans or in the case of any Letter of Credit or any obligation
to issue, participate in, renew or extend any Letter of Credit, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or
its Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central
bank or comparable agency shall impose, modify or deem applicable any reserve (including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System), special deposit, compulsory loan, insurance assessment or similar
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requirement against assets of, deposits with
or for the account of, or credit extended by, any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) any other condition affecting its Loans, its Notes or its obligation to make Loans or its obligation to issue or participate
in Letters of Credit, any outstanding Letters of Credit or reimbursement claims in respect of LC Disbursements (other than Excluded Taxes
and Taxes indemnified under Section 8.05) and the result of any of the foregoing is to increase the cost or expense to such
Bank (or its Applicable Lending Office) of making, continuing, converting to or maintaining any Loan or of issuing, participating in
or maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under other Credit Document with respect thereto, by an amount deemed by such Bank to be material, then,
within thirty (30) days after demand by such Bank (with a copy to the Administrative Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased cost or reduction.
(b) If
any Bank shall have determined that, after the Effective Date (subject to Section 8.03(d) below), the adoption of
any applicable law, rule or regulation regarding capital adequacy, or any change in any applicable law, rule or regulation
regarding capital adequacy or liquidity requirements, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding
capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank’s obligations hereunder to a level below that which such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to capital adequacy and liquidity) by an amount deemed by such
Bank to be material, then from time to time, within thirty (30) days after demand by such Bank (with a copy to the Administrative Agent),
the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank (or its Parent) for such reduction.
Notwithstanding anything to the contrary in this Section 8.03, the Company shall not be required to compensate a Bank pursuant
to Section 8.03(a) or (b) for any amounts incurred more than 270 days prior to the date that such Bank notifies the
Company of such Bank’s intention to claim compensation therefor, to the extent such Bank had knowledge of the circumstances giving
rise to such claim for compensation and its effects on the rate of return on capital in respect of this facility prior to such 270 day
period; provided that, if the change in law giving rise to any such increased cost or reductions is retroactive, then the 270 day
period referred to above shall be extended to include the period of retroactive effect thereof.
(c) Each
Bank will promptly notify the Company and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section 8.03. A certificate of any Bank claiming compensation
under this Section 8.03 and setting forth the additional amount or amounts to be paid to it hereunder and, in reasonable
detail, such Bank’s computation of such amount or amounts, shall be conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
(d) Notwithstanding
anything herein to the contrary, for purposes of this Section, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act
and all requests,
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rules, guidelines or directives thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to have gone into effect after the Effective Date, regardless
of the date enacted, adopted or issued; provided that no Bank shall demand compensation pursuant to this Section 8.03
as a result of increased cost or reduced return resulting from Basel III or the Dodd-Frank Wall Street Reform and Consumer Protection
Act if it shall not at the time be the general policy or practice of such Bank to demand such compensation from similarly situated borrowers
(to the extent that, with respect to such increased cost or reduced return, such Bank has the right to do so under its credit facilities
with similarly situated borrowers).
SECTION 8.04.
Base Rate Loans Substituted for Affected Loans Based on SOFR or Term SOFR. If (i) the obligation of any Bank to make
or continue Loans which bear interest at a rate determined by reference to SOFR or Term SOFR has been suspended pursuant to Section 8.02
or (ii) any Bank has demanded compensation under Sections 8.03(a) or 8.05 and the Company shall, by at least
five (5) U.S. Government Securities Business Days’ prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section 8.04 shall apply to such Bank, then, unless and until such Bank notifies the Company
that the circumstances giving rise to such suspension or demand for compensation no longer apply:
(a) all
Loans which would otherwise be made, or continued, by such Bank as Loans which bear interest at a rate determined by reference to SOFR
or Term SOFR shall be made instead as, or converted into, Base Rate Loans (on which interest and principal shall be payable contemporaneously
with the related Loans, of the other Banks, which bear interest at a rate determined by reference to SOFR or Term SOFR), and
(b) after
each of its Loans which bear interest at a rate determined by reference to SOFR or Term SOFR has been repaid, all payments of principal
which would otherwise be applied to repay such Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05.
Taxes. For purposes of Section 8.03 and this Section 8.05, the following terms have the following meanings:
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such sections
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation,
rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code.
“Excluded Taxes”
means, in the case of each Bank and the Administrative Agent, (i) any Taxes imposed on its net income (however denominated), and
franchise, branch profits or similar taxes imposed on it, by a jurisdiction under the laws of which such Bank or the Administrative Agent
(as the case may be) is organized or in which its principal executive office is located or, in the case of each Bank, in which its Applicable
Lending Office is located, (ii) any
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Taxes imposed on or measured
by its overall net income (however denominated), or any similar Taxes imposed on it, by reason of any present or former connection between
it and the jurisdiction (or any political subdivision thereof) imposing such Taxes, other than connections arising solely as a result
of the Bank or the Administrative Agent (as the case may be) having executed, delivered, become a party to, performed its obligations
under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document,
or sold or assigned any interest in any Loan or Credit Document, (iii) in the case of each Bank, U.S. federal withholding Taxes
imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant
to a law in effect on the date on which such Bank acquires such interest in the Loan or Commitment (other than pursuant to an assignment
request by the Company under Section 8.06) or such Bank changes its lending office, except in each case to the extent that, pursuant
to this Section 8.05, amounts with respect to such Taxes were payable either to such Bank’s assignor immediately before such
Bank became a party hereto or to such Bank immediately before it changed its lending office, provided, that for purposes of this
clause (iii), in the case of a Loan acquired by a Bank pursuant to the funding of a Commitment, such Bank shall be treated as acquiring
an interest in such Loan on the date it acquired an interest in the Commitment pursuant to which such Loan was funded, (iv) any
Taxes attributable to such recipient’s failure to comply with Sections 8.05(f) or (g) and (v) any U.S.
Federal withholding Taxes imposed by FATCA.
“Indemnified Taxes”
means (a) any Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of the Company pursuant to this Agreement or any other Credit Document and (b) to the extent not otherwise described in (a), Other
Taxes.
“Other Taxes”
means any present or future stamp or documentary Taxes and any other excise or property Taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or any other Credit Document or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Agreement or any other Credit Document, but excluding any such Taxes described in clause (ii) of
the definition of Excluded Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 8.06).
“Withholding Agent”
means the Company or the Administrative Agent.
(a) Any
and all payments by or on account of any obligation of the Company hereunder or under any other Credit Document shall be made free and
clear and without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law requires the Withholding
Agent to deduct or withhold any Taxes from any such payments, then (i) such Withholding Agent shall make such deductions or withholdings,
(ii) such Withholding Agent shall pay the full amount deducted or withheld to the relevant taxation authority or other authority
in accordance with applicable law, and (iii) if such Tax is an Indemnified Tax, then the sum payable by the Company shall be increased
as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional
sums payable under this Section 8.05) the applicable recipient receives an amount equal to the sum it would have received had no
such deductions or withholdings been made.
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(b) The
Company shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative
Agent timely reimburse it for the payment of, any Other Taxes, in each case, within 30 days after written demand therefor.
(c) The
Company shall indemnify each Bank and the Administrative Agent for the full amount of any Indemnified Taxes, (including, without limitation,
any Indemnified Taxes imposed or asserted on amounts payable under this Section 8.05), whether or not correctly or legally imposed
or asserted by the relevant Governmental Authority, payable or paid by such Bank or the Administrative Agent (as the case may be) or
required to be withheld or deducted from a payment to such Bank or the Administrative Agent and reasonable expenses arising therefrom
or with respect thereto. This indemnification shall be paid within 30 days after such Bank or the Administrative Agent, as the
case may be, makes written demand therefor. A certificate as to the amount of such payment or liability delivered to the Company by a
Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive
absent manifest error.
(d) After
any payment of Taxes by the Company to a taxing authority or other authority pursuant to this Section, the Company shall promptly furnish
to the Administrative Agent, at its address referred to in Section 9.01, the original or a certified copy of a receipt evidencing
payment thereof, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent and, if such receipt relates to an Indemnified Tax in respect of a sum payable to any Bank, the Administrative Agent shall promptly
deliver such original or certified copy to such Bank.
(e) Any
Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall
deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent,
such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Company
or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company
or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Bank is subject to
backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set forth in the following sentence and in
Section 8.05(g)) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would
subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such
Bank. Without limiting the generality of the foregoing, on or prior to the date on which a Bank becomes a Bank under this Agreement,
(i) each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it will deliver
to each of the Company and the Administrative Agent (a) two duly completed and executed copies of United States Internal Revenue
Service Form W-8BEN, W-8BEN-E, W-8IMY or W-8ECI (as applicable) certifying in either case that such Bank is entitled to receive
payments under any Credit Document without or with reduced deduction or withholding of any United States federal income Taxes and (b) in
the case of such Bank claiming the benefits of the exemption from portfolio interest under Section 881(c) of the
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Code, a certificate to the effect
that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder”
of the Company within the meaning of Section 881(c)(3)(B) of the Code or a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code, and (ii) each Bank that is incorporated under the laws of the United States of
America or a state thereof agrees that it will deliver to each of the Company and the Administrative Agent two duly completed and executed
copies of United States Internal Revenue Service Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding
Tax. Each Bank which so delivers a Form W-9, W-8BEN, W-8BEN-E, W-8IMY or W-8ECI (as applicable) further undertakes to deliver to
each of the Company and the Administrative Agent two additional copies of such form (or successor form) on or before the date that such
form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form so delivered by it,
and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Company or the Administrative Agent,
in each case certifying that such Bank is entitled to receive payments under any Credit Document without or with reduced deduction or
withholding of any United States federal income Taxes, unless such Bank promptly notifies the Company and Administrative Agent in writing
of its legal inability to do so.
(f) If
a payment made to a Bank under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank fails
to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Bank shall deliver to the Company and the Withholding Agent at the time prescribed by law and at such
times reasonably requested by the Withholding Agent or the Company such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent
or the Company as may be necessary for the Withholding Agent to comply with its obligations under FATCA and to determine that such Bank
has complied with such applicable reporting requirements or to determine the amount to deduct and withhold from such payment. Solely
for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the Company and the Withholding Agent in writing of its legal inability
to do so.
(g) If
any party hereto determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it
has been indemnified pursuant to this Section 8.05 (including the payment of additional amounts pursuant to this Section 8.05),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under Section 8.03
or this Section 8.05 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including
Taxes) of such indemnified party and without interest (other than interest paid by the relevant Governmental Authority). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in
no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the
payment of which would place the
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indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax
had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any
other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) Each
Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
attributable to such Bank (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified
Tax and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Bank’s failure to comply
with the provisions of Section 9.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent
shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts
at any time owing to such Bank under any Credit Document or otherwise payable by the Administrative Agent to the Bank from any other
source against any amount due to the Administrative Agent under this paragraph (h).
(i) The
Administrative Agent shall deliver to the Company on or prior to the date on which it becomes the Administrative Agent under this Agreement
(and from time to time thereafter upon the reasonable request of the Company), executed copies of IRS Form W-9 certifying that
the Administrative Agent is exempt from U.S. federal backup withholding Tax.
(j) Notwithstanding
the foregoing, nothing in this Section 8.05 shall interfere with the rights of any Bank to conduct its fiscal or Tax affairs in
such manner as it deems fit.
(k) Each
party’s obligations under this Section 8.05 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Bank, the termination of the Commitments and the repayment, satisfaction or discharge
of all obligations under any Credit Document.
SECTION 8.06.
Mitigation Obligations; Replacement of Banks.
(a) If
any Bank requests compensation under Section 8.03, or if the Company is required to pay any additional amount to any Bank or any
governmental body, agency or official for the account of any Bank pursuant to Section 8.05, then such Bank shall use reasonable
efforts to designate a different Applicable Lending Office for funding or booking its Loans and/or other Credit Exposure hereunder or
to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Bank (with
the concurrence of the Company), such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8.03
or 8.05, as the case may be, in the future and (ii) would not subject such Bank to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Bank. The
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Company hereby agrees to pay
all reasonable costs and expenses incurred by any Bank in connection with any such designation or assignment.
(b) If
(i) any Bank requests compensation under Section 8.03, (ii) the Company is required to pay any additional amount to
any Bank or any governmental body, agency or official for the account of any Bank pursuant to Section 8.05, (iii) a Bank
is a Non-Consenting Bank, (iv) any Bank is a Non-NAIC Approved Bank, or (v) any Bank is a Declining Bank under Section 2.18,
then, the Company may, at its sole expense and effort, upon notice to such Bank and the Administrative Agent, require such Bank to assign
and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06(c)), all its interests,
rights and obligations under this Agreement to an Assignee (which shall be a NAIC Approved Bank) that shall assume such obligations (which
Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the Company shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being assigned, each Fronting Issuing Banks), which consent
shall not unreasonably be withheld, (ii) such Bank shall have received payment of an amount equal to the outstanding principal
of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder,
from the Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other
amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 8.03 or payments
required to be made pursuant to Section 8.05, such assignment will result in a reduction in such compensation or payments, (iv) in
the case of any such assignment in respect of a Non-Consenting Bank, the applicable Assignee shall have consented to the applicable amendment,
waiver or consent, and (v) such assignment does not conflict with applicable law. A Bank shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Bank or otherwise, the circumstances entitling the Company
to require such assignment and delegation cease to apply.
Article IX
MISCELLANEOUS
SECTION 9.01.
Notices. All notices, requests and other communications to any party hereunder shall be in writing (including by electronic
mail or other electronic communication, if arrangements for doing so have been approved by such party) and shall be given to such party:
(a) in the case of any Obligor, at the Company’s address or electronic mail address set forth on the Company’s signature
page hereof, (b) in the case of the Administrative Agent, at its address or electronic mail address set forth on its respective
signature page hereof, (c) in the case of any Bank, at its address or electronic mail address set forth in its Administrative
Questionnaire or (d) in the case of any other party, such other address or electronic mail address as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Company. Each such notice, request or other communication shall
be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid and return receipt requested, (ii) if delivered by electronic mail or any other telecommunications device,
when transmitted to an electronic mail address (or by another means of electronic delivery) or (iii) if given by any other means,
when delivered at the relevant address specified by such party pursuant to this Section 9.01; provided that notices to the
Administrative Agent under Article II or Article VIII shall not be effective until received.
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Notices and other communications
to the Banks hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative
Agent and the applicable Bank. The Administrative Agent or the Company 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.
SECTION 9.02.
No Waivers. No failure or delay by the Administrative Agent or any Bank in exercising any right, power or privilege hereunder
or under any other Credit Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03.
Expenses; Indemnification; Non-Liability of Banks.
(a) The
Company shall pay (i) all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the Joint
Lead Arrangers and each of their Affiliates, including reasonable and documented fees and disbursements of one primary counsel and, if
reasonably necessary, a single local counsel in each relevant material jurisdiction, for the Administrative Agent and, solely in the
case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Administrative
Agent and Joint Lead Arrangers similarly situated taken as a whole, in connection with the preparation, due diligence, administration,
syndication and closing of this Agreement and the other Credit Documents, any waiver or consent hereunder or any amendment hereof or
any Default or alleged Default hereunder and (ii) if an Event of Default occurs and is continuing, all reasonable and documented
out-of-pocket costs and expenses incurred by the Administrative Agent and each Bank, including reasonable and documented fees and disbursements
of one firm of primary counsel and, if reasonably necessary, a single local counsel in each relevant material jurisdiction and, solely
in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Administrative
Agent and Joint Lead Arrangers similarly situated taken as a whole, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. All amounts due under this clause (a) shall be paid within thirty
(30) days after written demand therefor (in each case, together with backup documentation supporting such reimbursement request); provided
that, with respect to the Effective Date, all amounts due under this clause (a) shall be paid on the Effective Date solely to the
extent invoiced to the Company within three (3) Domestic Business Days prior to the Effective Date.
(b) The
Company agrees to indemnify the Administrative Agent, each Bank and each Confirming Bank and their respective Related Parties (each an
“Indemnitee”) and hold each Indemnitee harmless from and against any and all Liabilities, reasonable and documented
out-of-pocket costs and expenses of any kind, including, without limitation, costs of settlement and the reasonable and documented out-of-pocket
fees and disbursements of one counsel for the Indemnitees (unless the Indemnitees have actual or perceived conflicting interests, in
which case such expenses shall include the reasonable and documented out-of-pocket fees and disbursements
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of one additional counsel in
each relevant material jurisdiction and to each group of similarly affected Indemnitees), which may be incurred by such Indemnitee in
connection with, or as a result of, any actual or prospective claim, litigation, investigation or any investigative, administrative or
judicial proceeding (whether or not such Indemnitee shall be designated a party thereto or whether such proceeding is brought by the
Company, its Affiliates, its equity holders or its creditors) relating to or arising out of (i) 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 any other transactions contemplated hereby; (ii) any Loan or Letter of Credit (or any drawing honored thereunder) or the use
of proceeds therefrom (including any refusal by any Bank to honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not comply with the terms of such Letter of Credit); or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing clauses (i) and (ii), whether based on contract,
tort, or any other theory and regardless of whether any Indemnitee is a party thereto; provided that no Indemnitee shall have
the right to be indemnified hereunder to the extent that such Liabilities or related expenses have resulted from (x) the gross
negligence, willful misconduct or bad faith of such Indemnitee, (y) the material breach by such Indemnitee of its material obligations
hereunder or, in the case of a Confirming Bank, under its Confirming Bank Agreement or (z) any claim, litigation, or proceeding
solely among Indemnitees brought by any Indemnitee against another Indemnitee (other than any claim, litigation, or proceeding against
an Indemnitee acting in its capacity as a Joint Lead Arranger or Administrative Agent) that does not involve an act or omission (or alleged
act or omission) by the Company or any of its Subsidiaries, in the case of each of the foregoing clauses (x) and (y), as
determined in a final and non-appealable judgment by a court of competent jurisdiction. All amounts due under this clause (b) shall
be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request);
provided, however, that any such applicable Indemnitee shall promptly refund such amount to the extent that there is a final judicial
or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the
express terms of this clause (b). For the avoidance of doubt, this clause (b) shall not apply to Taxes, other than any Taxes that
represent Liabilities or related expenses arising from any non-Tax claim.
(c) To
the extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against the Administrative Agent,
any Joint Lead Arranger, any Bank and any Related Party of any of the foregoing (each such Person, a “Lender-Related Person”),
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated
hereby, any Loan, any Letter of Credit or the use of the proceeds thereof. None of the Company or its Related Parties shall have any
liability under this Section 9.03 for special, indirect, consequential or punitive damages arising out of, related to or in connection
with any aspect of this Agreement or any agreement or instrument contemplated hereby or the transactions contemplated hereby; provided
that this sentence shall not limit the Company’s indemnification obligations herein to the extent that such special, indirect,
consequential or punitive damages are included in any third party claim in connection with which an Indemnitee is otherwise entitled
to indemnification hereunder.
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(d) No
Lender-Related Person, the Company or any of its Subsidiaries (or the Company’s or any of its Subsidiaries’ respective Related
Parties) shall be liable for any Liabilities arising from the use by others of any information or other materials obtained through IntraLinks,
SyndTrak, ClearPar, DebtDomain or other similar information transmission systems in connection with this Agreement or any other Credit
Document, except to the extent any such Liabilities are found by a final, non-appealable judgment of a court of competent jurisdiction
to arise from the gross negligence, bad faith or willful misconduct of such Person.
(e) The
agreements in this Section 9.03 shall survive the resignation of the Administrative Agent, the replacement of any Bank, the termination
of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
SECTION 9.04.
Sharing of Payments. Each Bank agrees that if it shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Loan made by it or reimbursement
obligation or interest due with respect to any LC Disbursement made by it under a Letter of Credit which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and interest due with respect to any Loan made by such other
Bank or reimbursement obligation or interest due, as the case may be, with respect to any LC Disbursement made by such other Bank under
such Letter of Credit, the Bank receiving such proportionately greater payment shall purchase such participations in the Loans held by
or the LC Exposure by the other Banks under such Letter of Credit, as applicable, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the Loans and reimbursement obligations and interest with
respect to LC Disbursements made by the Banks under such Letter of Credit shall be shared by the Banks pro rata; provided that
(i) nothing in this Section 9.04 shall impair the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of indebtedness of the Company other than its indebtedness under
this Agreement and (ii) the provisions of this Section 9.04 shall not be construed to apply to any payment made by the Company
pursuant to and in accordance with the express terms of this Agreement. The Company agrees, to the fullest extent it may effectively
do so under applicable law, that any holder of a participation in any Loan or LC Exposure, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights with respect to such participation as fully as if such
holder of a participation were a direct creditor of the Company in the amount of such participation.
SECTION 9.05.
Amendments and Waivers. Subject to Section 8.01, any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Obligors and the Required Banks or by the Administrative Agent (with
the consent of the Required Banks) (and, if the rights or duties of the Administrative Agent or any Fronting Issuing Bank, in such capacity,
are affected thereby, by the Administrative Agent or such Fronting Issuing Bank, as the case may be); provided, that the Administrative
Agent may, with the consent of the Obligors and (to the extent applicable) each Fronting Issuing Bank (in each case, which shall not
be unreasonably withheld), specify by notice to the Banks modifications in the procedures set forth in Section 2.01(b); provided,
further, that no such amendment or waiver shall (i) increase the amount or extend the expiry date of the Commitment of any
Bank or increase the LC Exposure of any Bank, without the written consent of such Bank, (ii) reduce the principal amount of any
Loan
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or the amount of any reimbursement
obligation of the relevant Obligor in respect of any LC Disbursement, the rate or amount of interest thereon or any fees payable to any
Bank hereunder, without the written consent of each Bank directly and adversely affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan or for reimbursement of any LC Disbursement, or any interest thereon, or any fees
payable hereunder, or waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Bank directly and adversely affected thereby, (iv) change, or have the effect of changing, the pro rata sharing
of any payments required herein (including Section 2.13(b) or (c) or Section 9.04), without the written consent
of each Bank directly and adversely affected thereby, (v) change any of the provisions of this Section 9.05 or the definition
of “Required Banks” or “Applicable Percentage” or any other provision hereof specifying the number or percentage
of Banks required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the
written consent of each Bank, (vi) release any of the collateral provided for the LC Exposure pursuant to Sections 2.03(e) and
6.01 (other than as expressly provided in Section 2.03(e)) or release the Company’s guarantee of the Obligations of the Subsidiary
Account Parties pursuant to Section 2.01(g) without the written consent of each Bank or (vii) waive the conditions
precedent set forth in Section 3.02, without the written consent of each Bank or (viii) subordinate any Obligations in contractual
right of payment to any other Debt or other payment obligations, without the written consent of each Bank, other than any Debt that is
offered ratably to all Banks on substantially same terms and conditions and Banks are afforded a bona fide opportunity to participate.
SECTION 9.06.
Successors and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that the Company may not assign or otherwise transfer any of its rights or obligations under
this Agreement, without the prior written consent of each Bank.
(b) Any
Bank may at any time grant to one or more banks or other institutions (each a “Participant”) participating interests
in its Commitment or the Loans or any or all of its Letters of Credit. In the event of any such grant by a Bank of a participating interest
to a Participant, whether or not upon notice to the Company and the Administrative Agent, such Bank shall remain solely responsible for
the performance of its obligations hereunder, and the Company and the Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank’s rights and obligations under this Agreement. Any agreement pursuant to which any
Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the
obligations of the Company hereunder including, without limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in the proviso of Section 9.05 without the consent of the Participant. The Company
agrees that each Participant shall be entitled to the benefits of Article VIII with respect to its participating interest (subject
to the requirements and limitations therein, including the requirements under Sections 8.05(f) and (g) (it being understood
that the documentation required under Sections 8.05(f) and (g) shall be delivered to the participating Bank)) to the
same extent as if it were a Bank and had acquired its interest by assignment pursuant to subsection (c) or (d) of this
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Section 9.06. An assignment
or other transfer which is not permitted by subsection (c) or (d) of this Section 9.06 shall be given effect
for purposes of this Agreement only to the extent of a participating interest granted in accordance with this subsection (b). Each
Bank that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on
which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s
interest in the Loans, Letters of Credit or other obligations under this Agreement (the “Participant Register”); provided
that no Bank shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity
of any Participant or any information relating to a Participant’s interest in any Commitment, Loan, Letter of Credit or other obligations
under any Credit Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of
Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The
entries in the Participant Register shall be conclusive absent manifest error, and such Bank 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.
(c) Any
Bank may at any time assign to one or more NAIC Approved Banks (other than the Company, Affiliates of the Company, a Defaulting Bank
or a natural person, each an “Assignee”) all, or a proportionate part of all, of its rights and obligations under
this Agreement, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption executed by such
Assignee and such transferor Bank, with (and subject to) the consent (which in each case shall not be unreasonably withheld, conditioned
or delayed) of each of the Company, the Administrative Agent and each Fronting Issuing Bank; provided, that (i) if an Assignee
is an Affiliate of any Bank, an Approved Fund or was a Bank immediately prior to such assignment, no such consent of the Company shall
be required and (ii) if an Assignee is an Affiliate of any Bank, an Approved Fund or was a Bank immediately prior to such assignment,
no such consent of the Administrative Agent or any Fronting Issuing Bank shall be required; provided, further, that no
assignment shall be permitted to a Defaulting Bank; provided, further, that (x) the Company shall be deemed to have
consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Domestic Business
Days after having received notice thereof and (y) if an Event of Default occurs and is continuing, no such consent of the Company
shall be required; and provided, further, that any such assignment (other than an assignment to another Bank or an Affiliate
of any Bank or an assignment of the entire remaining amount of the transferor Bank’s Commitment and interests in outstanding Loans
and Letters of Credit) shall be in an amount that is at least $5,000,000 unless otherwise agreed by the Company and the Administrative
Agent. Upon execution and delivery of such Assignment and Assumption and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall
be required. In connection with any such assignment, the transferor Bank or Assignee shall pay to the Administrative Agent an administrative
fee for processing such assignment in the amount of $3,500 unless waived by the Administrative Agent in its sole discretion. If the Assignee
is not incorporated under the laws of the United States of America or a state thereof, it shall, prior to the
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first date on which interest
or fees are payable hereunder for its account, deliver to the Company and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income Taxes in accordance with Section 8.05(f).
(d) Any
Bank may at any time assign all or any portion of its rights under this Agreement to any Person to secure obligations of such Bank, including,
without limitation, to one or more of the Federal Reserve Banks which comprise the Federal Reserve System or other central banks. No
such assignment shall release the transferor Bank from its obligations hereunder.
(e) No
Participant shall be entitled to receive any greater payment under Section 8.03 or 8.05 than such Bank would have been entitled
to receive with respect to the rights transferred, unless such transfer is made (i) with the Company’s prior written consent,
(ii) by reason of the provisions of Section 8.02 or 8.06 requiring such Participant to designate a different Applicable Lending
Office under certain circumstances or (iii) prior to a Change in Law giving rise to such greater payment.
SECTION 9.07.
Collateral. Each of the Banks represents to the Administrative Agent and each of the other Banks that it in good faith
is not relying upon any Margin Stock as collateral in the extension or maintenance of the credit provided for in this Agreement.
SECTION 9.08.
New York Law. This Agreement and any claim, controversy, dispute, cause of action or proceeding (whether in contract, tort,
or otherwise and whether at law or in equity) based upon, arising out of, or relating to this Agreement and the transactions contemplated
hereby and thereby shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 9.09.
Judicial Proceedings.
(a) Submission
to Jurisdiction. Each Obligor hereby submits to the exclusive jurisdiction of the United States District Court for the Southern District
of New York sitting in the borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of
New York sitting in the borough of Manhattan), and any appellate court from any thereof, for purposes of all legal proceedings arising
out of or relating to this Agreement or any other Credit Document or the transactions contemplated hereby, and each Obligor hereby irrevocably
and unconditionally agrees that all claims in respect of any such proceeding may (and any such proceeding, claims, cross-claims or third-party
claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such federal (to the
extent permitted by law) or New York State court. Each Obligor irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
(b) Appointment
of Agent for Service of Process. Each Subsidiary Account Party irrevocably designates and appoints the Company, and the Company hereby
accepts such appointment, at its office in Lansing, Michigan set forth beneath the Company’s signature on the signature page hereof,
as the authorized agent of such Subsidiary Account Party, to accept and acknowledge on its behalf, service of any and all process which
may be served in any suit, action
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or proceeding of the nature referred
to in subsection (a) of this Section 9.09 in any federal or New York State court sitting in New York City. Said designation
and appointment shall be irrevocable by each Subsidiary Account Party until all of its reimbursement obligations, interest thereon and
all other amounts payable hereunder shall have been paid in full in accordance with the provisions hereof and thereof or, if earlier,
when such Subsidiary Account Party is terminated as a Subsidiary Account Party hereunder pursuant to Section 9.13.
(c) Service
of Process. Each Obligor hereby consents to process being served in any suit, action or proceeding of the nature referred to in subsection (a) of
this Section 9.09 in any federal or New York State court sitting in New York City by service of process upon its agent appointed
as provided in subsection (b) of this Section 9.09; provided that, to the extent lawful and possible, notice
of said service upon such agent shall be mailed by registered or certified air mail, postage prepaid, return receipt requested, to such
Obligor at its address specified on the signature page hereof (or, in the case of any Subsidiary that becomes a Subsidiary Account
Party in accordance with the terms of Section 9.13, on the signature page of the Subsidiary Joinder Agreement to which it
is a party) or to any other address of which such Obligor shall have given written notice to the applicable Bank. Each Obligor irrevocably
waives, to the fullest extent permitted by law, all claim of error by reason of any such service in such manner and agrees that such
service shall be deemed in every respect effective service of process upon such Obligor in any such suit, action or proceeding and shall,
to the fullest extent permitted by law, be taken and held to be valid and personal service upon and personal delivery to such Obligor.
(d) No
Limitation on Service or Suit. Nothing in any Credit Document shall affect the right of the Administrative Agent or any Bank to serve
process in any other manner permitted by law or limit the right of the Administrative Agent or any Bank to bring any suit, action, proceeding,
claim or counterclaim against the Company or its properties in the courts of any jurisdiction or jurisdictions.
SECTION 9.10.
Integration; Headings; Electronic Execution; Electronic Records; Counterparts.
(a) This
Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
(b) This
Agreement, any Credit Document, and any other Communication, including any Communication required to be in writing, may be in the form
of an Electronic Record and may be executed using Electronic Signatures. Each Obligor and each of the Administrative Agent and the Banks
agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent
as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and
binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually
executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including
both paper and electronic counterparts, but all such counterparts are one and
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the same Communication. For the
avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper
Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication
converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Banks may, at its
option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”),
which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications
in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the
same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Administrative
Agent is not under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person
pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative
Agent has agreed to accept such Electronic Signature, the Administrative Agent and each of the Banks shall be entitled to rely on any
such Electronic Signature purportedly given by or on behalf of any Obligor and/or any Bank without further verification and (b) upon
the request of the Administrative Agent or any Bank, any Electronic Signature shall be promptly followed by such manually executed counterpart.
For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them,
respectively, by 15 U.S.C. §7006, as it may be amended from time to time.
The Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness
of any Credit Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the
Administrative Agent’s reliance on any Electronic Signature transmitted by emailed .pdf or any other electronic means). The Administrative
Agent shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Credit Document by
acting upon, any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other
distribution or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine
and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Credit Documents
for being the maker thereof).
The Company and each Bank hereby
waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other
Credit Document based solely on the lack of paper original copies of this Agreement, such other Credit Document, and (ii) waives
any claim against the Administrative Agent, each Bank and each Related Party for any liabilities arising solely from the Administrative
Agent’s and/or any Bank’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the
failure of the Company to use any available security measures in connection with the execution, delivery or transmission of any Electronic
Signature.
(c) Posting
of Communications. The Company agrees that the Administrative Agent may, but shall not be obligated to, make any communications available
to the Banks by posting the communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen
by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although
the Approved Electronic Platform and its
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primary web portal are secured
with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including,
as of the Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal
authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Banks and
the Company acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the
Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Bank that are added to the Approved
Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Banks and the
Company hereby approves distribution of the communications through the Approved Electronic Platform and understands and assumes the risks
of such distribution.
(d) THE
APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS.
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 APPLICABLE PARTIES
IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL ANY PARTY HERETO, ANY JOINT LEAD ARRANGER,
ANY DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”)
HAVE ANY LIABILITY TO ANY OTHER PARTY HERETO OR ANY OTHER PERSON OR ENTITY FOR 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 THE COMPANY’S
OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE
APPROVED ELECTRONIC PLATFORM OR damages arising from the use by others of any information or other materials obtained through THE
APPROVED ELECTRONIC PLATFORM in connection with this Agreement or any other Credit Document EXCEPT TO THE EXTENT THAT SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY A FINAL AND NON-APPEALABLE JUDGMENT
TO HAVE RESULTED FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF SUCH APPLICABLE PARTY.
(e) Each
Bank agrees that notice to it (as provided in the next sentence) specifying that communications have been posted to the Approved Electronic
Platform shall constitute effective delivery of the communications to such Bank for purposes of the Credit Documents. Each Bank agrees
(i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of
such Bank’s (as applicable) email
103
address to which the foregoing
notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(f) Each
Bank and the Company agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated
to, store the communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable
document retention procedures and policies. Nothing herein shall prejudice the right of the Administrative Agent or any Bank to give
any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
SECTION 9.11.
Confidentiality. The Administrative Agent and each Bank agree that they will maintain the confidentiality of, and will
not use for any purpose (other than exercising its rights and enforcing its remedies hereunder and under the other Credit Documents),
any written or oral information provided under this Agreement by or on behalf of the Company (hereinafter collectively called “Confidential
Information”), subject to the Administrative Agent’s and each Bank’s (a) obligation to disclose any such
Confidential Information pursuant to a request or order under applicable laws and regulations or by a self-regulatory body or pursuant
to a subpoena or other legal process (in which case Administrative Agent and such Bank agrees (except with respect to any audit or examination
conducted by bank accountants or any self-regulatory authority or governmental or regulatory authority exercising examination or regulatory
authority), to the extent practicable and not prohibited by applicable law or regulation, to inform Company promptly thereof prior to
disclosure), (b) right to disclose any such Confidential Information to its bank examiners, auditors, counsel and other professional
advisors and to other Banks and to its subsidiaries and Affiliates and the subsidiaries and Affiliates of its holding company, provided
that the Administrative Agent or such Bank, as the case may be, shall cause each such subsidiary or Affiliate to maintain the Confidential
Information on the same terms as the terms provided herein, (c) right to disclose any such Confidential Information in connection
with any litigation or dispute involving the Banks and the Company or any of its Subsidiaries and Affiliates, (d) right to provide
such information to (i) participants, prospective participants, prospective assignees or assignees pursuant to Section 9.06,
to its prospective Confirming Bank or Confirming Bank or (with the consent of the Company (such consent not to be unreasonably withheld))
to its agents if prior thereto such participant, prospective participant, prospective assignee, prospective Confirming Bank, Confirming
Bank or agent agrees in writing to maintain the confidentiality of such information on terms substantially similar to those of this Section 9.11
as if it were a “Bank” party hereto or (ii) with the consent of the Company (except as otherwise permitted under clause
(b) above), any actual or prospective counterparty (or its advisors) to any swap, derivative or securitization transaction relating
to the Company and its obligations or to any actual or prospective credit insurance provider relating to the Company and its obligations
if prior thereto such counterparty or credit insurance provider agrees in writing to maintain the confidentiality of such information
on terms substantially similar to those of this Section 9.11 as if it were a “Bank” party hereto, (e) right to
disclose any such Confidential Information in connection with the exercise of any remedies hereunder or under any other Credit Document
or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder,
(f) with the prior written consent of the Company, right to disclose any such Confidential Information on a confidential basis
to any rating agency in connection with rating the Company or its Subsidiaries or this facility, (g) right to disclose any such
Confidential Information for purpose of establishing a “due diligence” defense and (h) right to provide such information
104
with the Company’s prior
written consent. Notwithstanding the foregoing, any such information supplied to a Bank, participant, prospective participant, prospective
assignee, prospective Confirming Bank or Confirming Bank under this Agreement shall cease to be Confidential Information to the extent
that such information (i) is or becomes publicly available other than by reason of disclosure by a Bank or any of its affiliates
in violation of this Section 9.11, (ii) is received by a Bank from a third party that is not subject to contractual or fiduciary
confidentiality obligations owing to Company or its Subsidiaries with respect to such information or (iii) is independently developed
by such Bank or any of its affiliates, in each case, so long as not based on information obtained in a manner that would otherwise violate
this Section 9.11. In addition, in consultation with the Company, the Administrative Agent and the Banks may disclose the existence
of this Agreement and information about the Effective Date and the size, type and purpose of the facilities contemplated by this Agreement
to market data collectors and other service providers to the lending industry and service providers to the Administrative Agent and the
Banks in connection with the administration of this Agreement, the other Credit Documents and the Commitments.
For the avoidance of doubt,
nothing in this Section 9.11 shall prohibit any person from voluntarily disclosing or providing any information within the scope
of this Section 9.11 to any Governmental Authority to the extent that any such prohibition on disclosure set forth in this Section 9.11
shall be prohibited by the laws or regulations applicable to such Governmental Authority.
SECTION 9.12.
WAIVER OF JURY TRIAL. EACH OBLIGOR, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY)
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
SECTION 9.13.
Joinder and Termination of Subsidiary Account Party.
(a) Any
direct or indirect wholly-owned Subsidiary of the Company that is organized under the laws of the United States and that is organized,
licensed or regulated under applicable law as an insurance or reinsurance company may, upon the request of the Company at any time, upon
not less than three Domestic Business Days’ notice to the Administrative Agent, become a party to this Agreement as a Subsidiary
Account Party, provided that such Subsidiary shall have delivered an executed Subsidiary Joinder Agreement, substantially in the
form of Exhibit G hereto, to the Administrative Agent for acceptance by it (which shall promptly notify the Banks), and
provided further that on and as of the date of acceptance of such Subsidiary Joinder
105
Agreement by the Administrative
Agent (i) no Default or Event of Default shall have occurred and be continuing, (ii) the Banks shall have received all documents
and instruments as they may reasonably request related to such Subsidiary, including legal opinions and information required to comply
with “know your customer” or similar identification requirements of any Bank, in each case, to the reasonable satisfaction
of the Banks and (iii) such Subsidiary Account Party shall be deemed to have appointed the Company as its authorized agent pursuant
to Section 9.09(b) to accept service of any and all process which may be served in any suit, action or proceeding of any
nature in any federal or New York State court sitting in New York City arising out of or relating to this Agreement or any other Credit
Document or the transactions contemplated hereby.
(b) The
Company may, at any time at which a Subsidiary Account Party shall not be an account party with respect to an outstanding Letter of Credit
and shall not have any outstanding Obligations hereunder, terminate such Subsidiary Account Party as a Subsidiary Account Party hereunder
by delivering an executed notice thereof, substantially in the form of Exhibit H hereto, to the Administrative Agent (which
shall promptly notify the Banks). Immediately upon the receipt by the Administrative Agent of such notice, all commitments of the Banks
to issue Letters of Credit for the account of such Subsidiary Account Party and all rights of such Subsidiary Account Party hereunder
shall terminate and such Subsidiary Account Party shall immediately cease to be a Subsidiary Account Party hereunder; provided
that all obligations of such Subsidiary Account Party as a Subsidiary Account Party hereunder arising in respect of any period in which
such Subsidiary Account Party was, or on account of any action or inaction by such Subsidiary Account Party as, a Subsidiary Account
Party hereunder shall survive such termination.
SECTION 9.14.
Certain Notices. Each Bank hereby notifies each Obligor that pursuant to the requirements of the PATRIOT Act and the Beneficial
Ownership Regulation, such Bank may be required to obtain, verify and record information that identifies each Obligor, which information
includes the name and address of each Obligor and other information that will allow such Bank to identify each Obligor in accordance
with the PATRIOT Act and the Beneficial Ownership Regulation.
SECTION 9.15.
No Fiduciary Duty. The Administrative Agent, each Bank and their Affiliates (collectively, solely for purposes of this
Section 9.15, the “Banks”), may have economic interests that conflict with those of the Obligors, their respective
stockholders and/or their affiliates. The Company agrees that nothing in the Credit Documents or otherwise will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Bank, on the one hand, and the Company, its
stockholders or its affiliates, on the other. The Company acknowledges and agrees that (i) the transactions contemplated by the
Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions
between the Banks, on the one hand, and the Company, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Bank has assumed an advisory or fiduciary responsibility in favor of the Company, its stockholders or its affiliates
with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading
thereto (irrespective of whether any Bank has advised, is currently advising or will advise the Company, its stockholders or its Affiliates
on other matters) or any other obligation to the Company except the obligations expressly set forth in the Credit Documents and (y) each
Bank is acting solely as principal and not as the agent or fiduciary of the Company,
106
its management, stockholders
or creditors or any other Person. The Company acknowledges and agrees that the Company has consulted its own legal and financial advisors
to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions
and the process leading thereto. The Company agrees that it will not claim that any Bank has rendered advisory services of any nature
or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
SECTION 9.16.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in
any Credit 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 Credit Document may be subject to the Write-Down and Conversion
Powers of an 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 an applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent entity, 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 Credit
Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of an applicable Resolution
Authority.
SECTION 9.17.
Right of Setoff. If an Event of Default shall have occurred and be continuing, each Bank and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Bank or Affiliate
to or for the credit or the account of any Obligor against any of and all the obligations of any Obligor at the time existing under this
Agreement held by such Bank, irrespective of whether or not such Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Bank under this Section 9.17 are in addition to other rights and remedies (including
any other rights of setoff) which such Bank may have. Each Bank agrees to notify the Administrative Agent and the Company 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.
107
SECTION 9.18.
Severability. If any provision of this Agreement or the other Credit Documents is held to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions of this Agreement and the other Credit Documents shall not be affected
or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Without limiting the foregoing provisions of this Section 9.18, if and to the extent that the enforceability
of any provisions in this Agreement relating to Defaulting Banks shall be limited by Debtor Relief Laws, as determined in good faith
by the Administrative Agent or any L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent
not so limited.
SECTION 9.19.
Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Credit Document, the interest paid
or agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest permitted by Law (the “Maximum
Rate”). If the Administrative Agent or any Bank shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining
whether the interest contracted for, charged, or received by the Administrative Agent or a Bank exceeds the Maximum Rate, such Person
may, to the extent permitted by 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.
[Signature Pages Follow]
108
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
COMPANY
JACKSON FINANCIAL INC.
By:
/s/ James Schultz
Name:
James Schulz
Title:
Vice President and Treasurer
U.S. Federal Tax Identification No.: 94-0486152
Address for Notices:
Jackson Financial Inc.
1 Corporate Way
Lansing, Michigan 48951
Attn: Jim Schultz, Treasurer
Email: james.schultz@jackson.com
(with copies of Notices of Default to:
Attn: General Counsel
Email: carrie.chelko@jackson.com,
mb_corporatelegal@jackson.com,
notice@jackson.com, and
jacksoncashmanagement@jackson.com
[Jackson Financial Inc. – Signature Page to
Revolving Credit Agreement]
ADMINISTRATIVE AGENT
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
/s/ Kristina Trepanier
Name:
Kristina Trepanier
Title:
Executive Director
Address for Notices (for the Administrative Agent)
Administrative
Agent’s Office
(for payments and Requests for Credit Extensions):
Wells Fargo Bank, National Association
1525 W W.T. Harris Blvd
MAC D1109-019
Charlotte, NC 28262
Attention: Syndication Agency Services
Tel. No. (704) 427-2899
Fax No. (704) 715-0017
Email: AgencyServices.Requests@WellsFargo.com
L/C
ISSUER:
Wells Fargo Bank, National Association
1525 W W.T. Harris Blvd
MAC D1109-019
Charlotte, NC 28262
Attention: Syndication Agency Services
Tel. No. (704) 427-2899
Fax No. (704) 715-0017
Email: AgencyServices.Requests@WellsFargo.com
Other
Notices as Administrative Agent:
in the case of all notices (other than notices of borrowing or
continuation), financial statements, compliance certificates, request for amendments and waivers to:
Wells Fargo Bank, National Association
550 S Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Kristina Trepanier
Tel. No. (612) 667-0014
Email: Kristina.Trepanier@WellsFargo.com
[Jackson Financial Inc. – Signature Page to
Revolving Credit Agreement]
BANKS
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Bank
By:
/s/ Kristina Trepanier
Name:
Kristina Trepanier
Title:
Executive Director
[Jackson Financial Inc.
– Signature Page to Revolving Credit Agreement]
BNP PARIBAS, as a Bank
By:
/s/ Patrick McNeely
Name:
Patrick McNeely
Title:
Managing Director
By:
/s/ Patrick Cunnane
Name:
Patrick Cunnane
Title:
Director
[Jackson Financial Inc.
– Signature Page to Revolving Credit Agreement]
SOCIETE GENERALE, as a Bank
By:
/s/ Daniel Hartmann
Name:
Daniel Hartmann
Title:
Director
[Jackson Financial Inc.
– Signature Page to Revolving Credit Agreement]
THE BANK OF NEW YORK MELLON,
as a Bank
By:
/s/ Ferris Joanis
Name:
Ferris Joanis
Title:
Senior Vice President
[Jackson Financial Inc.
– Signature Page to Revolving Credit Agreement]
DEUTSCHE BANK AG NEW YORK BRANCH, as a Bank
By:
/s/ Marko Lukin
Name:
Marko Lukin
Title:
Director
By:
/s/ Ali, on Lugo
Name:
Ali, on Lugo
Title:
Vice President
[Jackson Financial Inc.
– Signature Page to Revolving Credit Agreement]
BANK OF AMERICA, N.A., as a Bank
By:
/s/ Sidhima Daruka
Name:
Sidhima Daruka
Title:
Director
[Jackson
Financial Inc. - Signature Page to Revolving Credit Agreement]
GOLDMAN SACHS BANK USA, as a Bank
By:
/s/ Ananda DeRoche
Name:
Ananda DeRoche
Title:
Authorized Signatory
[Jackson
Financial Inc. – Signature Page to Revolving Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By:
/s/ SRISUPEN ANDERSEN
Name:
SRISUPEN ANDERSEN
Title:
SVP
[Jackson
Financial Inc. – Signature Page to Revolving Credit Agreement]
THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Bank
By:
/s/ Betty Chang
Name:
Betty Chang
Title:
Authorized Signatory
[Jackson
Financial Inc. - Signature Page to Revolv ing Credit Agreement]
JPMORGAN CHASE BANK, N.A., as a Bank
By:
/s/ Thomas A. Kiepura II
Name:
Thomas A. Kiepura II
Title:
Managing Director
[Jackson
Financial Inc. - Signature Page to Revolv ing Credit Agreement]
MORGAN STANLEY BANK, N.A., as a Bank
By:
/s/ Breanna Duroche
Name:
Breanna Duroche
Title:
Authorized Signatory
[Jackson
Financial Inc. - Signature Page to Revolv ing Credit Agreement]
ROYAL BANK OF CANADA, as a Bank
By:
/s/ Mrudul Kotia
Name:
Mrudul Kotia
Title:
Authorized Signatory
[Jackson
Financial Inc. - Signature Page to Revolv ing Credit Agreement]
THE NORTHERN TRUST COMPANY, as a Bank
By:
/s/ Peter Romanchuk
Name:
Peter Romanchuk
Title:
Vice President, Commercial Banker
[Jackson
Financial Inc. - Signature Page to Revolv ing Credit Agreement]
EXHIBIT A
[Form of Note]
NOTE
New York, New York
, 20__
For value received, Jackson
Financial Inc., a Delaware corporation (the “Company”), promises to pay to [__] (the “Bank”), for
the account of its Applicable Lending Office, the unpaid principal amount of each Loan made by the Bank to the Company pursuant to the
Credit Agreement referred to below on the date provided for in the Credit Agreement. The Company promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal or other immediately available funds at the office of the
Administrative Agent.
All Loans made by the Bank,
the respective dates, amounts, types and maturity thereof and all repayments of the principal thereof shall be recorded on its books
by the Bank and, prior to any transfer hereof, appropriate notations to evidence the foregoing information with respect to each such
Loan then outstanding shall be endorsed by the Bank on the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any such recordation or endorsement shall not affect the
obligations of the Company hereunder or under the Credit Agreement.
This note is one of the Notes
referred to in the Revolving Credit Agreement dated as of June 30, 2026 among the Company, the Subsidiary Account Parties from time
to time party thereto, the Banks from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent
(as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”). Terms defined in the Credit Agreement are used herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.
THIS NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the undersigned has executed
this Note as of the day and year first above written.
JACKSON FINANCIAL INC.
By:
Name:
Title:
Note (cont’d)
LOANS AND PAYMENTS OF PRINCIPAL
Date
Amount of
Loan
Type
of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
EXHIBIT B
[Form of Syndicated Letter of Credit]
FOR INTERNAL IDENTIFICATION
PURPOSES ONLY
Our N° [ ]
Applicant: [ ]
Issue Date: [ ]
Irrevocable Letter of Credit N° [ ]
Beneficiary:
[ ]
Attention:
[ ]
To: [●]
Dear Sirs
Ladies and Gentlemen:
We, the Issuing Banks, whose names are set out
in Appendix 1 (collectively, the “Issuing Banks”, and each an “Issuing Bank”), hereby establish
this irrevocable, unconditional (except for the conditions stated herein) Letter of Credit in favor of the aforesaid addressee (“Beneficiary”)
for drawings up to United States Dollars [●] US$ [●], effective immediately. This Letter of Credit is issued by [●]1
for and on behalf of the Issuing Banks and is presentable and payable at [●]2 (“Agent”) for the amounts
specified in any sight draft drawn hereunder, which amounts shall not, when aggregated with all other amounts paid by the Issuing Banks
to the Beneficiary under this Letter of Credit, exceed the amount specified above, and expires with our close of business on [●]
1 Must
be filled in with the names of a “qualified bank” within the meaning of New York Insurance Department Regulation 133, 11
N.Y.C.R.R. pt. 79, as amended from time to time, with a US Location.
2 Must
be filled in with the names of a “qualified bank” within the meaning of New York Insurance Department Regulation 133, 11
N.Y.C.R.R. pt. 79, as amended from time to time, with a US Location. The Agent must be one of the Issuing Banks.
(as may be extended as set forth herein, the
“Expiration Date”). In no way are the obligations of any Issuing Bank under this Letter of Credit contingent upon
reimbursement with respect thereto or upon any Issuing Bank’s ability to perfect any lien, security interest or any other reimbursement.
[With respect to the following Issuing Bank(s), this Letter of Credit is hereby confirmed by the bank listed next to such Issuing Bank’s
name on Appendix I hereto (each confirming bank, a “Confirming Bank”) and each such Confirming Bank is formally designated
by such Issuing Bank as its agent for the receipt and payment of drafts under the Letter of Credit: [●]3]4
The term “Beneficiary” includes any
successor by operation of law of the named Beneficiary including, without limitation, any liquidator, rehabilitator, receiver or conservator.
We hereby undertake to promptly honour your sight
draft(s) drawn on the Agent, indicating its Letter of Credit number [ ], for all or any part of this Letter of Credit upon presentation
to the Agent at [●]5on or before the expiration date or any automatically extended expiration date. Each Issuing Bank
makes this undertaking for an amount not to exceed the aggregate amount available under this Letter of Credit multiplied by such Issuing
Bank’s percentage obligation as set forth in Appendix 1. Payment by the Agent with respect of amounts owed by each Issuing Bank
hereunder shall be made upon receipt of funds, transferred by such Issuing Bank to the Agent, in respect of this undertaking to the Beneficiary’s
account specified in the sight draft. The obligations of the Issuing Banks under this Letter of Credit shall be several and not joint.
Upon the transfer by an Issuing Bank to the Agent of the amount specified in a sight draft drawn on such Issuing Bank, the Issuing Bank
shall be fully discharged of its obligations under this Letter of Credit with respect to such sight draft. The failure of any Issuing
Bank to make funds available to the Agent for payment under this Letter of Credit shall not relieve any other Issuing Bank of its obligation
hereunder to make funds available to the Agent; neither the Agent nor any Issuing Bank shall be responsible for the failure of any other
Issuing Bank to make funds available to the Agent.
Except as expressly stated herein, this undertaking
is not subject to any agreement, condition or qualification. The obligation of the Issuing Banks under this Letter of Credit is the individual
obligation of each Issuing Bank and is in no way contingent upon reimbursement with respect thereto.
It is a condition of this Letter of Credit that
the Expiration Date shall be deemed to be automatically extended, without amendment, for successive one year periods of the then-current
Expiration Date, unless [sixty (60)]6 days prior to any such Expiration Date, we send you notice by registered mail or by
overnight courier, addressed to [ ], that we elect not to consider this Letter of Credit extended for any such additional period.
3 Insert
the names of the Issuing Banks that are not a “qualified bank” within the meaning of New York Insurance Department Regulation
133, 11 N.Y.C.R.R. Part 79, as amended from time to time.
4 To
be inserted in case any Issuing Bank is not a “qualified bank” within the meaning of New York Insurance Department Regulation
133, 11 N.Y.C.R.R. pt. 79, as amended from time to time.
5 Must
be filled in with the names of a “qualified bank” within the meaning of New York Insurance Department Regulation 133, 11
N.Y.C.R.R. pt. 79, as amended from time to time, with a US Location.
6 Or
such shorter or longer period of time as may be agreed between Jackson Financial Inc. and the Agent.
This Letter of Credit is subject to and governed
by the Laws of the State of New York and the 2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International
Chamber of Commerce (Publication N° 600) and, in the event of any conflict, the Laws of the State of New York will control. If this
Letter of Credit expires during any interruption of business as described in Article 36 of said Publication 600, the Issuing Bank
hereby specifically agrees to effect payment if this Letter of Credit is drawn against, in accordance with the terms and conditions of
such Letter of Credit, within thirty (30) days after resumption of our business.
This Letter of Credit and the qualification of
the Issuing Bank or confirming bank complies with New York Insurance Department Reg 133 (11 N.Y.C.R.R. Part 79), as of the date
hereof. In compliance with Reg 133, this Letter of Credit is issued, presentable and payable at the physical location in the U.S. of
a Qualified Bank, as defined in Reg 133.
By your acceptance hereof, you agree that (i) the
Agent, in such capacity, shall have no obligation or liability to honor any drawing under this Letter of Credit, provided, however, that
nothing in this clause (i) shall relieve the Agent of its obligations, if any, (a) as an Issuing Bank, (b) as a Confirming
Bank or (c) to make payment hereunder for your account with funds transferred to the Agent by other Issuing Banks with respect to
sight drafts presented by you; (ii) neither any Issuing Bank nor the Agent shall be responsible for the obligations of any other
Issuing Bank, including any obligation to make payment hereunder; and (iii) an Issuing Bank may assign in full or in part any or
all of its obligations to another bank(s) and in such event the assignee bank(s) would becoming Issuing Bank(s) (as the
case may be) in the applicable percentage(s) or the assignor bank who would cease to be obligated under this Letter of Credit to
the extent of such assigned obligations; provided that no such event will reduce the then available amount under this Letter of Credit.
Upon the occurrence of any such event contemplated
in (iii) above, the Agent will provide prompt notice to you of such event, including any change in the identities of the Issuing
Banks severally but not jointly liable in respect of the aggregate undrawn amount of this Letter of Credit (based upon their respective
applicable percentages thereof) and any change in such applicable percentages (and in the identities of any related Confirming Banks).
The Agent has signed this Letter of Credit as
agent for disclosed principals and accordingly shall be under no obligation to the Beneficiary except to the extent of its obligation
as the Agent hereunder.
Very truly yours
[ ]
as Agent
for and on behalf of The Issuing Banks (as per
attached Appendix 1)
APPENDIX 1
Issuing Banks’ L/C Proportions
Name
and Address of Issuing
Bank
Name
and Address of
Confirming Bank (if applicable)
Percentage
Obligation
Total
Value:
APPENDIX 2
Form of Demand (U.S. dollars)
[on Beneficiary’s letterhead]
Dear Sir/Madam
[Beneficiary]
LETTER OF CREDIT NO.
With reference to the above, we hereby claim
payment of [●] U.S. dollars (USD [●]) the amount of which should be paid to the following account:
[●]
EXHIBIT C-1
[Form of Letter of Credit Request]
Wells Fargo Bank, National Association, as administrative
agent
under the Credit Agreement referred to below
[[NAME OF FRONTING ISSUING BANK], as Fronting
Issuing Bank
under the Credit Agreement referred to below]
,
Attention:
Re: [●]
(the “Obligor”)
Reference is made to the Credit Agreement, dated
as of June 30, 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Jackson Financial Inc., the Subsidiary Account Parties from time to time party
thereto, the Banks from time to time party thereto and Wells Fargo Bank, National Association, as administrative agent. Capitalized terms
used herein without definition are used as defined in the Credit Agreement.
[The Obligor hereby gives you notice pursuant
to Section 2.01(a) of the Credit Agreement, of its request for your issuance of a [Syndicated][Fronted] Letter of Credit, in
the form attached hereto, for the benefit of [Name and address of Beneficiary], in the amount of $ ,
to be issued on , (the
“Issue Date”) with an expiration date of , .The
requested terms and conditions of the [Syndicated][Fronted] Letter of Credit are contained in the form attached hereto.]
[The Obligor hereby gives you notice pursuant
to Section 2.01(a) of the Credit Agreement, of its request for your amendment of the [Syndicated][Fronted] Letter of Credit
attached hereto, currently issued for the benefit of [Name and address of Beneficiary]. The Obligor requests that the amended [Syndicated][Fronted]
Letter of Credit be in the form attached hereto, for the benefit of the Beneficiary, in the amount of $ ,
to be amended as of ,
(the “Amendment Date”) with an expiration date of ,
. The requested terms and conditions of the amended [Syndicated][Fronted]
Letter of Credit are contained in the form attached hereto.]
[The Obligor hereby gives you notice pursuant
to Section 2.01(a) of the Credit Agreement, of its request for your extension of the expiration date of the [Syndicated][Fronted]
Letter of Credit attached hereto, for the benefit of [Name and address of Beneficiary]. The Obligor requests that the extension take
effect on , (the
“Extension Date”) with a new expiration date of ,
. The terms and conditions of the [Syndicated][Fronted]
Letter of Credit otherwise remain the same and are contained in the [Syndicated][Fronted] Letter of Credit attached hereto.]
[●],
as the Obligor
By:
Name:
Title:
EXHIBIT C-2
[Form of Letter of Credit Application]
Attached.
EXHIBIT D
[Form
of Assignment and Assumption]
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Transfer Date set forth below and is
entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee]
(the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption
as if set forth herein in full.
For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Transfer Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its
capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the facility
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the credit transactions governed thereby or in any
way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
Assignor:
Assignee:
[and
is an Affiliate of [identify Bank]/an Approved Fund]
Administrative
Agent:
Wells
Fargo Bank, National Association, as the administrative agent under the Credit Agreement
Credit
Agreement:
Revolving
Credit Agreement, dated as of June 30, 2026, among Jackson Financial Inc., the Subsidiary Account Parties from time to time party
thereto, the Banks from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent
Assigned
Interest:
Facility
Assigned
Aggregate
Amount of
Commitment/LC
Exposure for all
Banks
Amount
of
Commitment/LC
Exposure
Assigned
Percentage
Assigned of
Commitment/LC
Exposure7
$
$
%
$
$
%
$
$
%
Transfer
Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
7 Set forth, to at least 9 decimals, as a percentage of the
Commitment/LC Exposure of all Banks thereunder.
The terms set forth in this Assignment
and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Name:
Title:
[Consented to] and Accepted:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative
Agent
By:
Name:
Title:
[Consented to:]
NAME OF FRONTING ISSUING BANK
By:
Name:
Title:
[Consented to:]
JACKSON FINANCIAL INC.
By:
Name:
Title:
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
Representations and Warranties.
Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes
no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any collateral thereunder,
(iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the Credit
Agreement or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under the Credit Agreement.
Assignee.
The Assignee (a) represents and warrants that (i) it is a NAIC Approved Bank, (ii) it is not a Defaulting Bank, (iii) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (iv) it satisfies the requirements, if any, specified in the Credit
Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (v) from and after the
Transfer Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Bank thereunder, (vi) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative
Agent or any other Bank, and (vii) if it is a Bank that is not incorporated under the laws of the United States of America or any state
thereof, attached to this Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as
a Bank.
Payments.
From and after the Transfer Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments
of reimbursement obligations, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Transfer
Date and to the Assignee for amounts which have accrued from and after the Transfer Date.
General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.
Any signature to this Assignment and Assumption may be delivered by facsimile, electronic mail (including pdf) or any electronic signature
complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and
any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the
fullest extent permitted by applicable law. This Assignment and Assumption shall be governed by, and construed in accordance with, the
law of the State of New York.
EXHIBIT E
[Form of Confirming Bank Agreement]
[Letterhead of Issuing Bank]
[●], 20__
[Name of Confirming Bank]
[Address]
Ladies and Gentlemen:
Reference is made to the Revolving Credit
Agreement dated as of June 30, 2026 (as amended, restated, amended and restated, supplemented and otherwise modified and in effect on
the date hereof, the “Credit Agreement”), among Jackson Financial Inc., the Subsidiary Account Parties from time to
time party thereto, the Banks from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent for
the Banks. Terms defined in the Credit Agreement are used herein with the same meanings.
The undersigned is an issuing Bank (the
“Issuing Bank”) under the Credit Agreement but is not on the date hereof a bank listed on the most current “List
of Qualified U.S. Financial Institutions” approved by the NAIC. Accordingly, in order to be an “NAIC Approved Bank”
for the purposes of the Credit Agreement, the undersigned hereby requests that you be a Confirming Bank with respect to the undersigned
for the purposes of the Credit Agreement and each Letter of Credit issued by the Issuing Bank thereunder.
By your signature below, you undertake that
any draft drawn under and in strict compliance with the terms of any Letter of Credit issued by the Issuing Bank under the Credit Agreement
will be duly honored by you as if, and to the extent, you were the Issuing Bank under such Letter of Credit. Notwithstanding the foregoing,
your liability under all Letters of Credit at any one time issued under the Credit Agreement shall be limited to an amount (the “Liability
Limit”) equal to the Commitment of the undersigned under the Credit Agreement in effect on the date hereof (an amount equal
to $[ ]), as such Liability Limit may be increased after the date hereof with your prior written consent by reason of an increase in
the Commitment of the undersigned under the Credit Agreement. In addition, you hereby irrevocably appoint and designate the Administrative
Agent as your attorney-in-fact, acting through any duly authorized officer of Wells Fargo Bank, National Association, to execute and
deliver, at any time prior to the Commitment Termination Date in effect on the date of this letter agreement, in your name and on your
behalf each Letter of Credit to be confirmed by you in accordance herewith and with the Credit Agreement. You agree that, promptly upon
the request of the Administrative Agent, you will furnish to the Administrative Agent such powers of attorney or other evidence as any
beneficiary of any Letter of Credit may reasonably request in order to demonstrate that the Administrative Agent has the power to act
as attorney-in-fact for you in connection with the execution and delivery of such Letter of Credit.
In consideration of the foregoing, the undersigned
agrees that if you shall make any LC Disbursement in respect of any Letter of Credit, regardless of the identity of the account party
of
such Letter of Credit, the undersigned shall reimburse you by
paying to you an amount equal to the amount of the LC Disbursement made by you, such payment to be made not later than 5:00 p.m., New
York City time, on the Domestic Business Day immediately following the day that the undersigned receives notice of such LC Disbursement.
The undersigned’s obligations to reimburse you as provided in the foregoing sentence shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this letter agreement under any and all circumstances whatsoever, and
irrespective of any event or circumstance of the type described in Section 2.11(b) of the Credit Agreement (or of any analogous event
or circumstance relating to the undersigned).
If any LC Disbursement is made by you, then,
unless the undersigned shall reimburse the amount of such LC Disbursement to you in full on the date such LC Disbursement is made by
you, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding
the date of reimbursement, at the rate per annum equal to (i) the Federal Funds Rate to but excluding the date three Business Days after
such LC Disbursement and (ii) from and including the date three Business Days after such LC Disbursement, 2% plus the Federal
Funds Rate.
This letter agreement shall be governed
by and construed in accordance with the law of the State of New York.
Please indicate your acceptance of the foregoing
terms and conditions by signing the three enclosed copies of this letter agreement and returning (a) one such signed copy to the undersigned
at the address indicated above, (b) one such signed copy to the Administrative Agent at Wells Fargo Bank, National Association, 1525
W W.T. Harris Blvd, MAC D1109-019, Charlotte, NC 28262, Attention: Syndication Agency Services (Tel. No. (704) 427-2899; Fax No. (704)
715-0017; Email:AgencyServices.Requests@WellsFargo.com) and (c) one such signed copy to the Company at its address set forth on the Company’s
signature page of the Credit Agreement.
[NAME OF ISSUING BANK]
By:
Name:
Title:
AGREED AS AFORESAID:
[NAME OF CONFIRMING BANK]
By:
Name:
Title:
EXHIBIT F
[FORM OF
MATURITY DATE EXTENSION REQUEST]
[Date]
Wells Fargo Bank, National Association
550 S Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Kristina Trepanier
Tel. No. (612) 667-0014
Email: Kristina.Trepanier@WellsFargo.com
Ladies and Gentlemen:
Reference is made to the Credit Agreement
dated as of June 30, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Jackson Financial Inc., the Subsidiary Account Parties from time to time party thereto, the Banks from time
to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent. Capitalized terms used but not otherwise defined
herein have the meanings assigned to them in the Credit Agreement. In accordance with Section 2.18 of the Credit Agreement, the undersigned
hereby requests an extension of the Maturity Date for an additional period of [ ] days.
JACKSON FINANCIAL INC., as Borrower,
By:
Name:
Title:
EXHIBIT G
[Form of Subsidiary Joinder Agreement]
[ ], 20[ ]
To Wells Fargo Bank, National Association,
as Administrative Agent
Wells Fargo Bank, National Association
550 S Tryon Street, 14th Floor
Charlotte, NC 28202
Attention: Kristina Trepanier
Tel. No. (612) 667-0014
Email: Kristina.Trepanier@WellsFargo.com
Each of the Banks party to the
Credit Agreement referred to below
Re: Subsidiary Joinder Agreement
Ladies and Gentlemen:
Reference is made to the Credit Agreement
dated as of June 30, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Jackson Financial Inc. (the “Company”), the Subsidiary Account Parties from time to time
party thereto, the Banks from time to time party thereto and Wells Fargo Bank, National Association, as the Administrative Agent (the
“Administrative Agent”). Capitalized terms used but not defined herein shall have the respective meanings assigned
to such terms in the Credit Agreement.
The Company and the “Subject Subsidiary”
(as identified on the signature pages below), have executed and hereby deliver this Subsidiary Joinder Agreement, pursuant to Section
9.13(a) of the Credit Agreement, in order to designate the Subject Subsidiary as a Subsidiary Account Party to the Credit Agreement.
Accordingly, the Company and the Subject Subsidiary
hereby represent and warrant and agree that as of the “Joinder Effective Date” (as defined below):
the Subject Subsidiary is a direct or indirect
wholly-owned Subsidiary of the Company; the Subject Subsidiary is subject to and bound by each of the obligations of a Subsidiary Account
Party contained in the Credit Agreement as if the Subject Subsidiary were an original signatory to such Credit Agreement;
no Default or Event of Default has occurred
and is continuing under the Credit Agreement;
the guarantee of the Company contained in
Section 2.01(g) of the Credit Agreement applies to all of the obligations of the Subject Subsidiary pursuant thereto; and
the Subject Subsidiary’s addresses for
notices, other communications and service of process provided for in the Credit Agreement shall be given in the manner, and with the
effect, specified in Sections 9.01 and 9.09(c) of the Credit Agreement to it at its “Address for Notices” specified
on the signature pages below.
This Subsidiary Joinder Agreement shall become
effective as of the date (the “Joinder Effective Date”) on which the Administrative Agent confirms its acceptance
of this Subsidiary Joinder Agreement as provided on the signature pages below in accordance with the terms of the Credit Agreement. As
of the Joinder Effective Date, the Subject Subsidiary shall be entitled to the rights, and subject to the obligations, of a Subsidiary
Account Party contained in the Credit Agreement. Except as expressly herein agreed with respect to the joinder of the Subject Subsidiary
as a Subsidiary Account Party, the Credit Agreement shall remain unchanged and in full force and effect.
This Subsidiary Joinder Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one and the same agreement. Any signature to this Subsidiary
Joinder Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S.
federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by
applicable law. This Subsidiary Joinder Agreement shall be governed by, and construed in accordance with, the law of the State of New
York.
COMPANY
JACKSON FINANCIAL INC.
By:
Name:
Title:
SUBJECT SUBSIDIARY
[________________________________________]
a [___________________________ ] [corporation]
By:
Name:
Title:
Address for Notices
[_______________________]
[_______________________]
[_______________________]
Attn: ___________________
Tel: [___________________]
Fax: [__________________]
Agreed and Accepted:
this [_______] [th] day of [_________], 20[__]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
By: __________________________
Name:
Title:
EXHIBIT H
[Form of Subsidiary Termination Notice]
[Date]
To: Wells Fargo Bank, National Association (the “Administrative
Agent”)
From: Jackson Financial Inc. (the “Company”)
Re: Credit Agreement dated as of June 30, 2026
(as amended, restated, amended and restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”) among the Company, the Subsidiary Account
Parties from time to time party thereto, the Banks from time to time party thereto (the “Banks”)
and the Administrative Agent
The Company hereby gives notice pursuant to Section 9.13(b)
of the Credit Agreement that, effective as of the date hereof and subject to the conditions set forth in Section 9.13(b) of the Credit
Agreement, [______] is terminated as a Subsidiary Account Party under the Credit Agreement and all commitments by the Banks to issue
Letters of Credit for account of such Subsidiary Account Party under the Credit Agreement are hereby terminated.
Pursuant to Section 9.13(b) of the Credit Agreement, the Company
hereby certifies that there is no LC Exposure outstanding with respect to any Letter of Credit outstanding with respect to which [_____]
is the account party.
All obligations of [_______] arising in respect of any period
in which [_______] was, or on account of any action or inaction taken by [_______] as, a Subsidiary Account Party under the Credit Agreement
shall survive the termination effected by this notice.
Terms used herein have the meanings assigned to them in the
Credit Agreement.
JACKSON FINANCIAL INC.
By:__________________________________
Authorized Officer
Schedule I
Commitments
Lender
Commitment
($)
Commitment
(%)
Wells
Fargo Bank, National Association
$125,000,000.00
10%
Bank
of America, N.A.
$125,000,000.00
10%
JPMorgan
Chase Bank, N.A.
$125,000,000.00
10%
The
Toronto-Dominion Bank, New York Branch
$125,000,000.00
10%
BNP
Paribas
$87,500,000.00
7%
The
Bank of New York Mellon
$87,500,000.00
7%
Deutsche
Bank AG New York Branch
$87,500,000.00
7%
Goldman
Sachs Bank USA
$87,500,000.00
7%
Morgan
Stanley Bank, N.A.
$87,500,000.00
7%
PNC
Bank, National Association
$87,500,000.00
7%
Royal
Bank of Canada
$87,500,000.00
7%
Societe
Generale
$87,500,000.00
7%
The
Northern Trust Company
$50,000,000.00
4%
Total
$1,250,000,000.00
100%
Schedule I to Revolving Credit Agreement
Commitments
Schedule II
Material Subsidiaries
and Subsidiary Account Parties
[Omitted]
Schedule II to Revolving Credit Agreement
Material Subsidiaries and Subsidiary Account Parties
Schedule III
Hybrid Instruments
[Omitted]
Schedule III to Revolving Credit Agreement
Hybrid Instruments
Schedule IV
Debt
[Omitted]
Schedule IV to Revolving Credit Agreement
Debt
Schedule V
Liens
[Omitted]
Schedule V to Revolving Credit Agreement
Liens
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The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Local phone number for entity.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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Title of a 12(b) registered security.
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Name of the Exchange on which a security is registered.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Trading symbol of an instrument as listed on an exchange.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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