Form 8-K
8-K — HA Sustainable Infrastructure Capital, Inc.
Accession: 0001104659-26-084887
Filed: 2026-07-20
Period: 2026-07-14
CIK: 0001561894
SIC: 6799 (INVESTORS, NEC)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2620682d1_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2620682d1_ex1-1.htm)
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8-K (Primary)
Filename: tm2620682d1_8k.htm · Sequence: 1
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0001561894
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2026-07-14
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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 14, 2026
HA
SUSTAINABLE INFRASTRUCTURE CAPITAL, INC.
(Exact Name of Registrant as Specified in its
Charter)
Delaware
001-35877
46-1347456
(State
or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS
Employer Identification
No.)
One
Park Place,
Suite
200
Annapolis,
Maryland 21401
(Address of principal executive
offices)
(Zip Code)
Registrant’s telephone
number, including area code: (410) 571-9860
(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 Exchange Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock, $0.01 par value per share
HASI
New
York Stock Exchange
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
Growth Company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01.
Entry Into a Material Definitive Agreement.
On
July 14, 2026, HA Sustainable Infrastructure Capital, Inc. (the “Company”) as borrower, entered into a new $2.250 billion, 5-year unsecured
revolving credit facility pursuant to a CarbonCount®-based
revolving credit agreement (the “New Credit Agreement”) with JPMorgan Chase Bank, N.A. (“JPMorgan”) as administrative
agent, sole bookrunner, sustainability structuring agent and lead arranger, Citibank, N.A., Coöperatieve Rabobank U.A., Credit Agricole
Corporate and Investment Bank, ING Capital LLC, Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, Sumitomo
Mitsui Banking Corporation and Truist Bank as documentation agents, the loan parties from time to time party thereto and the lenders
party thereto. The obligations of the Company under the New Credit Agreement are guaranteed by certain subsidiaries of the Company. The
New Credit Agreement replaces the Company’s prior $1.825 billion unsecured credit facility entered into in April 2024 (the
“Prior Credit Agreement”). Each of the existing 18 relationship bank lenders committed under the New Credit Agreement participated
in the Prior Credit Agreement.
The
following table summarizes certain key changes reflected in the New Credit Agreement as compared to the Prior Credit Agreement.
Term
New
Credit Agreement
Prior
Credit Agreement
Revolving
Commitment
$2,250,000,000
$1,825,000,000
Maturity
July
2031
April
2028
Current
Interest Rate on Drawn Amounts
Current
spread of 157.5 bps + Term SOFR (or the applicable benchmark). The current spread is based on the Company’s current credit
rating adjusted for the applicable CarbonCount®-based sustainability adjustment of 5 bps.
Current
spread of 167.5 bps + Term SOFR (or the applicable benchmark). The current spread is based on the Company’s current credit
rating plus 10 bps adjusted for the applicable CarbonCount®-based sustainability adjustment of 5 bps.
Current
Commitment Fee Rate on Undrawn Amounts
Current
commitment fee of 27 bps based on the Company’s credit
rating adjusted for the applicable CarbonCount®-based sustainability adjustment on undrawn amounts.
Current
commitment fee of 29.5 bps based on the Company’s credit rating adjusted for the applicable CarbonCount®-based sustainability
adjustment on undrawn amounts.
The
New Credit Agreement bears interest at a rate of the Term SOFR Rate (as defined in the New Credit Agreement) or the applicable benchmark
plus an applicable margin ranging from 1.25% to 2.125% based on the Company’s current credit rating, which may be adjusted upward
or downward up to 0.10% to the extent the Company achieves certain CarbonCount® levels. The New Credit Agreement
has a commitment fee on undrawn amounts ranging from 0.20% to 0.45% based on the Company’s current credit rating, which may be
adjusted upward or downward up to 0.01% to the extent the Company achieves certain CarbonCount® levels.
For the current interest rate on drawn amounts and current fee rate on undrawn amounts under the New Credit Agreement, see the table
above.
The
New Credit Agreement contains terms, conditions, covenants, and representations and warranties that are customary and typical for a transaction
of this nature, including various affirmative and negative covenants, and limitations on the incurrence of liens and indebtedness, investments,
fundamental organizational changes, dispositions, changes in the nature of business, transactions with affiliates, use of proceeds, stock
repurchases, and dividends the Company declares. The New Credit Agreement also includes customary events of default and remedies.
A
copy of the New Credit Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K, and the descriptions of
the material terms of the New Credit Agreement in this Item 1.01 are qualified in their entirety by reference to such Exhibit, which
is incorporated herein by reference.
The
above summary of the terms of the Prior Credit Agreement is not a complete description thereof and is qualified in its entirety
by the full text of the Prior Credit Agreement and the amendments thereto, which are filed as Exhibits 1.2, 1.3, 1.4, 1.5, 1.6 and 1.7
to this Current Report on Form 8-K, and are incorporated herein by reference.
- 2 -
Item
1.02. Termination of a Material Definitive Agreement.
On July
14, 2026, in connection with the Company’s entry into the New Credit Agreement described in Item 1.01 above, the Company terminated
the Prior Credit Agreement. The Company had no outstanding loans under the Prior Credit Agreement and all other obligations under the
Prior Credit Agreement have been paid, with the exception of letters of credit issued under the Prior Credit Agreement which are now
issued under the New Credit Agreement.
Item 2.03.
Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information
set forth above under “Item 1.01. Entry into a Material Definitive Agreement” is incorporated herein by reference.
Item 8.01. Other Events.
On
July 14, 2026, the Company as borrower, entered into a new $400 million, 3-year senior unsecured term loan facility pursuant
to a CarbonCount®-based term loan agreement (the “New
Term Loan Agreement”) with JPMorgan as administrative agent, sole bookrunner and sustainability structuring agent, Coöperatieve
Rabobank U.A., New York Branch and JP Morgan as joint lead arrangers, Coöperatieve Rabobank U.A., New York Branch as documentation
agent, the loan parties from time to time party thereto and the lenders party thereto. The obligations of the Company under the New Term
Loan Agreement are guaranteed by certain subsidiaries of the Company. The New Term Loan Agreement replaces the Company’s existing
$250 million unsecured term loan facility entered into in April 2024 (the “Prior Term Loan Agreement”) and the Company’s
existing $250 million delayed draw term loan facility entered into in November 2025 (the “Delayed Draw Term Loan Agreement”),
which were terminated on July 14, 2026.
Principal
amounts under the New Term Loan Agreement will bear interest at a rate of Term SOFR plus applicable margins based on the Company’s
current credit rating, which may be adjusted up to 0.10% to the extent the Company achieves certain CarbonCount® levels.
As of the date of the New Term Loan Agreement, the applicable margin is 1.45%, which represents a 33 basis point reduction compared
to the weighted average spreads of the Company’s Prior Term Loan Agreement and Delayed Draw Term Loan Agreement, based on spreads
at close of 1.925% and 1.65%, respectively.
The New
Term Loan Agreement contains terms, conditions, covenants, and representations and warranties that are customary and typical for a transaction
of this nature, including various affirmative and negative covenants, and limitations on the incurrence of liens and indebtedness, investments,
fundamental organizational changes, dispositions, changes in the nature of business, transactions with affiliates, use of proceeds, stock
repurchases, and dividends the Company declares. The New Term Loan Agreement also includes customary events of default and remedies.
- 3 -
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
1.1
Credit
Agreement, dated as of July 14, 2026, by and among the Company, JPMorgan Chase Bank, N.A. as
administrative agent, sole bookrunner, sustainability structuring agent and lead arranger, Citibank, N.A., Coöperatieve Rabobank
U.A., Credit Agricole Corporate and Investment Bank, ING Capital LLC, Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc., Royal
Bank of Canada, Sumitomo Mitsui Banking Corporation and Truist Bank as documentation agents, the loan parties from time to time party
thereto and each lender from time to time party thereto.
1.2
Credit Agreement, dated
as of April 12, 2024, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A. as administrative
agent, sole bookrunner and sustainability structuring agent and lender, Citibank, N.A., Credit Agricole Corporate and Investment
Bank, Keybank National Association, M&T Bank, Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, Sumitomo
Mitsui Banking Corporation and Truist Securities, Inc. as joint lead arrangers, Bank of America, N.A., Barclays Bank PLC and Goldman
Sachs Bank USA as documentation agents, and each lender from time to time party thereto (incorporated by reference to Exhibit 1.1
to the Company’s Form 8-K (No.001-35877), filed on April 17, 2024).
1.3
Amendment No. 1 to Credit
Agreement, dated as of September 10, 2024, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A.
as administrative agent, sole bookrunner, sustainability structuring agent and lender, Citibank, N.A., Credit Agricole Corporate
and Investment Bank, Keybank National Association, M&T Bank, Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc., Royal Bank
of Canada, Sumitomo Mitsui Banking Corporation and Truist Securities, Inc. as joint lead arrangers and lenders, and Bank of America,
N.A., Barclays Bank PLC and Goldman Sachs Bank USA as documentation agents and lenders (incorporated by reference to Exhibit 1.2
to the Company’s Form 8-K (No.001-35877), filed on September 13, 2024).
1.4
Amendment No. 2 to Credit
Agreement, dated as of October 31, 2024, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A.
as administrative agent and Coöperatieve Rabobank U.A., New York Branch as lender (incorporated by reference to Exhibit 1.3
to the Company’s Form 8-K (No.001-35877), filed on November 1, 2024).
1.5
Amendment No. 3 to Credit
Agreement, dated as of March 28, 2025, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A. as
administrative agent and Bank of Montreal and M&T Bank as lenders (incorporated by reference to Exhibit 1.4 to the Company’s
Form 8-K (No.001-35877), filed on March 31, 2025).
1.6
Amendment No. 4 to Credit
Agreement, dated as of December 9, 2025, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A.
as administrative agent and ING Capital LLC as lender (incorporated by reference to Exhibit 1.5 to the Company’s Form 8-K (No.001-35877),
filed on December 10, 2025).
1.7
Amendment No. 5 to Credit
Agreement, dated as of December 22, 2025, by and among the Company, certain subsidiaries of the Company, JPMorgan Chase Bank, N.A.
as administrative agent and Natixis, New York Branch and The Bank of Nova Scotia as lenders (incorporated by reference to Exhibit
1.6 to the Company’s Form 8-K (No.001-35877), filed on December 29, 2025).
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
- 4 -
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
HA SUSTAINABLE INFRASTRUCTURE CAPITAL, INC.
By:
/s/ Charles W. Melko
Dated: July 20, 2026
Name: Charles W. Melko
Title: Senior Managing Director, Chief Financial Officer and Treasurer
- 5 -
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2620682d1_ex1-1.htm · Sequence: 2
Exhibit 1.1
Execution Version
CREDIT AGREEMENT
CarbonCount®-Based Revolving Credit Facility
dated as of
July 14, 2026
among
HA Sustainable
INFRASTRUCTURE CAPITAL, INC.,
as the Borrower
the other LOAN PARTIES from time to time party
hereto,
the LENDERS party hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Sustainability Structuring
Agent and Sole Bookrunner
JPMORGAN CHASE BANK, N.A., as Lead Arranger
CITIBANK, N.A., COÖPERATIEVE RABOBANK U.A.,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, ING CAPITAL LLC, MIZUHO BANK, LTD., MORGAN STANLEY BANK, N.A., ROYAL BANK OF
CANADA, SUMITOMO MITSUI BANKING CORPORATION and TRUIST BANK,
as Documentation Agents
Table
of Contents
Page
Article 1
Definitions
1
Section 1.01.
Defined Terms
1
Section 1.02.
Classification of Loans and Borrowings
52
Section 1.03.
Terms Generally
52
Section 1.04.
Accounting Terms; GAAP
53
Section 1.05.
Interest Rates; Benchmark Notification
54
Section 1.06.
Exchange Rates; Currency Equivalents
54
Section 1.07.
Status of Obligations
55
Section 1.08.
Letters of Credit
55
Section 1.09.
Divisions
55
Article 2
The Credits
56
Section 2.01.
Revolving Commitments
56
Section 2.02.
Loans and Borrowings
56
Section 2.03.
Borrowing Procedures; Requests for Revolving Borrowings
57
Section 2.04.
[Reserved]
58
Section 2.05.
[Reserved]
58
Section 2.06.
Letters of Credit
58
Section 2.07.
Funding of Borrowings
64
Section 2.08.
Interest Elections
65
Section 2.09.
Termination and Reduction of Commitments; Increase
in Revolving Commitments
67
Section 2.10.
Repayment and Amortization of Loans; Evidence of Debt
68
Section 2.11.
Prepayment of Loans
69
Section 2.12.
Fees
70
Section 2.13.
Interest
71
Section 2.14.
Alternate Rate of Interest
72
Section 2.15.
Increased Costs
76
Section 2.16.
Break Funding Payments
78
Section 2.17.
Withholding of Taxes; Gross-Up
78
Section 2.18.
Payments Generally; Allocation of Proceeds; Sharing
of Setoffs
82
Section 2.19.
Mitigation Obligations; Replacement of Lenders
85
Section 2.20.
Defaulting Lenders
86
Section 2.21.
Returned Payments
88
Section 2.22.
Extension of Maturity Date.
88
Article 3
Representations and Warranties
90
Section 3.01.
Organization; Powers
90
Section 3.02.
Authorization; Enforceability
90
i
Table
of Contents
(continued)
Page
Section 3.03.
Governmental Approvals; No Conflicts
91
Section 3.04.
Financial Condition; No Material Adverse Change
91
Section 3.05.
Properties
91
Section 3.06.
Litigation and Environmental Matters
91
Section 3.07.
Compliance with Laws and Agreements; No Default
92
Section 3.08.
Investment Company Status
92
Section 3.09.
Taxes
92
Section 3.10.
ERISA
92
Section 3.11.
Disclosure
93
Section 3.12.
[Reserved]
93
Section 3.13.
Solvency
93
Section 3.14.
Insurance
93
Section 3.15.
Capitalization and Subsidiaries
93
Section 3.16.
[Reserved]
94
Section 3.17.
[Reserved]
94
Section 3.18.
Margin Regulations
94
Section 3.19.
Use of Proceeds
94
Section 3.20.
No Burdensome Restrictions
94
Section 3.21.
Anti-Corruption Laws and Sanctions and Export Controls
94
Section 3.22.
Affected Financial Institutions
94
Section 3.23.
Outbound Investment Rules
94
Article 4
Conditions
95
Section 4.01.
Effective Date
95
Section 4.02.
Each Credit Event
97
Article 5
Affirmative Covenants
97
Section 5.01.
Financial Statements and Other Information
97
Section 5.02.
Notices of Material Events
100
Section 5.03.
Existence; Conduct of Business
100
Section 5.04.
Payment of Obligations
101
Section 5.05.
Maintenance of Properties
101
Section 5.06.
Books and Records; Inspection Rights
101
Section 5.07.
Compliance with Laws and Material Contractual Obligations
101
Section 5.08.
Use of Proceeds
102
Section 5.09.
Accuracy of Information
102
Section 5.10.
Insurance
102
Section 5.11.
Future Guarantees
102
Article 6
Negative Covenants
103
Section 6.01.
Indebtedness
103
Section 6.02.
Liens
103
ii
Table
of Contents
(continued)
Page
Section 6.03.
Fundamental Changes
109
Section 6.04.
Investments, Loans, Advances, Guarantees and Acquisitions
110
Section 6.05.
Asset Sales
110
Section 6.06.
[Reserved]
111
Section 6.07.
Swap Agreements
111
Section 6.08.
Restricted Payments; Certain Payments of Indebtedness
111
Section 6.09.
Transactions with Affiliates
112
Section 6.10.
Restrictive Agreements
112
Section 6.11.
Amendment of Material Documents
113
Section 6.12.
Tangible Net Worth Ratio
113
Section 6.13.
[Reserved]
113
Section 6.14.
Minimum Tangible Net Worth
113
Section 6.15.
Unencumbered Assets Ratio
113
Section 6.16.
Outbound Investment Rules
113
Article 7
Events of Default
114
Article 8
The Administrative Agent
116
Section 8.01.
Authorization and Action
116
Section 8.02.
Administrative Agent’s Reliance, Limitation of
Liability, Etc.
119
Section 8.03.
Posting of Communications
120
Section 8.04.
The Administrative Agent Individually
122
Section 8.05.
Successor Administrative Agent
122
Section 8.06.
Acknowledgements of Lenders and Issuing Banks
123
Section 8.07.
Certain ERISA Matters
126
Section 8.08.
Sustainability Structuring Agent
127
Section 8.09.
Borrower Communications
128
Article 9
Miscellaneous
129
Section 9.01.
Notices
129
Section 9.02.
Waivers; Amendments
131
Section 9.03.
Expenses; Limitation of Liability; Indemnity; Etc.
133
Section 9.04.
Successors and Assigns
135
Section 9.05.
Survival
139
Section 9.06.
Counterparts; Integration; Effectiveness; Electronic
Execution
139
Section 9.07.
Severability
140
Section 9.08.
Right of Setoff
140
Section 9.09.
Governing Law; Jurisdiction; Consent to Service of
Process
141
Section 9.10.
WAIVER OF JURY TRIAL
142
Section 9.11.
Headings
142
Section 9.12.
Confidentiality
142
Section 9.13.
Several Obligations; Nonreliance; Violation of Law
143
Section 9.14.
USA PATRIOT Act
143
iii
Table
of Contents
(continued)
Page
Section 9.15.
Disclosure
144
Section 9.16.
Material Non-Public Information
144
Section 9.17.
Interest Rate Limitation
144
Section 9.18.
No Fiduciary Duty, etc.
145
Section 9.19.
[Reserved]
146
Section 9.20.
Acknowledgement and Consent to Bail-In of Affected
Financial Institutions
146
Section 9.21.
Acknowledgement Regarding Any Supported QFCs
146
Section 9.22.
[Reserved].
147
Section 9.23.
Sustainability Adjustments
147
Section 9.24.
Judgment Currency
148
Article 10
Loan Guaranty
148
Section 10.01.
Guaranty
148
Section 10.02.
Guaranty of Payment
148
Section 10.03.
No Discharge or Diminishment of Loan Guaranty
149
Section 10.04.
Defenses Waived
149
Section 10.05.
Rights of Subrogation
150
Section 10.06.
Reinstatement; Stay of Acceleration
150
Section 10.07.
Information
150
Section 10.08.
Release of a Loan Guarantor
150
Section 10.09.
Maximum Liability
151
Section 10.10.
Contribution
151
Section 10.11.
Liability Cumulative
152
iv
SCHEDULES:
Schedule 1.01
–
Existing Letters of Credit
Schedule 2.01
–
Commitment Schedule
Schedule 3.06
–
Disclosed Matters
Schedule 3.15
–
Capitalization and Subsidiaries
Schedule 6.01
–
Existing Indebtedness
Schedule 6.02
–
Existing Liens
Schedule 6.04
–
Existing Investments
EXHIBITS:
Exhibit A
Assignment and Assumption
Exhibit B
[Reserved]
Exhibit C
[Reserved]
Exhibit D-1
U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-2
U.S. Tax Compliance Certificate (For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-3
U.S. Tax Compliance Certificate (For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-4
U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit E
Form of Compliance Certificate
Exhibit F
Form of Joinder Agreement
Exhibit G
Form of Solvency Certificate
Exhibit H
Form of Pricing Certificate
v
CREDIT AGREEMENT dated as
of July 14, 2026 (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”),
among HA SUSTAINABLE INFRASTRUCTURE CAPITAL, INC., a Delaware corporation (the “Borrower”), HANNON ARMSTRONG
SUSTAINABLE INFRASTRUCTURE, L.P., a Delaware limited partnership, HANNON ARMSTRONG CAPITAL, LLC, a Maryland limited liability company,
HAT HOLDINGS I LLC, a Maryland limited liability company, HAT HOLDINGS II LLC, a Maryland limited liability company, the other Loan Parties
from time to time party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Sustainability Structuring
Agent.
The parties hereto agree
as follows:
Article 1
Definitions
Section 1.01. Defined
Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”
means, when used in reference to any Loan or Borrowing, whether such Loan, or the Loans comprising such Borrowing, bear interest at a
rate determined by reference to the Alternate Base Rate.
“Adjusted AUD Rate”
means, with respect to any Term Benchmark Borrowing denominated in Australian dollars for any Interest Period, an interest rate per annum
equal to (a) the AUD Screen Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the
Adjusted AUD Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes
of calculating such rate.
“Adjusted Daily
Simple RFR” means, (i) with respect to any RFR Borrowing denominated in Sterling, an interest rate per annum equal to
the Daily Simple RFR for Sterling, (ii) with respect to any RFR Borrowing denominated in U.S. Dollars, an interest rate per annum
equal to the Daily Simple SOFR and (iii) with respect to any RFR Borrowing denominated in Canadian dollars, an interest rate per
annum equal to (a) the Daily Simple RFR for Canadian dollars, plus (b) 0.29547%; provided that if the Adjusted
Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of
this Agreement.
“Adjusted EURIBOR
Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per
annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if
the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes
of this Agreement.
“Adjusted Term CORRA
Rate” means, for purposes of any calculation, the rate per annum equal to (a) Term CORRA for such calculation plus (b) 0.29547%
for a one month interest period or 0.32138% for a three month interest period; provided that if Adjusted Term CORRA Rate as so determined
would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
1
“Adjusted Term SOFR
Rate” means, with respect to any Term Benchmark Borrowing denominated in U.S. Dollars for any Interest Period, an interest
rate per annum equal to the Term SOFR Rate for such Interest Period; provided that if the Adjusted Term SOFR Rate as so
determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative
Agent” means JPMorgan Chase Bank, N.A. (or any of its designated branch offices or affiliates), in its capacity as administrative
agent for the Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent to the Borrower or any
Lender, as the context requires.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the specified Person.
“Agent-Related Person”
has the meaning assigned to it in Section 9.03(d).
“Aggregate Credit
Exposure” means, at any time, the aggregate Credit Exposure of all the Lenders at such time.
“Aggregate Revolving
Exposure” means, at any time, the aggregate Revolving Exposure of all the Lenders at such time.
“Agreed Currencies”
means U.S. Dollars and each Alternative Currency.
“Agreement”
has the meaning assigned to such term in the preamble.
“Agreement Currency”
has the meaning assigned to such term in Section 9.24.
“Alternate Base
Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published
two U.S. Government Securities Business Days prior to 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 1.00%; provided that for the purpose of this definition, the
Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such
day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR
Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted
Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted
Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14
(for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.14(b)), then the Alternate
Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall
be deemed to be 1.00% for purposes of this Agreement.
2
“Alternative Currency”
means Sterling, Euros, Canadian dollars, Australian dollars and any additional currencies determined after the Effective Date by mutual
agreement of the Borrower, Lenders, the Issuing Bank and Administrative Agent; provided that each such currency is a lawful currency
that is readily available, freely transferable and not restricted and able to be converted into U.S. Dollars.
“Ancillary Document”
has the meaning assigned to it in Section 9.06(b).
“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from
time to time concerning or relating to bribery, money laundering or corruption, including, but not limited to, the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder, and the UK Bribery Act of 2010.
“Applicable Assets”
has the meaning set forth in the definition of “Repurchase Agreement.”
“Applicable Margin”
has the meaning set forth in the definition of “Applicable Rate.”
“Applicable Parties”
has the meaning assigned to it in Section 8.03(c).
“Applicable Percentage”
means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment; provided
that, in the case of Section 2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the
percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’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 Lender’s status as a Defaulting Lender at the time of determination.
3
“Applicable Rate”
means, for any day, with respect to any Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable
rate per annum set forth below in the applicable column below under the caption “Applicable Margin” (such rate, the “Applicable
Margin”) or “Commitment Fee Rate” (such rate, the “Commitment Fee Rate”), as the case may be,
based on the corporate ratings of the Borrower (the “Borrower Rating”) assigned by S&P, Moody’s and/or Fitch,
applicable on such date:
Level
Rating
Applicable
Margin
Commitment
Fee Rate
Term
Benchmark
Loans
RFR
Loans
ABR
Loans
I
≥
BBB+ or Baa1 (or equivalent
125.0
bps
125.0
bps
25.0
bps
20.0
bps
II
BBB
or Baa2 (or equivalent)
137.5
bps
137.5
bps
37.5
bps
22.5
bps
III
BBB-
or Baa3 (or equivalent)
162.5
bps
162.5
bps
62.5
bps
27.5
bps
IV
BB+
or Ba1 (or equivalent)
187.5
bps
187.5
bps
87.5
bps
32.5
bps
V
<
BB+ or Ba1 (or equivalent)
212.5
bps
212.5
bps
112.5
bps
45.0
bps
; provided that, (1) subject to Section 9.23,
following the first date on which audited financial statements and a related Pricing Certificate are delivered pursuant to Section 5.01(a) and
Section 5.01(c), on any applicable date of determination, (i) the Applicable Margins set forth above shall each be increased
or decreased (or neither increased nor decreased), as applicable, by the amount set forth in the table below under the column below the
caption “Drawn Pricing Adjustment” set forth opposite the “CarbonCount® level” applicable to the Borrower
on such date (as described in the most recent Pricing Certificate delivered or required to be delivered pursuant to Section 5.01(c))
(any such adjustment, the “Drawn Pricing Adjustment”) and (ii) the Commitment Fee Rates set forth above shall
each be increased or decreased (or neither increased nor decreased), as applicable, by the amount set forth in the table below under
the column below the caption “Undrawn Pricing Adjustment” set forth opposite the “CarbonCount® level” applicable
to the Borrower on such date (as described in the most recent Pricing Certificate delivered or required to be delivered pursuant to Section 5.01(c))
(any such adjustment, the “Undrawn Pricing Adjustment”) and (2) for the avoidance of doubt, in the event that
if after giving effect to (i) the Drawn Pricing Adjustment, the Applicable Margin or the Commitment Fee Rate as so determined would
be less than 0.00%, the Applicable Margin or the Commitment Fee Rate, as applicable, shall be deemed to be 0.00% for all purposes under
this Agreement and (ii) the Undrawn Pricing Adjustment, the Applicable Margin or the Commitment Fee Rate as so determined would
be less than 0.00%, the Applicable Margin or the Commitment Fee Rate, as applicable, shall be deemed to be 0.00% for all purposes under
this Agreement; provided, further, that, for the avoidance of doubt, only one Pricing Certificate may be delivered in respect
of any fiscal year:
4
Sustainability
Pricing Adjustment
Level
CarbonCount®
Level
Drawn
Pricing
Adjustment
Undrawn
Pricing
Adjustment
I
≤
-0.60
+
10.0 bps
+
1.0 bp
II
>
-0.60 but ≤ -0.25
+
5.0 bps
+
0.5 bps
III
≥
+0.25 but < +0.60
-
5.0 bps
-
0.5 bps
IV
≥
+0.60
-
10.0 bps
-
1.0 bp
For purposes of the foregoing,
(i) if only one Rating Agency shall have in effect a Borrower Rating, such Borrower Rating shall apply, (ii) if a Borrower
Rating is in effect from only two Rating Agencies, (x) if the Borrower Rating from both Rating Agencies falls within the same level,
that level will apply and (y) if the Borrower Ratings from the Rating Agencies are split then one level below the higher of the
two Borrower Ratings shall apply, (iii) if a Borrower Rating is in effect from each Rating Agency, (x) if the Borrower Rating
from all Rating Agencies falls within the same level, that level will apply, (y) if the Borrower Ratings from the Rating Agencies
are split such that the Borrower Ratings are at 2 different levels, then the level with two of the three Borrower Ratings shall apply
and (z) if the Borrower Ratings from the Rating Agencies are split such that the Borrower Ratings are at 3 different levels, then
the level of the middle of the three Borrower Ratings shall apply; and (iv) if the Borrower Ratings established or deemed to have
been established by any Rating Agency shall be changed (other than as a result of a change in the rating system of such Rating Agency),
such change shall be effective as of the date that is three (3) Business Days after the date on which such change is first announced
by the applicable Rating Agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative
Agent or otherwise. If the rating system of any Rating Agency changes, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system.
Each change in the Applicable
Rate 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. For purposes of the above, any changes in the Drawn Pricing Adjustment or Undrawn Pricing Adjustment shall
become effective as of the fifth Business Day immediately following the date on which audited financial statements and the related Pricing
Certificate are delivered pursuant to Section 5.01(a) and Section 5.01(c) based upon the CarbonCount®
level set forth in such Pricing Certificate and the calculations of the Drawn Pricing Adjustment and the Undrawn Pricing Adjustment therein.
For the avoidance of doubt, (i) any adjustment to the Applicable Margin or Commitment Fee Rate resulting from a change in the CarbonCount®
level applicable to the Borrower (x) shall not be cumulative year-over-year and (y) shall only apply until the date on which
the next adjustment is due to take place and (ii) if audited financial statements or the related Pricing Certificate have not been
delivered pursuant to Section 5.01(a) or Section 5.01(c), as applicable, for the most recently ended fiscal
year for which such statements and Pricing Certificate were required to be delivered, the Drawn Pricing Adjustment and the Undrawn Pricing
Adjustment set forth under Level I above shall apply until the fifth Business Day immediately following the date on which audited financial
statements and the related Pricing Certificate are delivered pursuant to Section 5.01(a) and Section 5.01(c),
as applicable (it being understood, for the avoidance of doubt, that the failure to deliver a Pricing Certificate with respect to any
fiscal year by the date required by Section 5.01(c) shall not result in a Default or Event of Default and the increase
in the Applicable Margin and the Commitment Fee Rate set forth above shall be the only consequences of such failure to deliver). Notwithstanding
the foregoing, with respect to the period beginning on the Effective Date and ending on the first date on which a Pricing Certificate
is (or is required to be) delivered pursuant to the terms of Section 5.01(c), the Drawn Pricing Adjustment and the Undrawn
Pricing Adjustment set forth under Level III above shall apply.
5
“Approved Borrower
Portal” has the meaning assigned to it in Section 8.09(a).
“Approved Electronic
Platform” has the meaning assigned to it in Section 8.03(a).
“Approved Fund”
has the meaning assigned to the term in Section 9.04(b).
“Arranger”
means (x) JPMorgan Chase Bank, N.A., in its capacity as lead arranger hereunder and (y) JPMorgan Chase Bank, N.A., in its capacity
as sole bookrunner hereunder.
“Assignment and
Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.
“AUD Screen Rate”
means, for any day and time, with respect to any Term Benchmark Borrowing denominated in Australian dollars and for any Interest Period,
the average bid reference rate administered by ASX Benchmarks Pty Limited (ACN 616 075 417) (or any other Person that takes over the
administration of such rate) for Australian Dollar bills of exchange with a tenor equal in length to such Interest Period as displayed
on page BBSY of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute
page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such
rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., Sydney,
Australia time, on the first day of such Interest Period.
“Availability Period”
means the period from and including the Effective Date to but excluding the earlier of the Revolving Credit Maturity Date and the date
of termination of the Revolving Commitments.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor
for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof),
as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining
any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance
of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of
Section 2.14.
6
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates
(other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Bankruptcy Event”
means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary 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,
or has had any order for relief in such proceeding entered in respect thereof, provided that a Bankruptcy Event shall not result
solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority
or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of
courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark”
means, initially, with respect to any (i) RFR Loan, in any Agreed Currency, the applicable Relevant Rate for such Agreed
Currency or (ii) Term Benchmark Loan, the Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition
Event or a Term CORRA Reelection Event, and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant
Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement
to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.
“Benchmark
Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative
Currency (other than any Loan denominated in Canadian dollars), “Benchmark Replacement” shall mean the alternative set forth
in (2) below:
(1) in
the case of any Loan denominated in U.S. Dollars, the Adjusted Daily Simple RFR for U.S. Dollars and/or in the case of any Loan denominated
in Canadian dollars, the Adjusted Daily Simple RFR for Canadian dollars; or
7
(2) the
sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the
then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated
in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment;
provided
that notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term
CORRA Reelection Event, and the delivery of a Term CORRA Notice, on the applicable Benchmark Replacement Date the “Benchmark
Replacement” shall revert to and shall be deemed to be the Adjusted Term CORRA Rate.
If
the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor,
the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for
any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or
method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected
by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such
Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement
Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
syndicated credit facilities denominated in the applicable Agreed Currency at such time.
“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Revolving Loan denominated
in U.S. Dollars, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,”
the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition
of “RFR Business Day”, the definition of “Interest Period,” timing and frequency of determining rates and making
payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the
applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides
in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration
thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that
no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent
decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
8
“Benchmark
Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such
then-current Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof);
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or
the published component used in the calculation thereof) has been, or if such Benchmark is a term rate, all Available Tenors of such
Benchmark (or component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark
(or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference
to the most recent statement or publication referenced in such clause (3) and even if such Benchmark (or component thereof) or,
if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such
date; or
(3) in
the case of a Term CORRA Reelection Event, the date that is thirty (30) days after the date a Term CORRA Notice (if any) is provided
to the Lenders and the Borrower pursuant to Section 2.14(c).
For the avoidance of doubt,
(i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in
respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination
and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with
respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available
Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect
to such then-current Benchmark:
(1) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate,
any Available Tenor of such Benchmark (or such component thereof);
9
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the CORRA Administrator,
the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator
for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),
in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark
(or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof)
permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of
such Benchmark (or such component thereof); or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term
rate, all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer
be, representative.
For the avoidance of doubt,
a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication
of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component
used in the calculation thereof).
“Benchmark Unavailability
Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement
Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced
such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending
at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with Section 2.14.
“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 Plan”
means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title
I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies,
and (c) any Person whose assets include (for purposes of the Plan Asset Regulations 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”.
10
“BHC Act Affiliate”
of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Borrower”
has the meaning assigned to such term in the preamble.
“Borrower Rating”
has the meaning assigned to it in the definition of “Applicable Rate”.
“Borrowing”
means Revolving Borrowings made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a
single Interest Period is in effect.
“Borrowing Request”
means a request by the Borrower for a Revolving Borrowing in accordance with Section 2.03, which shall be substantially in
the form approved by the Administrative Agent and separately provided to the Borrower.
“Burdensome Restrictions”
means any consensual encumbrance or restriction of the type described in Section 6.10.
“Business
Day” means, any day (other than a Saturday or a Sunday) on which banks are open for business in New York City; provided
that, in addition to the foregoing, a Business Day shall be (a) in relation to Loans denominated in Euros and in relation to the
calculation or computation of EURIBOR, any day which is a TARGET Day, (b) in relation to RFR Loans and any interest rate settings,
fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings in the applicable Agreed Currency of such
RFR Loan, any such day that is only a RFR Business Day, (c) in relation to Loans referencing the Adjusted Term SOFR Rate and any
interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or
any other dealings of such Loans referencing the Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business
Day; (d) in relation to Loans denominated in Canadian dollars and in relation to the calculation or computation of CORRA or the
Canadian Prime Rate, any day (other than a Saturday or a Sunday) on which banks are open for business in Toronto, Canada; (e) in
relation to Term Benchmark Loans made in Australian dollars and any interest rate settings, fundings, disbursements, settlements or payments
of any such Term Benchmark Loans, or any other dealings in Australian dollars of such Term Benchmark Loan, any such day on which banks
are open for business in Sydney, Australia and Melbourne, Australia and (f) in relation to Term Benchmark Loans denominated in a
currency other than Dollars, Euro, Sterling, Canadian dollars or Australian dollars and any interest rate settings, fundings, disbursements,
settlements or payments of any such Term Benchmark Loans, or any other dealings in such other currency of such Term Benchmark Loan, any
such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable
offshore interbank market for such currency.
“Canadian Prime
Rate” means, on any day, the rate determined by the Administrative Agent to be the rate equal to the PRIMCAN Index rate that
appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published
by Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agent in
its reasonable discretion); provided, that if any the above rates shall be less than the Floor, such rate shall be deemed to be the Floor
for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index shall be effective from and
including the effective date of such change in the PRIMCAN Index.
11
“Capital Lease Obligations”
of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for
as capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“CBR Loan”
means a Loan that bears interest at a rate determined by reference to the Central Bank Rate, or the Canadian Prime Rate.
“CBR Spread”
means the Applicable Rate, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate”
means, the greater of (I)(A) for any Loan denominated in (a) Sterling, the Bank of England (or any successor thereto)’s
“Bank Rate” as published by the Bank of England (or any successor thereto) from time to time, (b) Euro, one of the following
three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing
operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main
refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any
successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor
thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit
facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor
thereto) from time to time and (c) any other Alternative Currency determined after the Effective Date, a central bank rate as determined
by the Administrative Agent in its reasonable discretion; plus (B) the applicable Central Bank Rate Adjustment and (II) the
Floor.
“Central Bank Rate
Adjustment” means, for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive
or negative value or zero) of (i) the average of the Adjusted EURIBOR Rate for the five most recent Business Days preceding such
day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted EURIBOR Rate
applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business
Day in such period, (b) Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the
average of Adjusted Daily Simple RFR for Sterling Borrowings for the five most recent RFR Business Days preceding such day for which
Adjusted Daily Simple RFR for Sterling Borrowings was available (excluding, from such averaging, the highest and the lowest such Adjusted
Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) the Central Bank Rate in respect of Sterling
in effect on the last RFR Business Day in such period and (c) any other Alternative Currency determined after the Effective Date,
a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For purposes of this definition,
(x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the
EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate, on such day at approximately the time referred to in the definition
of such term for deposits in the applicable Agreed Currency for a maturity of one month.
12
“Change in Control”
means (a) the Borrower becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange
Act, proxy, written notice or otherwise) that any “person” or “group” of related persons (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Effective Date), other than any of the Borrower’s
Subsidiaries, is or has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as
in effect on the Effective Date), directly or indirectly, of Voting Stock of the Borrower representing more than 50% of the combined
voting power of all of the outstanding Voting Stock of the Borrower; or (b) the sale, transfer, conveyance or other disposition
(other than by way of merger, consolidation or other business combination transaction), in one transaction or a series of related transactions,
of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole (other than sales, transfers, conveyances
or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each
case in the ordinary course of business) to any Person (other than the Borrower and/or one or more Subsidiaries of the Borrower).
Notwithstanding the foregoing, (I) a transaction
will not be deemed to be a Change in Control if (1) the Borrower becomes a direct or indirect Wholly Owned Subsidiary of a parent
entity and (2) either (A) the direct or indirect holders of the outstanding Voting Stock of such parent entity immediately
following that transaction are substantially the same as the holders of the outstanding Voting Stock of the Borrower immediately prior
to that transaction or (B) immediately following that transaction no Person (other than a parent entity satisfying the requirements
of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the combined voting power of all of the outstanding
Voting Stock of such parent entity and (II) the reference in clause (b) of the immediately preceding paragraph to sales, transfers,
conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets
in the ordinary course of business shall include, without limitation, any sales, transfers, conveyances or other dispositions of Securitization
Assets, Repurchase Agreement Assets, Investments or other securities or assets (A) that are made (x) to any Securitization
Entity for the purpose of enabling such Securitization Entity to securitize the assets so sold, transferred, conveyed or disposed of
or enabling such Securitization Entity to issue Non-Recourse Indebtedness secured by such assets or to enter into any Repurchase Agreements
with respect to such assets or (y) to any Person pursuant to a Repurchase Agreement that is otherwise permitted (or not prohibited)
by this Agreement, under which such Person is a buyer of Repurchase Agreement Assets, and (B) that the Borrower in good faith determines
to be consistent with past practice of the Borrower or any of its Subsidiaries or to reflect customary or accepted practice in the businesses,
industries or markets in which the Borrower or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable
extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures),
and as a result, none of the foregoing shall constitute a Change in Control.
“Change in Law”
means the occurrence after the date of this Agreement of any of the following: (a) the adoption of 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) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b),
by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request,
guideline, requirement or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date
of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith
or in the implementation thereof, and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the U.S. or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted, issued or implemented.
13
“Charges”
has the meaning assigned to such term in Section 9.17.
“Chase”
means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.
“Class”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans.
“CME Term SOFR Administrator”
means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)
(or a successor administrator).
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment”
means the Revolving Commitment.
“Commitment Fee
Rate” has the meaning set forth in the definition of “Applicable Rate.”
“Commitment Schedule”
means the Schedule attached hereto as Schedule 2.01.
“Commodity Agreement”
means any commodity futures contract, commodity swap, commodity option or other similar agreement or arrangement designed to protect
against fluctuations in the price of commodities or to otherwise manage commodity prices or the risk of fluctuations in commodity prices.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications”
has the meaning assigned to such term in Section 8.03(c).
“Compliance Certificate”
means a certificate of a Financial Officer of the Borrower in substantially the form of Exhibit E.
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
14
“Consolidated Indebtedness”
means Indebtedness of the Borrower and its Subsidiaries on a consolidated basis, excluding the outstanding principal amount of Hybrid
Securities of the Borrower in an amount not to exceed 30% of Consolidated Total Capitalization of the Borrower on the relevant date of
determination (the “Hybrid Security Threshold”) (it being understood that 100% of the amount of Hybrid Securities
in excess of the Hybrid Securities Threshold shall be deemed to constitute Consolidated Indebtedness); provided, that Consolidated
Indebtedness shall exclude any Indebtedness of any Workout Entity.
“Consolidated Net
Worth” means, on any date of determination, the sum of (a) the consolidated stockholders’ equity of the Borrower
and its subsidiaries on such date, determined on a consolidated basis in accordance with GAAP, plus, without duplication and (b) the
outstanding principal amount of Hybrid Securities of the Borrower on such date in an amount not to exceed the Hybrid Security Threshold.
“Consolidated Total
Capitalization” means, on any date of determination, the sum of (a) the aggregate principal amount of all outstanding
Indebtedness of the Borrower and its subsidiaries on a consolidated basis on such date, plus (b) the Consolidated Net Worth of the
Borrower (excluding the outstanding principal amount of any Hybrid Securities included in Consolidated Net Worth pursuant to clause
(b) of the definition thereof) on such date.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“CORRA”
means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“CORRA Administrator”
means the Bank of Canada (or any successor administrator).
“CORRA Determination
Date” has the meaning specified in the definition of “Daily Simple CORRA”.
“CORRA Rate Day”
has the meaning specified in the definition of “Daily Simple CORRA”.
“Corporate Indebtedness”
means Indebtedness that constitutes any obligation of, or any obligation guaranteed by, the Borrower or any Subsidiary for which such
Person is responsible or liable as obligor or otherwise, including principal, premium and interest (whether accruing before or after
filing of any petition in bankruptcy or any similar proceedings by or against the Loan Parties and whether or not allowed as a claim
in bankruptcy or similar proceedings), in respect of (a) indebtedness for money borrowed and (b) indebtedness evidenced by
securities, bonds, debentures, notes or other similar written instruments, in each case, other than any such Indebtedness that is Secured
Indebtedness.
“Corresponding
Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest
payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
15
“Covered Entity”
means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party”
has the meaning assigned to it in Section 9.21.
“Covered Subsidiary”
means the Subsidiaries of the Loan Parties, excluding any Excluded Subsidiary and any Securitization Entity.
“Credit Enhancement
Agreements” means, collectively, any documents, instruments, guarantees or agreements entered into by the Borrower, any of
its Subsidiaries or any Securitization Entity for the purpose of providing credit support (that is reasonably customary as determined
by the Borrower) with respect to any Indebtedness permitted or not prohibited by this Agreement, including, without limitation, any agreements
pursuant to which the Borrower or any of its Subsidiaries agrees to maintain a certain level of investment in a Securitization Entity
for the purposes of complying with any rules or regulations of the SEC or any other applicable laws, rules or regulations relating
to risk-retention requirements in connection with securitization transactions.
“Credit Exposure”
means, as to any Lender at any time, such Lender’s Revolving Exposure at such time.
“Credit Party”
means the Administrative Agent, the Issuing Bank or any other Lender.
“Currency Agreement”
means any foreign exchange contract, currency swap agreement or other agreement or arrangement designed to protect against fluctuations
in currency values or otherwise manage currency exchange rates or currency exchange rate risk.
“Daily Simple CORRA”
means, for any day (a “CORRA Rate Day”), a rate per annum equal to CORRA for the day (such day “CORRA Determination
Date”) that is five (5) RFR Business Days prior to (i) if such CORRA Rate Day is an RFR Business Day, such CORRA
Rate Day or (ii) if such CORRA Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such CORRA Rate Day,
in each case, as such CORRA is published by the CORRA Administrator on the CORRA Administrator’s website. Any change in Daily Simple
CORRA due to a change in CORRA shall be effective from and including the effective date of such change in CORRA without notice to the
Borrower. If by 5:00 p.m. (Toronto time) on any given CORRA Determination Date, CORRA in respect of such CORRA Determination Date
has not been published on the CORRA Administrator’s website and a Benchmark Replacement Date with respect to the Daily Simple CORRA
has not occurred, then CORRA for such CORRA Determination Date will be CORRA as published in respect of the first preceding RFR Business
Day for which such CORRA was published on the CORRA Administrator’s website, so long as such first preceding RFR Business Day is
not more than five (5) Business Days prior to such CORRA Determination Date.
16
“Daily
Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annum equal to, for any RFR
Loan denominated in (i) Sterling, SONIA for the day that is 5 RFR Business Days prior to (A) if such RFR Interest Day is an
RFR Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not an RFR Business Day, the RFR Business Day immediately
preceding such RFR Interest Day, (ii) U.S. Dollars, Daily Simple SOFR (following a Benchmark Transition Event and a Benchmark Replacement
Date with respect to the Term SOFR Rate) and (iii) Canadian dollars, Daily Simple CORRA (following a Benchmark Transition
Event and a Benchmark Replacement Date with respect to Term CORRA).
“Daily Simple SOFR”
means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination
Date”) that is five (5) RFR Business Days prior to (i) if such SOFR Rate Day is an RFR Business Day, such SOFR Rate
Day or (ii) if such SOFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in
each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple
SOFR due to a change in SOFR shall be effective from, and including, the effective date of such change in SOFR without notice to the
Borrower. If by 5:00 p.m. (New York City time) on the second (2nd) RFR Business Day immediately following any SOFR Determination
Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark
Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published
in respect of the first preceding RFR Business Day for which such SOFR was published on the SOFR Administrator’s Website.
“Default”
means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
“Defaulting Lender”
means any Lender that (a) has failed, within two 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 participations in 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 Lender notifies the Administrative
Agent in writing that such failure is the result of such Lender’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 Borrower 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 Lender’s
good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding
a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from
an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations as of
the date of certification) to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of
such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (i) a
Bankruptcy Event or (ii) a Bail-In Action.
17
“Deferred Funding
Obligations” means, at any time, such items of Indebtedness that would be classified as “deferred funding obligations”
on the Borrower’s consolidated balance sheet prepared in accordance with GAAP.
“Disclosed Matters”
means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06.
“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions
and whether effected pursuant to a Division or otherwise) of any property by any Person (including any sale and leaseback transaction
and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Capital
Stock” means, with respect to any Person, any Equity Interest of such Person which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at the option of the holder thereof) or upon the happening of any event:
(1) matures or is mandatorily redeemable in each case for cash or in exchange for Indebtedness (pursuant to a sinking fund obligation
or otherwise); or (2) is redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the holder of such
Equity Interest in whole or in part, in each case on or prior to the earlier of (a) the Revolving Credit Maturity Date or (b) the
date on which there are no Commitments or Obligations under the Loan Documents outstanding; provided, however, that (i) only
the portion of such Equity Interest which so matures or is mandatorily redeemable or is so exchangeable, redeemable or repurchasable
at the option of the holder thereof prior to the earlier of such dates will be deemed to be Disqualified Capital Stock, (ii) [reserved],
(iii) any options, warrants and contracts (including derivative instruments) exercisable or exchangeable for, convertible into or
otherwise for or relating to the purchase or sale of Equity Interest (other than any such Equity Interest that constitutes Disqualified
Capital Stock), and any securities (other than Equity Interest) convertible into or exchangeable for any shares of Equity Interest (other
than any such Equity Interest that otherwise constitutes Disqualified Capital Stock), shall not constitute Disqualified Capital Stock,
(iv) Equity Interest will not be deemed to be Disqualified Capital Stock as a result of provisions in any stock option plan, restricted
stock plan, or other equity incentive plan or any award or agreement issued or entered into thereunder that requires such Person or any
of its Subsidiaries, or gives any current or former employee, director or consultant or their heirs, executors, administrators or assigns
the right to require such Person or any of its Subsidiaries, to purchase, redeem or otherwise acquire or retire for value or otherwise
Equity Interest or any other equity awards (including, without limitation, options, warrants or other rights to purchase or acquire Equity
Interest, restricted stock and restricted stock units) issued or issuable under any such plan, award or agreement; and (v) Equity
Interest will not constitute Disqualified Capital Stock to the extent that such Person or any of its Subsidiaries has the option of paying
for such Equity Interest at maturity, upon mandatory redemption, or upon any redemption, exchange or repurchase at the option of the
holder of such Equity Interest, as the case may be, with Equity Interest (other than Disqualified Capital Stock) of such Person, any
other Person of which such Person is a Subsidiary or any of their respective Subsidiaries. Notwithstanding the foregoing, Equity Interest
sold in forward sales of Equity Interest (other than forward sales of Disqualified Capital Stock) and pursuant to customary agreements
relating to such transactions shall not be deemed Disqualified Capital Stock.
18
“Dividing Person”
has the meaning assigned to it in the definition of “Division.”
“Division”
means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or
more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing
Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”
means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities
and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person
which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence
of such Division.
“Documentation Agents”
means Citibank, N.A., Coöperatieve Rabobank U.A., Credit Agricole Corporate and Investment Bank, ING Capital LLC, Mizuho Bank, Ltd.,
Morgan Stanley Bank, N.A., Royal Bank of Canada, Sumitomo Mitsui Banking Corporation and Truist Bank, each in its capacity as documentation
agent to the Borrower hereunder.
“Dollars”,
“dollars” or “$” refers to lawful money of the U.S.
“Dollar Equivalent”
means, for any amount, at the time of determination thereof, (a) if such amount is expressed in U.S. Dollars, such amount, (b) if
such amount is expressed in an Alternative Currency, the equivalent of such amount in U.S. Dollars determined by using the rate of exchange
for the purchase of U.S. Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative
Agent) by Reuters on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases
to be available or ceases to provide a rate of exchange for the purchase of U.S. Dollars with the Alternative Currency, as provided by
such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the
Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the
equivalent of such amount in U.S. Dollars as determined by the Administrative Agent using any method of determination it deems appropriate
in its sole discretion) and (c) if such amount is denominated in any other currency, the equivalent of such amount in U.S. Dollars
as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion.
“Domestic Subsidiary”
means, with respect to any Person, any Subsidiary of such Person other than a Foreign Subsidiary.
19
“Drawn Pricing Adjustment”
has the meaning assigned to it in the definition of “Applicable Rate”.
“ECP”
means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations
promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its
parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA
Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date”
means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Effective Date
Subsidiary Guarantors” means Hannon Armstrong Sustainable Infrastructure, L.P., HAC Holdings I LLC, HAC Holdings II LLC, Hannon
Armstrong Capital, LLC, HAT I and HAT II.
“Electronic Signature”
means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with
the intent to sign, authenticate or accept such contract or record.
“Electronic System”
means any electronic system, including e-mail, e-fax, web portal access for the Borrower and any other Internet or extranet-based site,
whether such electronic system is owned, operated or hosted by the Administrative Agent or the Issuing Bank and any of its respective
Related Parties or any other Person, providing for access to data protected by passcodes or other security system.
“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way to the (i) environment, (ii) preservation or
reclamation of natural resources, (iii) the management, release or threatened release of any Hazardous Material or (iv) health
and safety matters.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), directly or indirectly resulting from or based upon (a) any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) any exposure to any Hazardous Materials, (d) the
Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
20
“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase
or acquire any of the foregoing, but excluding any debt securities convertible into any of the foregoing.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated
thereunder.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or
(c) of the Code or Section 4001(a)(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the “minimum
funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), with respect to a Plan, whether or
not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the institution
of proceedings by the PBGC for the termination of, or the appointment of a trustee to administer, any Plan under Section 4042 of
ERISA or termination of any Multiemployer Plan under Section 4041A of ERISA; (f) the incurrence by the Borrower or any ERISA
Affiliate of any liability with respect to the complete withdrawal or partial withdrawal of the Borrower or any ERISA Affiliate from
any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the Borrower or any ERISA Affiliate of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, or in endangered or critical status, within
the meaning of Title IV of ERISA.
“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.
“EURIBOR Rate”
means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET
Days prior to the commencement of such Interest Period.
“EURIBOR Screen
Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which
takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication
by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays
that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of
Thomson Reuters as published at approximately 11:00 a.m. Brussels time on the applicable date of determination. If such page or
service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after
consultation with the Borrower.
21
“Euro”
and “€” mean the single currency of the Participating Member States.
“Event of Default”
has the meaning assigned to such term in Article 7.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Excluded Subsidiary”
means any of the following Subsidiaries of the Borrower, whether any such Subsidiary is in existence on the Effective Date or is formed
or acquired or becomes a Subsidiary of the Borrower thereafter: (i) a Subsidiary of the Borrower that is prohibited, in the good
faith judgment of the Borrower, from providing a Guarantee of the Obligations under the Loan Documents or from incurring or having Indebtedness
by any law, rule or regulation, or by any judgment, order, decree, pronouncement, interpretation or other action of any court, government,
or governmental or administrative authority or official or arbitrator having jurisdiction over such Subsidiary or the Borrower, (ii) any
Subsidiary of the Borrower that, in the good faith judgment of the Borrower, is prohibited from providing a Guarantee of the Obligations
under the Loan Documents or from incurring or having Indebtedness by any contractual obligation to which such Subsidiary is a party or
by which it is bound or any organizational document of such Subsidiary, in each case, entered into (or amended) in the ordinary course
of business consistent with past practice of the Borrower or any of its Subsidiaries or to reflect customary or accepted practice in
the businesses, industries or markets in which the Borrower or any of its Subsidiaries operates or reasonably expects to operate or that
reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions
or structures), and not in any event with the primary intent to avoid providing a guarantee, or (iii) any Subsidiary of the Borrower
if its providing a Guarantee of the Obligations under the Loan Documents would require or would be reasonably likely to require, in the
good faith judgment of the Borrower, the Borrower or any Subsidiary of the Borrower to register as an “investment company”
under the Investment Company Act or would cause or would be reasonably likely to cause, in the good faith judgment of the Borrower, the
Borrower or any Subsidiary of the Borrower to become subject to regulation under the Investment Company Act. For purposes of clarity,
it is understood and agreed that a Subsidiary of the Borrower that is not an Excluded Subsidiary may at any time become an Excluded Subsidiary
in accordance with the provisions of the foregoing sentence. Notwithstanding the foregoing, no Subsidiary shall be an Excluded Subsidiary
if it guarantees Indebtedness under (i) any Existing Indenture (solely to the extent any Indebtedness remains outstanding thereunder),
(ii) the Term Loan Credit Agreement or (iii) any other Corporate Indebtedness in an aggregate principal amount in excess of
$2,500,000.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a
Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case
of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable
to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law
in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant
to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except
in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender
immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f),
and (d) any U.S. federal withholding Taxes imposed under FATCA.
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“Existing Credit
Agreement” means that certain Credit Agreement, dated as of April 12, 2024, among the Borrower, the Effective Date Subsidiary
Guarantors, the other Guarantors party thereto from time to time, Chase, as Administrative Agent, and the Lenders party thereto from
time to time, as amended, restated, amended and restated, supplemented or otherwise modified through the date hereof.
“Existing Debt Facilities
Refinancing” shall mean the repayment, redemption and/or discharge in full of all Indebtedness under each of (i) the Existing
Credit Agreement, (ii) the Existing Term Loan Credit Agreement and (iii) the Existing Rabo Credit Agreement, and, in each case,
the termination of all commitments to extend credit thereunder and any guaranties related thereto.
“Existing
Indentures” means, collectively, (i) that certain Indenture, dated as of August 25, 2020, by and among HAT Holdings
I LLC, HAT Holdings II LLC, the guarantors party thereto and U.S. Bank National Association, (ii) that certain Indenture, dated
as of August 11, 2023, by and among HAT Holdings I LLC and HAT Holdings II LLC, the guarantors party thereto and U.S. Bank Trust
Company, National Association, (iii) that certain Indenture, dated as of July 1, 2024, by and among Hannon Armstrong Sustainable
Infrastructure Capital, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, (iv) that certain
Indenture, dated as of June 24, 2025, by and among HA Sustainable Infrastructure Capital, Inc., the guarantors party thereto
and U.S. Bank Trust Company, National Association, and (v) that certain Indenture, dated as of June 24, 2026, by and among
HA Sustainable Infrastructure Capital, Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association.
“Existing Letters
of Credit” means each letter of credit, bank guarantee, bankers’ acceptance and similar document or instrument set forth
on Schedule 1.01.
“Existing Maturity
Date” has the meaning assigned to such term in Section 2.22(a).
“Existing
Rabo Credit Agreement” means that certain Credit Agreement, dated as of November 5, 2025, by and among inter
alios the Borrower, Coöperatieve Rabobank U.A., New York Branch, as administrative agent, and the lenders from time to time
party thereto, as amended, restated, amended and restated, supplemented or otherwise modified through the date hereof.
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“Existing Term Loan
Credit Agreement” means that certain Credit Agreement, dated as of April 12, 2024, among the Borrower, the Effective Date
Subsidiary Guarantors, the other Guarantors party thereto from time to time, Chase, as Administrative Agent, and the Lenders party thereto
from time to time, as amended, restated, amended and restated, supplemented or otherwise modified through the date hereof.
“Export Controls”
means the Arms Export Control Act and the International Traffic in Arms Regulations administered by the Directorate of Defense Trade
Controls of the U.S. Department of State, the Export Control Reform Act of 2018 and Export Administration Regulations administered by
the Bureau of Industry and Security of the U.S. Department of Commerce, and any other U.S. or non-U.S. laws and regulations related to
export controls and applicable to the Borrower.
“Extending Lender”
has the meaning assigned to such term in Section 2.22(b)(ii).
“Extension Request”
means a written request from the Borrower to the Administrative Agent (i) requesting an extension of the Revolving Credit Maturity
Date pursuant to Section 2.22 and (ii) certifying that no Default or Event of Default shall have occurred and be continuing
as of the date of such Extension Request.
“Facility”
means the Revolving Commitments and the extensions of credit made thereunder.
“FATCA”
means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and
any 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.
“FCA”
has the meaning assigned to such term in Section 1.05.
“Federal Funds Effective
Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary
institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate
as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
“Fitch”
means Fitch Ratings Inc.
“Floor”
means 0.00%.
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“Foreign Lender”
means (a) if the Borrower is a U.S. Person, a Lender, with respect to the Borrower, that is not a U.S. Person, and (b) if the
Borrower is not a U.S. Person, a Lender with respect to the Borrower, that is resident or organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes.
“Foreign Subsidiary”
means, with respect to any Person, (a) any Subsidiary of such Person that is not organized or existing under the laws of the United
States, any state thereof or the District of Columbia, and any Subsidiary (including any Subsidiary that would otherwise be a Domestic
Subsidiary) of such Subsidiary, (b) any Subsidiary of such Person that has no material assets (with the determination of materiality
to be made in good faith by the Borrower) other than Equity Interests of (or Equity Interests of and debt obligations owed or treated
as owed by) one or more “Controlled Foreign Corporations” as defined in Section 957 of the Code, and (c) any Subsidiary
(including any Subsidiary that would otherwise be a Domestic Subsidiary) of such Person that owns any Equity Interests of a Foreign Subsidiary
if its providing a Guarantee of the Obligations under the Loan Documents could reasonably be expected, in the good faith judgment of
the Borrower, to cause any earnings of such Foreign Subsidiary, as determined for U.S. federal income tax purposes, to be treated as
a deemed dividend to such Foreign Subsidiary’s United States parent for U.S. federal income tax purposes.
“Funding Account”
means the deposit account of the Borrower to which the Administrative Agent is authorized by the Borrower in writing to transfer proceeds
of any Borrowings requested or authorized by the Borrower pursuant to this Agreement.
“GAAP”
means generally accepted accounting principles in the U.S.
“Governmental Authority”
means the government of the U.S., any other nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union
or the European Central Bank).
“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
“Guarantee Date”
has the meaning assigned to such term in Section 5.11.
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“Guaranteed Obligations”
has the meaning assigned to such term in Section 10.01.
“Guaranteed Parties”
means (a) the Lenders (including, for the avoidance of doubt, the Issuing Banks), (b) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document and (c) the successors and assigns of each of the foregoing.
“HAT I”
means HAT Holdings I LLC, a Maryland limited liability company.
“HAT II”
means HAT Holdings II LLC, a Maryland limited liability company.
“Hazardous Materials”
means: (a) any substance, material, or waste that is included within the definitions of “hazardous substances,” “hazardous
materials,” “hazardous waste,” “toxic substances,” “toxic materials,” “toxic waste,”
or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances by the United States Department
of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency
(or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that
is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, a polychlorinated biphenyl, a per-
or polyfluoroalkyl substance, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural
chemical.
“Hybrid Securities”
means at any time, trust preferred securities, perpetual preferred equity, deferrable interest subordinated debt securities or other
hybrid securities issued by the Borrower that (x) are accorded at least some equity treatment by any two Rating Agencies at the
time of issuance thereof and (y) satisfy each of the Subordination Requirements as of the date of issuance and at all times thereafter.
“Hybrid Security
Threshold” has the meaning assigned to it in the definition of “Consolidated Indebtedness”.
“Impairment Value”
has the meaning assigned to it in the definition of “Indebtedness”.
“Inaccuracy Payment
Date” has the meaning assigned to it in Section 9.23.
“Indebtedness”
of any Person means, without duplication, (a) the principal amount of indebtedness of such Person for borrowed money, (b) the
principal amount of indebtedness of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all Capital
Lease Obligations of such Person, (d) all payment obligations of such Person issued or assumed as the deferred purchase price of
property and all payment obligations of such Person under conditional sale or other title retention agreements relating to assets purchased
by such Person which payment is due more than one year from the date of placing such property in service or taking final delivery and
title thereto (but, in each case, excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business
and any earn-out or similar obligations and also excluding all obligations other than those relating to payment of the purchase price
of the applicable property or assets), (e) the principal component of all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker’s acceptance or similar credit transaction (except in each case to the extent such obligations
relate to trade payables or other accrued liabilities arising in the ordinary course of business), (f) Indebtedness of other Persons
of the types referred to in clauses (a) through (e) above and clauses (h) and (j) below
to the extent (and only to the extent) guaranteed by such referent Person, (g) Indebtedness of any other Person of the type referred
to in clauses (a) through (f) above and (h) and (j) below which is secured by any Lien
on any property or asset of such referent Person, the amount of such Indebtedness of such referent Person being deemed to be the lesser
of the fair market value of such property or asset and the amount of the Indebtedness of such other Person so secured, (h) all net
payment obligations of such Person under Commodity Agreements, Currency Agreements and Interest Rate Agreements of such Person, other
than obligations incurred or agreements entered into for hedging purposes, (i) all outstanding Disqualified Capital Stock issued
by such Person, with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary
or involuntary liquidation preference and, if such Disqualified Capital Stock is subject to repurchase at the option of holder, its maximum
fixed repurchase price (or, if such Disqualified Capital Stock does not have a liquidation preference or a maximum fixed repurchase price,
its estimated repurchase price as determined by the Borrower in good faith), but excluding in each case accrued dividends and premium,
if any (for purposes of this clause (i), “fixed repurchase price” shall mean a price specified as a fixed amount in
U.S. Dollars or other applicable currency) and (j) all repurchase obligations (excluding accrued interest or any portion of such
obligations representing accrued interest) of such Person under Repurchase Agreements to which it is party. For the avoidance of doubt,
on any date of determination, Indebtedness of the Borrower and its Subsidiaries shall not include any unfunded revolving commitment,
undrawn letter of credit, unfunded guarantee or other contingent obligation constituting an Investment for which the Borrower or any
of its Subsidiaries is acting as a lender, issuing lender, guarantor or other credit support provider, as applicable, as part of, or
to provide credit support to, a Portfolio Investment; unless, in each case, (i) such contingent obligation is required to be recorded
as a liability on the consolidated balance sheet of the Borrower prepared in accordance with GAAP and (ii) the funding of any such
contingent obligation would either (x) not result in a new or replacement Portfolio Investment (or increase to an existing Portfolio
Investment) held as an asset of the Borrower or such Subsidiary (it being understood that, in the case of this clause (x) only,
the aggregate amount of such contingent obligation shall be included in Indebtedness) or (y) result in a new or replacement Portfolio
Investment (or increase to an existing Portfolio Investment) held as an asset of the Borrower or such Subsidiary with an expected book
value (as determined on the applicable date of determination in good faith by the Borrower) of less than the amount of such contingent
obligation (with respect to any contingent obligation, the difference between the book value and the aggregate amount of the contingent
obligation, the “Impairment Value”) (provided that, in the case of this clause (y), only an amount equal
to the Impairment Value shall be included in Indebtedness).
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For purposes of determining
the amount of Indebtedness under any covenants, definitions or other provisions of this Agreement, and without prejudice to the last
sentence of the immediately preceding paragraph, (a) guarantees of, and obligations in respect of letters of credit, bankers’
acceptances and other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination
of a particular amount of Indebtedness shall not be included and the incurrence or creation of any such guarantees, obligations or Liens
shall not be deemed to be the incurrence of Indebtedness; (b) the amount of any guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such guarantee is made
which shall not exceed the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good
faith in accordance with GAAP; (c) unless otherwise expressly provided in this Agreement, the amount of Indebtedness issued at a
price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance
with GAAP; and (d) lease obligations established in accordance with ASC 842 “Leases” shall not be deemed indebtedness.
For purposes of clarity, it is understood and agreed that, anything in this Agreement to the contrary notwithstanding, Indebtedness
of non-consolidated subsidiaries (within the meaning of GAAP) shall not be deemed Indebtedness of any Person or any of its Subsidiaries.
For purposes of determining compliance with any U.S. Dollar-denominated restriction (including, without limitation, those set forth in
any definition but excluding, for the avoidance of doubt, for the purposes of determining compliance with the financial covenants set
forth in Section 6.12 and Section 6.15) on the amount or incurrence of any Indebtedness, the U.S. Dollar-equivalent
amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is incurred to Refinance other Indebtedness denominated in a foreign currency, and such Refinancing
would cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in
effect on the date of such Refinancing, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as
the principal amount (or, if incurred with original issue discount, the issue price) of such Refinancing Indebtedness does not exceed
the principal amount (or if incurred with original issue discount, the accreted value) of such Indebtedness being Refinanced plus any
additional Indebtedness incurred to pay interest or dividends thereon plus the amount of any premium (including tender premiums), defeasance
costs and any fees and expenses incurred in connection with the incurrence of such Refinancing Indebtedness; and provided, further,
notwithstanding anything to the contrary set forth in Section 6.01 or elsewhere in this Agreement, the maximum amount of
Indebtedness that the Borrower and its Subsidiaries may incur pursuant to Section 6.01 and such definition shall not be deemed
to be exceeded solely as a result of fluctuations in currency exchange rates. For the avoidance of doubt, for purposes of determining
compliance under Section 6.12 and Section 6.15, any amount in a currency other than U.S. Dollars will be converted
to U.S. Dollars in a manner consistent with that used in calculating such amounts in the Borrower’s financial statements most recently
delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable; provided, however,
that (i) the Borrower shall not be deemed to have breached its obligations under either Section 6.12 or Section 6.15,
solely as a result of fluctuations in currency exchange rates following the date of incurrence of any such Indebtedness and (ii) the
foregoing shall not be deemed to apply to the determination of whether Indebtedness is permitted to be incurred hereunder (which shall
be determined in accordance with the immediately preceding sentence). Subject to the foregoing, the principal amount of any Indebtedness
incurred to Refinance other Indebtedness, if incurred in a different currency from the Indebtedness being Refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness and Indebtedness being Refinanced
are denominated that is in effect on the date of such Refinancing. Unsecured Indebtedness shall not be treated as subordinated or junior
to secured Indebtedness merely because such Indebtedness is unsecured. For purposes of clarity, it is understood and agreed that, anything
in this Agreement to the contrary notwithstanding, the term “Indebtedness” shall not include any commitment to make loans,
advances or other Investments, or to purchase Investments, Persons or other securities or assets or any lease, concession or license
of property (or Guarantee thereof) which would be considered an operating lease under GAAP.
27
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(c).
“Ineligible Institution”
has the meaning assigned to such term in Section 9.04(b).
“Information”
has the meaning assigned to such term in Section 9.12.
“Information Memorandum”
means the Confidential Information Memorandum dated June 2026 relating to the Borrower and the Transactions.
“Intangible Assets”
means the aggregate amount of: (a) all assets classified as intangible assets under GAAP, including, without limitation, goodwill,
trademarks, patents, copyrights, organization expenses, franchises, licenses, trade names, brand names, mailing lists, catalogs, excess
of cost over book value of assets acquired, bond discount and underwriting expenses, nonservicing intangibles (including lease intangibles),
and the residual interest in excess of the greater of (i) $450,000,000 and (ii) 15% of Tangible Net Worth at such time with
respect to off-balance-sheet securitizations where any of the underlying pool of assets lacks federal government support as a source
of repayment (for the avoidance of doubt, only the amount of residual interest in such securitizations that is in excess of the greater
of (i) $450,000,000 and (ii) 15% of Tangible Net Worth at such time shall constitute “Intangible Assets”); and
(b) loans or advances to, investments in, or receivables from, any Person if such loan, advance, investment or receivable is outside
the Borrower’s ordinary course of business.
“Interest Election
Request” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08,
which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrower.
“Interest Payment
Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and
the final maturity date of such Loan, (b) with respect to any RFR Loan, (1) each date that is on the numerically corresponding
day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day
in such month, then the last day of such month) and (2) the final maturity date of such RFR Loan and (c) with respect to any
Term Benchmark Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of
a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, and the final maturity
date of such Term Benchmark Loan.
“Interest Period”
means (x) with respect to any Term Benchmark Borrowing denominated in U.S. Dollars, Euros or Australian dollars, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months
thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment for any Agreed
Currency other than Canadian dollars), as the Borrower may elect and (y) with respect to any Term Benchmark Borrowing denominated
in Canadian dollars, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar
month that is one or three months thereafter (subject to the availability for the Benchmark applicable to the relevant Loan or Commitment
for Canadian dollars), as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest
Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in
the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period
and (iii) no tenor that has been removed from this definition pursuant to Section 2.14(e) shall be available for
specification in such Borrowing Request or Interest Election Request. 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.
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“Interest Rate Agreement”
means any interest rate swap, cap, floor, collar, hedge or similar agreements and any other agreement or arrangement designed to manage
interest rates or interest rate risk.
“Investment”
means any direct or indirect loan, loan origination or other extension of credit (including, without limitation, a guarantee), any capital
contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or
use of others), any Equity Interest, bonds, notes, debentures or other securities or evidences of Indebtedness, any servicing rights,
any real property or interests in real property (including, without limitation, improvements, fixtures and accessions thereto and ground
leases), and any other investment assets (whether tangible or intangible). “Investment” shall exclude extensions of trade
credit in the ordinary course of business, but, unless otherwise expressly stated or the context otherwise requires, shall include acquisitions
of any of the foregoing or of any Person, whether by merger, consolidation, acquisition of Equity Interest or assets or otherwise.
“Investment Company
Act” means the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC promulgated thereunder.
“IRS”
means the United States Internal Revenue Service.
“Issuing Bank”
means, individually and collectively, each of Chase, in its capacity as the issuer of Letters of Credit hereunder, and any other Revolving
Lender from time to time designated by the Borrower as an Issuing Bank, with the consent of such Revolving Lender and the Administrative
Agent, and their respective successors in such capacity as provided in Section 2.06(i). Any Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall
cause such Affiliate to, comply with the requirements of Section 2.06 with respect to such Letters of Credit). At any time
there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each
Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.
29
“Joinder Agreement”
means a Joinder Agreement in substantially the form of Exhibit F.
“Judgment Currency”
has the meaning assigned to such term in Section 9.24.
“LC Collateral Account”
has the meaning assigned to such term in Section 2.06(j).
“LC Disbursement”
means any payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure”
means, at any time, the sum of the Dollar Equivalent of (a) the aggregate undrawn amount of all outstanding Letters of Credit plus
(b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.
“Lender Parent”
means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“Lender-Related
Person” has the meaning assigned to such term in Section 9.03(b).
“Lenders”
means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to
Section 2.09 or an Assignment and Assumption or otherwise, other than any such Person that ceases to be a Lender hereunder
pursuant to an Assignment and Assumption or otherwise. Unless the context otherwise requires, the term “Lenders” includes
the Issuing Bank.
“Letters of Credit”
means the letters of credit issued pursuant to this Agreement and shall include each Existing Letter of Credit and the term “Letter
of Credit” means any one of them or each of them singularly, as the context may require. A Letter of Credit may be issued in Dollars
or in any Alternative Currency. For the avoidance of doubt, and notwithstanding anything to the contrary contained in any Letter of Credit
Agreement, each Letter of Credit shall be unsecured (subject to the cash collateralization requirements set forth in Section 2.06(j)).
“Letter of Credit
Agreement” has the meaning assigned to it in Section 2.06(b).
“Liabilities”
means all claims (including intraparty claims), actions, suits, judgments, damages, losses, liability, obligations, responsibilities,
fines, penalties, sanctions, costs, fees, Taxes, commissions, charges, disbursements and expenses (including those incurred upon any
appeal or in connection with the preparation for and/or response to any subpoena or request for document production relating thereto),
in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of
financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual,
punitive, treble or otherwise.
“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).
“Loan Documents”
means, collectively, this Agreement, each promissory note issued pursuant to this Agreement, each Letter of Credit Agreement, the Loan
Guaranty, each Joinder Agreement and any other document executed by or on behalf of any Loan Party and delivered to the Administrative
Agent in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other Loan Document
to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such
reference becomes operative.
30
“Loan Guarantor”
means each Loan Party (other than the Borrower).
“Loan Guaranty”
means Article 10 of this Agreement.
“Loan Parties”
means, collectively, the Borrower, the Effective Date Subsidiary Guarantors and any other Person who becomes a party to this Agreement
pursuant to a Joinder Agreement and their respective successors and assigns, and the term “Loan Party” shall mean any one
of them or all of them individually, as the context may require.
“Loans”
means the loans and advances made by the Lenders pursuant to this Agreement.
“Margin Stock”
means margin stock within the meaning of Regulations T, U and X, as applicable.
“Material Adverse
Effect” means a material adverse effect on (a) the business, assets, property or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole, (b) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Administrative Agent, the Issuing Banks or the Lenders thereunder or (c) the ability of the Loan Parties taken
as a whole to perform their payment obligations under any Loan Document to which any of the Loan Parties is a party.
“Material Indebtedness”
means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes of determining Material
Indebtedness, the “principal amount of the obligations” of the Borrower or any Subsidiary in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would
be required to pay if such Swap Agreement were terminated at such time.
“Maximum Rate”
has the meaning assigned to such term in Section 9.17.
“Moody’s”
means Moody’s Investors Service, Inc.
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds”
means, with respect to any issuance or sale of Equity Interests or incurrence of Indebtedness, the cash proceeds of such issuance, sale
or incurrence, as the case may be, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’
fees, discounts and commissions and brokerage, consultant and other fees and expenses incurred in connection with such issuance, sale
or incurrence, as the case may be, and net of taxes paid or payable as a result thereof.
31
“Non-Consenting
Lender” has the meaning assigned to such term in Section 9.02(c).
“Non-Extending Lender”
has the meaning assigned to such term in Section 2.22(a).
“Non-Guarantor”
means any Subsidiary of the Borrower that is not a Loan Guarantor.
“Non-Recourse
Indebtedness” means any Indebtedness of the Borrower or any of its Subsidiaries:
(a) that
is advanced to finance the acquisition of Securitization Assets or other assets and secured only by the assets to which such Indebtedness
relates (or by a pledge of equity in the Securitization Entity or Subsidiary of the Borrower owning such assets) without recourse to
the Borrower or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity or that owns no significant assets
(as determined in good faith by the Borrower) other than its interest in a Securitization Entity and, in each case, is a borrower, guarantor,
pledgor or other obligor of such Indebtedness) (other than recourse pursuant to Standard Recourse Undertakings);
(b) that
is advanced to any Subsidiaries or group of Subsidiaries of the Borrower formed for the sole purpose of acquiring or holding Securitization
Assets or other assets (directly or indirectly) against which a loan is obtained that is made without recourse to, and with no cross-collateralization
against, any other assets of the Borrower or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity or
that owns no significant assets (as determined in good faith by the Borrower) other than its interest in a Securitization Entity and,
in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness) (other than recourse pursuant to Standard Recourse
Undertakings);
(c) that
is advanced to finance the acquisition of real property and secured by only the real property (and any accessions, improvements and fixtures
thereto) to which such Indebtedness relates (or by a pledge of equity in the Securitization Entity or Subsidiary of the Borrower owning
such assets) without recourse to the Borrower or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity
or that owns no significant assets (as determined in good faith by the Borrower) other than its interest in a Securitization Entity and,
in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness) (other than recourse pursuant to Standard Recourse
Undertakings);
(d) recourse
for payment is limited to investment assets of a Subsidiary (or group of Subsidiaries) of the Borrower holding exclusively such investment
assets and encumbered by a Lien on such investment assets securing such Indebtedness (which may include a pledge of the Equity Interest
of such Subsidiary or group of Subsidiaries) and/or the general credit of such Subsidiary (or group of Subsidiaries) but for which recourse
shall not extend to the general credit of the Borrower or any other of its Subsidiaries, it being understood that the instruments governing
such Indebtedness may include customary carve-outs to such limited recourse such as, for example, personal recourse to the Borrower or
its Subsidiaries for breach of representations, fraud, misapplication or misappropriation of cash, voluntary or involuntary bankruptcy
filings, violation of loan document prohibitions against transfer of assets or ownership interests therein, tax indemnifications, environmental
liabilities, and liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included in separate
indemnification and/or guaranty agreements in financings of loan assets; or
32
(e) customary
completion or budget guarantees provided to lenders in connection with any of the foregoing clauses (a) through (d) in the
ordinary course of business.
“Non-U.S.
Person” means any Person that is not a U.S. Person.
“NYFRB”
means the Federal Reserve Bank of New York.
“NYFRB Rate”
means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding
Rate in effect on such day(or for any day that is not a Business Day, for the immediately preceding Business Day); provided that
if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal
funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized
standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than 0%,
such rate shall be deemed to be 0% for purposes of this Agreement.
“NYFRB’s Website”
means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligated Party”
has the meaning assigned to such term in Section 10.02.
“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and
liabilities of any of the Loan Parties to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified party, individually
or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans made or reimbursement or other obligations
incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof.
“Original Indebtedness”
has the meaning assigned to such term in Section 6.01(n).
33
“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to, or enforced, any Loan Document), or sold or assigned an interest in any Loan, Letter of Credit, or any Loan Document.
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 2.19).
“Outbound Investment
Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States
Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar applicable law or regulation, and as codified
at 31 C.F.R. § 850.101 et seq.
“Overnight Bank
Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions
denominated in U.S. Dollars by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by
the NYFRB as set forth on the NYFRB’s Website from time to time) and published on the next succeeding Business Day by the NYFRB
as an overnight bank funding rate.
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in U.S. Dollars, the NYFRB Rate and (b) with respect to any
amount denominated in an Alternative Currency, an overnight rate determined by the Administrative Agent or the Issuing Bank, as the case
may be, in accordance with banking industry rules on interbank compensation.
“Paid in Full”
or “Payment in Full” means, (i) the indefeasible payment in full in cash of all outstanding Loans and LC Disbursements,
together with accrued and unpaid interest thereon, (ii) the termination, expiration, or cancellation and return of all outstanding
Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of a cash
deposit, or at the discretion of the Administrative Agent a back-up standby letter of credit satisfactory to the Administrative Agent
and the Issuing Bank, in an amount equal to 102% of the LC Exposure as of the date of such payment), (iii) the indefeasible payment
in full in cash of the accrued and unpaid fees, if any, (iv) the indefeasible payment in full in cash of all reimbursable expenses
and other Guaranteed Obligations (other than Unliquidated Obligations for which no claim has been made and other obligations expressly
stated to survive such payment and termination of this Agreement), together with accrued and unpaid interest thereon, and (v) the
termination of all Commitments.
“Participating Member
State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
34
“Participant”
has the meaning assigned to such term in Section 9.04(c).
“Participant Register”
has the meaning assigned to such term in Section 9.04(c).
“Payment”
has the meaning assigned to it in Section 8.06(c).
“Payment Notice”
has the meaning assigned to it in Section 8.06(c).
“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Periodic Term CORRA
Determination Day” has the meaning assigned to such term in the definition of “Term CORRA”.
“Permitted Encumbrances”
means:
(a) Liens
imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more than thirty (30) days or are being contested in compliance with
Section 5.04;
(c) pledges
and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(e) judgment
Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article 7; and
(f) easements,
rights-of-way and other similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the
ordinary conduct of business of the Borrower or any Subsidiary, and 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 Borrower and its Subsidiaries;
provided
that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clause (e) above.
35
“Permitted Investments”
means:
(a) direct
obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any agency thereof
to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within one year from the date
of acquisition thereof;
(b) investments
in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from any Rating Agency;
(c) investments
in certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the U.S. or any state thereof which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully
collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e) money
market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Plan Assets”
means “plan assets” within the meaning of U.S. Department of Labor regulation at 29 C.F.R. § 2510.3-101 et seq., as
modified by Section 3(42) of ERISA, as amended from time to time.
“Portfolio Investment”
means any Investment held by any Loan Party or any of its Subsidiaries in its asset portfolio in the ordinary course of business.
“Preferred Stock”
of any Person means any Equity Interest of such Person that has preferential rights over any other Equity Interest of such Person with
respect to dividends or redemptions or upon liquidation, dissolution or winding-up.
36
“Pricing Certificate”
shall mean a certificate, in the form of Exhibit H, executed by a Responsible Officer of the Borrower and attaching (a) a
true and correct calculation of the CarbonCount metric for the most recently ended fiscal year (which calculation shall be verified by
the Sustainability Assurance Provider) and setting forth each of the Drawn Pricing Adjustment and the Undrawn Pricing Adjustment for
the period covered thereby and computations in reasonable detail in respect thereof and (b) a review report of the Sustainability
Assurance Provider confirming that the Sustainability Assurance Provider is not aware of any modifications that should be made to such
computations.
“Prime Rate”
means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein,
any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined
by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced
or quoted as being effective.
“Proceeding”
means any claim, litigation, investigation, action, suit, arbitration or administrative, judicial or regulatory action or proceeding
in any jurisdiction.
“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.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“QFC Credit Support”
has the meaning assigned to it in Section 9.21.
“Rating Agency”
means each of S&P, Moody’s and Fitch.
“Recipient”
means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any combination thereof
(as the context requires).
“Reference
Time” means, with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate,
5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if
such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if the RFR
for such Benchmark is SONIA, then four RFR Business Days prior to such setting, (4) if, following a Benchmark Transition Event and
Benchmark Replacement Date with respect to the Term SOFR Rate, the RFR for such Benchmark is Daily Simple SOFR, then four RFR Business
Days prior to such setting, (5) if, following a Benchmark Transition Event and Benchmark Replacement Date with respect to Term CORRA,
the RFR for such Benchmark is Daily Simple CORRA, then four RFR Business Days prior to such setting, (6) if such Benchmark is the
Adjusted Term CORRA Rate, 1:00 p.m. Toronto local time on the day that is two Business Days preceding the date of such setting,
(7) if such Benchmark is the Adjusted AUD Rate, 11:00 a.m. (Sydney, Australia time) two Business Days preceding the
date of such setting or (8) if such Benchmark is none of the Term SOFR Rate, the EURIBOR Rate, SONIA, Daily Simple SOFR, Daily Simple
CORRA, the Adjusted AUD Rate or the Adjusted Term CORRA Rate, the time determined by the Administrative Agent in its reasonable discretion.
37
“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew, replace or refund (including pursuant to any defeasance,
covenant defeasance or satisfaction, discharge or similar mechanism), or to issue a security or incur new Indebtedness in exchange or
replacement for such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have
correlative meanings.
“Refinance Indebtedness”
has the meaning assigned to such term in Section 6.01(n).
“Register”
has the meaning assigned to such term in Section 9.04(b).
“Regulation D”
means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder
or thereof.
“Regulation T”
means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder
or thereof.
“Regulation U”
means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder
or thereof.
“Regulation X”
means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder
or thereof.
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members,
trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates.
“Release”
means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating,
disposing, or dumping into the environment.
“Relevant Governmental
Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in U.S. Dollars, the Federal Reserve
Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case,
any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England,
or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect
to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or
convened by the European Central Bank or, in each case, any successor thereto, (iv) with respect to a Benchmark Replacement in respect
of Loans denominated in Canadian dollars, the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada or,
in each case, any successor thereto, (v) with respect to a Benchmark Replacement in respect of Loans denominated in Australian dollars,
the Reserve Bank of Australia, or a committee officially endorsed or convened by the Reserve Bank of Australia or, in each case, any
successor thereto and (vi) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the
central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible
for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any
working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement
is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement
or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the
Financial Stability Board or any part thereof.
38
“Relevant Rate”
means (i) with respect to any Term Benchmark Borrowing denominated in U.S. Dollars, the Term SOFR Rate, (ii) with respect to
any Term Benchmark Borrowing denominated in Euros, the EURIBOR Rate, (iii) with respect to any Term Benchmark Borrowing denominated
in Canadian dollars, the Term CORRA, (iv) with respect to any Term Benchmark Borrowing denominated in Australian dollars, the Adjusted
AUD Rate or (v) with respect to any RFR Borrowing denominated in Sterling, U.S. Dollars (subject to Section 2.14) or Canadian
dollars (subject to Section 2.14), the applicable Daily Simple RFR, in each case, as applicable.
“Relevant Screen
Rate” means (i) with respect to any Term Benchmark Borrowing denominated in U.S. Dollars, the Term SOFR Reference Rate,
(ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate, (iii) with respect to any
Term Benchmark Borrowing denominated in Australian dollars, the AUD Screen Rate, or (iv) with respect to any Term Benchmark Borrowing
denominated in Canadian dollars, Term CORRA, as applicable.
“Replacement Lender”
has the meaning set forth in Section 2.22(c).
“Repo Buyer"
has the meaning set forth in the definition of “Repurchase Agreement.”
“Repo Seller"
has the meaning set forth in the definition of “Repurchase Agreement.”
“Repurchase Agreement”
means an agreement between the Borrower and/or any of its Subsidiaries, as seller (in any such case, the “Repo Seller”),
and one or more banks, other financial institutions and/or other investors, lenders or other Persons, as buyer (in any such case, the
“Repo Buyer”), and any other parties thereto, under which the Borrower and/or such Subsidiary or Subsidiaries, as
the case may be, are permitted to finance the origination or acquisition of loans, Investments, Equity Interest, other securities,
servicing rights and/or any other tangible or intangible property or assets and interests in any of the foregoing (collectively, “Applicable
Assets”) by means of repurchase transactions pursuant to which the Repo Seller sells, on one or more occasions, Applicable
Assets to the Repo Buyer with an obligation of the Repo Seller to repurchase such Applicable Assets on a date or dates and at a price
or prices specified in or pursuant to such agreement, and which may also provide for payment by the Repo Seller of interest, fees, expenses,
indemnification payments and other amounts, and any other similar agreement, instrument or arrangement, together with any and all existing
and future documents related thereto (including, without limitation, any promissory notes, security agreements, intercreditor agreements,
mortgages, other collateral documents and guarantees), in each case as the same may have been or may be amended, restated, amended and
restated, supplemented, modified, renewed, extended, refunded, refinanced, restructured or replaced in any manner (whether before, upon
or after termination or otherwise) in whole or in part from time to time (including successive amendments, restatements, amendments and
restatements, supplements, modifications, renewals, extensions, refundings, refinancings, restructurings or replacements of any of the
foregoing), and whether or not with the original or other sellers, buyers, guarantors, agents, lenders, banks, financial institutions,
investors or other parties.
39
“Repurchase Agreement
Assets” means any Applicable Assets that are or may be sold by the Borrower or any of its Subsidiaries pursuant to a Repurchase
Agreement.
“Required Lenders”
means, subject to Section 2.20, (a) at any time prior to the earlier of the Loans becoming due and payable pursuant
to Article 7 or the Commitments terminating or expiring, Lenders having Credit Exposure and Unfunded Commitments representing
more than 50% of the sum of the Aggregate Credit Exposure and Unfunded Commitments at such time; provided that, solely for purposes
of declaring the Loans to be due and payable pursuant to Article 7, the Unfunded Commitment of each Lender shall be deemed
to be zero in determining the Required Lenders; and (b) for all purposes after the Loans become due and payable pursuant to Article 7
or the Commitments expire or terminate, Lenders having Credit Exposure representing more than 50% of the Aggregate Credit Exposure at
such time.
“Requirement of
Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and
bylaws or operating, management or partnership agreement, or other organizational or governing documents of such Person and (b) any
statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination
of any arbitrator or court or other Governmental Authority (including Environmental Laws), in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Response Date”
has the meaning assigned to such term in Section 2.22(a).
“Responsible Officer”
means the president, Financial Officer or other executive officer of the Borrower.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or any option,
warrant or other right to acquire any such Equity Interests.
“Revaluation Date”
shall mean (a) with respect to any Loan denominated in any Alternative Currency, each of the following: (i) the date of the
Borrowing of such Loan and (ii) (A) with respect to any Term Benchmark Loan, each date of a conversion into or continuation
of such Loan pursuant to the terms of this Agreement and (B) with respect to any RFR Loan, each date that is on the numerically
corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding
day in such month, then the last day of such month); (b) with respect to any Letter of Credit denominated in an Alternative
Currency, each of the following: (i) the date on which such Letter of Credit is issued, (ii) the first Business Day of each
calendar month and (iii) the date of any amendment of such Letter of Credit that has the effect of increasing the face amount
thereof; and (c) any additional date as the Administrative Agent may determine at any time when an Event of Default exists.
40
“Revolving Borrowing”
means Revolving Loans of the same Type and Agreed Currency, made, converted or continued on the same date and, in the case of Term Benchmark
Loans, as to which a single Interest Period is in effect.
“Revolving Commitment”
means, with respect to each Lender, the amount set forth on the Commitment Schedule opposite such Lender’s name, or in the
Assignment and Assumption or other documentation or record (as such term is defined in Section 9-102(a)(70) of the New York Uniform
Commercial Code) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have assumed its Revolving Commitment,
as applicable, as such Revolving Commitment may be reduced or increased from time to time pursuant to (a) Section 2.09
and (b) assignments by or to such Lender pursuant to Section 9.04; provided, that at no time shall the Revolving
Exposure of any Lender exceed its Revolving Commitment. The initial aggregate amount of the Lenders’ Revolving Commitments is $2,250,000,000.
“Revolving Credit
Maturity Date” means, with respect to any lender, the later of (a) July 14, 2031 and (b) if the maturity date
is extended for such Lender pursuant to Section 2.22, such extended maturity date as determined pursuant to such Section (provided,
however, in each case if such date is not a Business Day, the Revolving Maturity Date shall be the immediately next preceding
Business Day), or any earlier date on which the Revolving Commitment is reduced to zero or otherwise terminated pursuant to the terms
hereof.
“Revolving Exposure”
means, with respect to any Lender, at any time, the sum of the Dollar Equivalent of the aggregate outstanding principal amount of such
Lender’s Revolving Loans and its LC Exposure at such time.
“Revolving Lender”
means, as of any date of determination, a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired,
a Lender with Revolving Exposure.
“Revolving Loan”
means a Loan made pursuant to Section 2.01(a).
“RFR”
means, for any RFR Loan denominated in (a) Sterling, SONIA and (b) U.S. Dollars (solely following a Benchmark Transition Event
and a Benchmark Replacement Date with respect to Term SOFR), Daily Simple SOFR and (c) Canadian dollars (solely following a Benchmark
Transition Event and a Benchmark Replacement Date with respect to Term CORRA), Daily Simple CORRA.
“RFR Borrowing”
means, as to any Borrowing, the RFR Loans comprising such Borrowing. For the avoidance of doubt, RFR Borrowings denominated in U.S. Dollars
or Canadian dollars, in each case, are only available under this Agreement as a result of the application of Section 2.14.
41
“RFR Business Day”
means, for any Loan denominated in (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day
on which banks are closed for general business in London, (b) U.S. Dollars, a U.S. Government Securities Business Day and (c) Canadian
dollars, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which commercial banks in Toronto are authorized
or required by law to remain closed.
“RFR Interest Day”
has the meaning specified in the definition of “Daily Simple RFR”.
“RFR Loan”
means a Loan that bears interest at a rate based on the Adjusted Daily Simple RFR.
“S&P”
means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc.
“Sanctioned Country”
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (as of the Effective Date,
the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea, the non-government controlled
areas of the Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran and North Korea).
“Sanctioned Person”
means, at any time, any Person subject or target of any Sanctions, including (a) any Person listed in any Sanctions-related list
of designated Persons maintained by the U.S. government, including by Office of Foreign Assets Control of the U.S. Department of the
Treasury, the U.S. Department of State, U.S. Department of Commerce, or by the United Nations Security Council, the European Union, any
European Union member state, HM Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating,
organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the
foregoing clauses (a) or (b) (including, without limitation for purposes of defining a Sanctioned Person, as ownership and
control may be defined and/or established in and/or by any applicable laws, rules, regulations, or orders).
“Sanctions”
means all economic or financial sanctions, trade embargoes or similar restrictions imposed, administered or enforced from time to time
by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state,
HM Treasury of the United Kingdom or other relevant sanctions authority.
“SEC”
means the Securities and Exchange Commission of the U.S.
“Secured Indebtedness”
means any Indebtedness of the Borrower or any of its Subsidiaries secured by a Lien upon the property of the Borrower or any of its Subsidiaries.
For purposes of clarity, it is understood and agreed that Indebtedness of the Borrower or any of its Subsidiaries under a Repurchase
Agreement constitutes Secured Indebtedness.
“Securities Act”
means the Securities Act of 1933, as amended.
“Securitization”
means a public or private transfer, sale or financing of servicing advances, mortgage loans, installment contracts, other loans, accounts
receivable, real estate assets, mortgage receivables and any other assets capable of being securitized or having Non-Recourse Indebtedness
issued against (collectively, “Securitization Assets”) by which the Borrower or any of its Subsidiaries directly or
indirectly securitizes a pool of specified Securitization Assets or incurs Non-Recourse Indebtedness secured by specified Securitization
Assets, including any such transaction involving the sale of specified Securitization Assets to a Securitization Entity.
42
“Securitization
Asset” has the meaning set forth in the definition of “Securitization.”
“Securitization
Entity” means (i) any Person established for the purpose of issuing asset-backed or mortgage-backed or mortgage pass-through
securities of any kind (including collateralized mortgage obligations and net interest margin securities) or other similar securities;
(ii) any special-purpose Subsidiary established for the purpose of selling, depositing or contributing Securitization Assets into
a Person described in clause (i) or for the purpose of holding Equity Interests of, or securities issued by, any related Securitization
Entity, regardless of whether such special-purpose Subsidiary is an issuer of securities; provided that such special-purpose Subsidiary
described in this clause (ii) is not an obligor with respect to any Indebtedness of the Borrower or any Loan Guarantor; (iii) any
Person established for the purpose of holding Securitization Assets and issuing Non-Recourse Indebtedness secured by such Securitization
Assets; (iv) any special-purpose Subsidiary formed exclusively for the purpose of satisfying the requirements of Credit Enhancement
Agreements (including without limitation, any Subsidiary that is established for the purpose of owning another Securitization Entity
and pledging the equity of that other Securitization Entity as security for the Indebtedness of such other Securitization Entity) and
regardless of whether such Subsidiary is an issuer of securities, provided that such special-purpose Subsidiary is not an obligor
with respect to any Indebtedness of the Borrower or any Loan Guarantor other than under Credit Enhancement Agreements; and (v) any
other Subsidiary which is established for the purpose of (x) acting as sponsor for and organizing and initiating Securitizations
or (y) facilitating or entering into a Securitization, in each case that engages in activities reasonably related or incidental
thereto and that is not an obligor or guarantor with respect to any Indebtedness of the Borrower. Whether or not a Person is a Securitization
Entity shall be determined in good faith by the Borrower.
“Significant Subsidiary”
means, with respect to any Person, any Subsidiary of such Person that is a “significant subsidiary” of such Person within
the meaning of Rule 1-02(w) of Regulation S-X promulgated by the SEC (as such Rule is in effect on the Effective Date,
but (i) without giving effect to extraordinary, unusual or non-recurring items for the purposes of clause 3 of such rule and
(ii) with respect to any Subsidiary that is not consolidated with the Borrower pursuant to GAAP, based solely on clause 1 and 2
of such rule), with the calculation of whether such Subsidiary is a “significant subsidiary” within the meaning of such Rule to
be made in accordance with GAAP.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the NYFRB (or a successor administrator of the secured overnight financing rate).
43
“SOFR Administrator’s
Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight
financing rate identified as such by the SOFR Administrator from time to time.
“SOFR
Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR
Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvency Certificate”
means a Solvency Certificate in substantially the form of Exhibit G.
“SONIA”
means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published
by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”
means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s
Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for
the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“Specified Call
Date” means, in the case of any Specified Hybrid Security the terms of which require the interest rates (or coupon) applicable
thereto to reset at set intervals during the life of such security, (i) any date on which such interest rate (or coupon) resets
and/or (ii) any other date set forth in the definitive documentation governing the issuance of such Specified Hybrid Security on
which the issuer thereunder may prepay or redeem such Specified Hybrid Security.
“Specified
Hybrid Securities” means, at any time, trust preferred securities, perpetual preferred equity, deferrable interest subordinated
debt securities or other hybrid securities issued by any Loan Party that are accorded at least some equity treatment by at least one
of the Rating Agencies at the time of issuance thereof; provided that such securities (i) do not mature and are not mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise prior to the date that is the later of (x) 91 days following the
Maturity Date or (y) 30 years following the date of issuance thereof (the later of clauses (x) and (y), the “Specified
Outside Date”); (ii) shall not be redeemable or exchangeable prior to the Specified Outside Date except by a Loan Party,
at its option, on any Specified Call Date and (iii) either (x) do not constitute Indebtedness hereunder or (y) constitute
Subordinated Indebtedness hereunder; provided, further that if at any time no Rating Agency accords at least some equity
treatment to any Specified Hybrid Security, the Loan Parties shall be permitted, notwithstanding anything to the contrary contained in
this Agreement or any other Loan Document to the contrary, to repay in full all outstanding principal of, and accrued but unpaid interest
on, such Specified Hybrid Security on any Specified Call Date occurring thereafter with respect to such Specified Hybrid Securities.
“Specified Outside
Date” has the meaning specified in the definition of “Specified Hybrid Securities”.
44
“Specified Secured
Debt” means Secured Indebtedness (other than any such Indebtedness that is both (x) non-recourse and (y) not subject
to a borrowing base).
“Standard Recourse
Undertakings” means, with respect to any Securitization or Indebtedness, (a) such representations, warranties, covenants
and indemnities which are customarily (as determined by the Borrower) made by sellers of financial assets or other Securitization Assets,
including without limitation, Standard Repurchase Obligations, and (b) such customary (as determined by the Borrower) carve-out
matters for which the Borrower or any of its Subsidiaries acts as an indemnitor or guarantor in connection with any such Securitization
or Indebtedness, such as fraud, misappropriation and misapplication of funds, misrepresentation, criminal acts, repurchase obligations
for breach of representations or warranties, environmental indemnities, tax indemnities, insolvency events, non-approved transfers and
similar undertakings which the Borrower determines in good faith to constitute standard undertakings customarily provided by sellers
of financial assets and liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included
in separate indemnification and/or guaranty agreements in financings of loan assets, unless, until and for so long as a claim for payment
or performance has been made thereunder (which has not been satisfied) at which time the obligations with respect to any such customary
carve-out shall not be considered Non-Recourse Indebtedness, to the extent that such claim is a liability of the Borrower for GAAP purposes.
“Standard Repurchase
Obligation” means any obligation of a seller of Securitization Assets or other assets in a Securitization or other Non-Recourse
Indebtedness to repurchase Securitization Assets or such other assets arising as a result of a breach of a representation, warranty or
covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event
relating to the seller.
“Statements”
has the meaning assigned to such term in Section 2.18(f).
“Statutory Reserve
Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted
EURIBOR Rate or Adjusted AUD Rate, as applicable, for eurocurrency funding (currently referred to as “Eurocurrency liabilities”
in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed
in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall include those imposed pursuant
to Regulation D. Term Benchmark Loans for which the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per
the related definition of such Benchmark) shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation
D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.
“Sterling”
or “£” mean the lawful currency of the United Kingdom.
45
“Subordinated Indebtedness”
of a Person means any Indebtedness of such Person, the payment of which is subordinated to payment of the Guaranteed Obligations to the
written satisfaction of the Administrative Agent (acting reasonably).
“Subordination Requirements”
means, with respect to any securities issued by the Borrower, securities (1) the payment of which is subordinated to payment of
the Guaranteed Obligations to the written satisfaction of the Administrative Agent (acting reasonably); (2) that do not mature and
are not mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, prior to the date that is 30 years following the
date of issuance thereof and (3) to the extent the terms of such securities provide for any coupon, interest, distribution or similar
periodic payments thereon, the terms of such securities permit the issuer thereof, at its sole and unrestricted option, to defer the
payment of all such coupon, interest, distribution or similar periodic payments without any limitation on the duration of such deferral
and without such deferral giving rise to an event of default, default, or mandatory redemption obligation under the terms of such securities.
For the avoidance of doubt, the Hybrid Securities of the Borrower outstanding on the Effective Date (and any future Hybrid Securities
issued in substantially the same form as such outstanding Hybrid Securities) satisfy the foregoing requirements.
“subsidiary”
means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent and/or by the parent
and one or more subsidiaries of the parent. For purposes of clarity, it is understood and agreed that, anything in this Agreement to
the contrary notwithstanding, (i) non-consolidated entities (within the meaning of GAAP) shall not be deemed to be subsidiaries
of any Person and (ii) a Workout Entity shall be deemed not to be a subsidiary of the Borrower or any of its subsidiaries for purposes
of this Agreement.
“Subsidiary”
means any direct or indirect subsidiary of the Borrower or a Loan Party, as applicable. Unless otherwise specified, “Subsidiary”
means any subsidiary of the Borrower. For purposes of clarity, it is understood and agreed that, anything in this Agreement to the contrary
notwithstanding, a Workout Entity shall be deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of this
Agreement.
“Supported QFC”
has the meaning assigned to it in Section 9.21.
“Sustainability
Assurance Provider” shall mean a qualified external reviewer (which reviewer shall be reasonably acceptable to the Administrative
Agent), independent of the Borrower and its Subsidiaries, with relevant expertise, such as an auditor, environmental consultant and/or
independent ratings agency of recognized national standing as may be designated by the Borrower; provided, that any such Sustainability
Assurance Provider shall apply auditing standards and/or methodologies that (i) are consistent with then generally accepted industry
standards or (ii) if not so consistent, are proposed by the Borrower and approved by the Required Lenders. The Borrower may designate
a replacement Sustainability Assurance Provider from time to time; provided that any such replacement Sustainability Assurance
Provider (a) shall be (i) a qualified external reviewer, independent of the Borrower and its Subsidiaries, with relevant expertise,
such as an auditor, environmental consultant and/or independent ratings agency of recognized national standing or (ii) another firm
designated by the Borrower and approved by the Required Lenders and (b) shall apply substantially the same auditing standards and
methodology used by the prior Sustainability Assurance Provider, except for any changes to such standards and/or methodology that (i) are
consistent with then generally accepted industry standards or (ii) if not so consistent, are proposed by the Borrower and approved
by the Required Lenders.
46
“Sustainability
Pricing Inaccuracy” has the meaning assigned to it in Section 9.23.
“Sustainability
Recalculation Event” shall mean any acquisition consummated by the Borrower or any of its Subsidiaries, with a transaction
value equal to or greater than 50% of the Borrower’s Tangible Net Worth, prior to giving effect thereto (as evidenced by the most
recent financial statements required to have been delivered by the Borrower pursuant to Section 5.01(a) or Section 5.01(b) hereof)
and that is otherwise permitted hereunder.
“Sustainability
Related Information” shall mean all information about the Loan Parties’ sustainability initiatives or strategy, including,
without limitation, the CarbonCount® Level and any thresholds or targets with respect thereto, which have been or may be provided
to the Administrative Agent, the Sustainability Structuring Agent or any Lender by or on behalf of any Loan Party, or which have been
or may be approved by any Loan Party.
“Sustainability
Structuring Agent” means JPMorgan Chase Bank, N.A., in its capacity as sustainability structuring agent to the Borrower hereunder.
“Swap Agreement”
means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or any option or similar
agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of the Borrower or its Subsidiaries shall be a Swap Agreement.
“T2” means
the real time gross settlement system operated by the Eurosystem, or any successor system.
“Tangible Net Worth”
of the Borrower means, on any date of determination, (a) the consolidated stockholders’ equity of the Borrower and its Subsidiaries
on such date, determined on a consolidated basis in accordance with GAAP, less (b) Intangible Assets on such date, plus, without
duplication, (c) the outstanding principal amount of Hybrid Securities of the Borrower on such date in an amount not to exceed the
Hybrid Security Threshold. For the avoidance of doubt, the calculation of “Tangible Net Worth” shall exclude any amounts
attributable to a Workout Entity; provided, that solely in the event the net asset value of any such Workout Entity is less than
$0, “Tangible Net Worth” shall be deemed to include the net asset value of such Workout Entity.
“TARGET Day”
means any day on which T2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative
Agent to be a suitable replacement) is open for the settlement of payments in Euro.
47
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), value added
taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Adjusted Term SOFR Rate (other than, for the avoidance of doubt, any Loan or Borrowing bearing
interest at a rate determined by reference to the Adjusted Term SOFR Rate pursuant to clause (c) of the definition of Alternate
Base Rate), the Adjusted EURIBOR Rate, the Adjusted AUD Rate or the Adjusted Term CORRA Rate.
“Term CORRA”
means, for any calculation with respect to any Term Benchmark Borrowing denominated in Canadian dollars, the Term CORRA Reference Rate
for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term CORRA Determination Day”)
that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term CORRA Administrator;
provided, however, that if as of 1:00 p.m. (Toronto time) on any Periodic Term CORRA Determination Day the Term CORRA Reference
Rate for the applicable tenor has not been published by the Term CORRA Administrator and a Benchmark Replacement Date with respect to
the Term CORRA Reference Rate has not occurred, then Term CORRA will be the Term CORRA Reference Rate for such tenor as published by
the Term CORRA Administrator on the first preceding Business Day for which such Term CORRA Reference Rate for such tenor was published
by the Term CORRA Administrator so long as such first preceding Business Day is not more than five (5) Business Days prior to such
Periodic Term CORRA Determination Day.
“Term CORRA Administrator”
means Candeal Benchmark Administration Services Inc., TSX Inc., or any successor administrator.
“Term CORRA Notice”
means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term CORRA Reelection Event.
“Term CORRA Reelection
Event” means the determination by the Administrative Agent that (a) Term CORRA has been recommended for use by the Relevant
Governmental Body, (b) the administration of Term CORRA is administratively feasible for the Administrative Agent and (c) a
Benchmark Transition Event, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.14(b) that
is not Term CORRA.
“Term CORRA Reference
Rate” means the forward-looking term rate based on CORRA.
“Term Loan Credit
Agreement” shall mean the Credit Agreement, dated as of the Effective Date, among the Borrower, the Effective Date Subsidiary
Guarantors, each other Loan Party from time to time party thereto, the lenders from time to time party thereto and Chase, as the Administrative
Agent.
“Term Loan Documents”
shall mean the Term Loan Credit Agreement and each other document executed in connection therewith or pursuant thereto.
48
“Term SOFR Determination
Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate”
means, with respect to any Term Benchmark Borrowing denominated in U.S. Dollars and for any tenor comparable to the applicable Interest
Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to
the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference
Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark
Borrowing denominated in U.S. Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by
the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00
pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has
not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred,
then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination
Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which
such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities
Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Total Assets”
means, as of any date of determination with respect to any Person, the total assets of such Person and its subsidiaries as determined
on a consolidated basis in accordance with GAAP.
“Transactions”
means the execution, delivery and performance by the Borrower and the other Loan Parties of this Agreement and the other Loan Documents,
the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted Term SOFR Rate (other than, for the avoidance of doubt, any Loan or Borrowing bearing
interest at a rate determined by reference to the Adjusted Term SOFR Rate pursuant to clause (c) of the definition of Alternate
Base Rate), the Adjusted EURIBOR Rate, the Adjusted AUD Rate, the Adjusted Term CORRA Rate, the Alternate Base Rate or the Adjusted Daily
Simple RFR.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state, the laws of which are
required to be applied in connection with the issue of perfection of security interests.
49
“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.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Undepreciated Real
Estate Assets” means, as of any date, the cost (being the original cost to the Borrower or any of its Subsidiaries plus capital
improvements) of real estate assets of the Borrower and its Subsidiaries on such date, before depreciation and amortization of such real
estate assets, determined on a consolidated basis in accordance with GAAP. For the avoidance of doubt, it is understood and agreed that,
anything in the foregoing sentence to the contrary notwithstanding, the cost of real estate assets shall include any portion of such
cost that may be allocated to intangible assets under GAAP.
“Undrawn Pricing
Adjustment” has the meaning assigned to it in the definition of “Applicable Rate”.
“Unencumbered Assets”
means, as of any date of determination, the sum of (i) Undepreciated Real Estate Assets not securing any portion of Secured Indebtedness
plus (ii) all other assets (but excluding goodwill) of the Borrower and its Subsidiaries not securing (including, for the avoidance
of doubt, pursuant to a lien on the Equity Interests of the Person that owns such assets or of any parent thereof) any portion of Secured
Indebtedness, all as determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP. For the avoidance
of doubt, Unencumbered Assets shall not include any assets attributable to any Workout Entity.
“Unfunded Commitment”
means, with respect to each Lender, the Revolving Commitment of such Lender less its Revolving Exposure.
“Unliquidated Obligations”
means, at any time, any Guaranteed Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including
any Guaranteed Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued
by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation
to provide collateral to secure any of the foregoing types of obligations.
“U.S.”
means the United States of America.
50
“U.S. Government
Obligations” means securities that are (a) direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit
obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government
Obligations evidenced by such depositary receipt.
“U.S. Government
Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the
Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire
day for purposes of trading in United States government securities.
“U.S. Person”
means (i) for purposes of Sections 3.23 and 6.16 hereof, any United States citizen, lawful permanent resident, entity
organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such
entity, or any person in the United States and (ii) for all other purposes, any Person that is a “United States person”
as defined in Section 7701(a)(30) of the Code.
“U.S. Special Resolution
Regime” has the meaning assigned to it in Section 9.21.
“U.S. Tax Compliance
Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“USA PATRIOT Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“Voting Stock”
means, with respect to any Person, all classes and series of Equity Interests of such Person the holders of which are ordinarily, in
the absence of contingencies, entitled to vote in the election of the directors, managers or trustees (or other persons performing similar
functions), as the case may be, of such Person.
“Workout
Entity” means any Person (x) in which (a) the Borrower or any Subsidiary of the Borrower has directly or indirectly
acquired or obtained some or all of the capital stock or other ownership interest of such Person, or otherwise acquired or obtained Control
of such Person, in each case, in connection with the compromise, workout, settlement, collection or exercise of remedies with respect
to any Portfolio Investment, or in connection with the bankruptcy, restructuring, reorganization, repossession, foreclosure or enforcement
of any Lien or similar arrangement with respect to such Portfolio Investment or (b) that has been formed in connection with, or
in anticipation of, acquiring (i) any Person described in the preceding clause (a) or (ii) any property or assets in connection
with the compromise, workout, settlement, collection or exercise of remedies with respect to any Portfolio Investment, or in connection
with the bankruptcy, restructuring, reorganization, repossession, foreclosure or enforcement of any lien or similar arrangement with
respect to such Portfolio Investment and (y) that either (a) has been designated by the Borrower as a Workout Entity pursuant
to the most recent Compliance Certificate delivered pursuant to Section 5.01(d) or (b) solely to the extent such
Person satisfies the condition set forth in the preceding clause (x) as of the Effective Date, is listed on Part B of
Schedule 3.15; provided, that to the extent that the aggregate net asset value of all Workout Entities exceeds an
amount equal to 5% of Total Assets of the Borrower as of any date of determination, then the Borrower shall not be permitted to designate
any additional Person as a Workout Entity until the aggregate net asset value of all Workout Entities is less than 5% of Total Assets
of the Borrower as of such date.
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“Wholly Owned Subsidiary”
of any Person means any Subsidiary of such Person of which all the outstanding Voting Stock of such Subsidiary (other than directors’
qualifying shares and other than an immaterial amount of Voting Stock required to be owned by other Persons pursuant to applicable law
or regulation) is owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
“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. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Loan”) or by Type (e.g., a “Term Benchmark Loan” or an “RFR Loan”) or by Class and Type (e.g.,
a “Term Benchmark Revolving Loan” or an “RFR Revolving Loan”). Borrowings also may be classified and referred
to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing”)
or by Class and Type (e.g., a “Term Benchmark Revolving Borrowing”).
Section 1.03. Terms
Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official
rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply) and all judgments,
orders and decrees of all Governmental Authorities. The word “will” shall be construed to have the same meaning and effect
as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended,
restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications
set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto
as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any
reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions
on assignments set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded
to any or all functions thereof, (d) 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, (e) 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, (f) any reference in any definition to the phrase “at any time” or “for any
period” shall refer to the same time or period for all calculations or determinations within such definition, and (g) the
words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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Section 1.04. Accounting
Terms; GAAP.
(a) Except
as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if after the date hereof there occurs any change in GAAP or in the application thereof
on the operation of any provision hereof and the Borrower notifies the Administrative Agent that the Borrower requests an amendment to
any provision hereof to eliminate the effect of such change in GAAP or in the application thereof (or if the Administrative Agent notifies
the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without
giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or
any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness
or other liabilities of any Loan Party, the Borrower or any Subsidiary at “fair value”, as defined therein and (ii) without
giving effect to any treatment of Indebtedness under Financial Accounting Standards Board Accounting Standards Codification 470-20
or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value
any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the
full stated principal amount thereof.
(b) Notwithstanding
anything to the contrary contained in Section 1.04(a) or in the definition of “Capital Lease Obligations,”
any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards
Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease
(or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been
required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease, and
all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance
therewith.
53
Section 1.05. Interest
Rates; Benchmark Notification. The interest rate on a Loan denominated in U.S. Dollars or an Alternative Currency may be derived
from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the
occurrence of a Benchmark Transition Event or a Term CORRA Reelection Event, Section 2.14(b) provides a mechanism for
determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not
have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used
in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation,
whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce
the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any
existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related
entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor
or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse
to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest
rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms
of this Agreement, and shall have no liability to the Borrower, any Lender 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 calculation of any such rate (or component thereof) provided by any such information
source or service.
Section 1.06. Exchange
Rates; Currency Equivalents. (a) The Administrative Agent or the Issuing Bank, as applicable, shall determine the Dollar Equivalent
amounts of Term Benchmark Borrowings or RFR Borrowings or Letter of Credit extensions denominated in Alternative Currencies. Such Dollar
Equivalent shall become effective as of such Revaluation Date and shall be the Dollar Equivalent of such amounts until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or calculating financial covenants hereunder
or except as otherwise provided herein, the applicable amount of any Agreed Currency (other than U.S. Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the Issuing Bank, as applicable.
(b) Wherever
in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Term Benchmark Loan or an RFR Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in U.S.
Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the Dollar Equivalent
of such amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by
the Administrative Agent or the Issuing Bank, as the case may be.
54
Section 1.07. Status
of Obligations. In the event that the Borrower or any other Loan Party shall at any time issue or have outstanding any Subordinated
Indebtedness, the Borrower shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Guaranteed
Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Administrative
Agent and the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior
indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Guaranteed Obligations are hereby
designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import under
and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further
given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Administrative
Agent and the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior
indebtedness under the terms of such Subordinated Indebtedness.
Section 1.08. Letters
of Credit. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent
of the stated amount of such Letter of Credit available to be drawn at such time; provided that with respect to any Letter of
Credit that, by its terms or the terms of any Letter of Credit Agreement related thereto, provides for one or more automatic increases
in the available amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum amount is available to be drawn at such
time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount
may still be drawn thereunder by reason of the operation of Article 29(a) of the Uniform Customs and Practice for Documentary
Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable
time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamber of Commerce Publication
No. 590 (or such later version thereof as may be in effect at the applicable time) or similar terms of the Letter of Credit itself,
or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be “outstanding”
and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower and each Lender shall
remain in full force and effect until the Issuing Bank and the Lenders shall have no further obligations to make any payments or disbursements
under any circumstances with respect to any Letter of Credit.
Section 1.09. Divisions.
For all purposes under the Loan Documents, in connection with any Division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the
subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at such time.
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Article 2
The Credits
Section 2.01. Revolving
Commitments.
(a) Subject
to the terms and conditions set forth herein, each Lender severally (and not jointly) agrees to make Revolving Loans in U.S. Dollars
or in one or more Alternative Currencies to the Borrower from time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or (ii) the
Aggregate Revolving Exposure exceeding the aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Section 2.02. Loans
and Borrowings.
(a) Each
Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance
with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject
to Section 2.14, each Revolving Borrowing shall be comprised (A) in the case of Borrowings in U.S. Dollars, entirely
of ABR Loans, Term Benchmark Loans or RFR Loans and (B) in the case of Borrowings in any other Agreed Currency, entirely of Term
Benchmark Loans or RFR Loans, as applicable, in each case of the same Agreed Currency, as the Borrower may request in accordance herewith;
provided that RFR Loans denominated in U.S. Dollars or Canadian dollars, in each case, are only available under this Agreement as the
result of the application of Section 2.14.
(c) At
the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of the Dollar Equivalent of $1,000,000 and not less than the Dollar Equivalent of $5,000,000. At the time that each
ABR Borrowing and/or RFR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Dollar
Equivalent of $1,000,000 and not less than the Dollar Equivalent of $5,000,000; provided that a Term Benchmark Borrowing, an ABR
Borrowing or an RFR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or that
is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of
twenty (20) Term Benchmark Borrowings or RFR Borrowings outstanding.
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the Revolving Credit Maturity Date.
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Section 2.03. Borrowing
Procedures; Requests for Revolving Borrowings. To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent
of such request either in writing (delivered by hand, fax or email) by delivering a Borrowing Request signed by a Responsible Officer
of the Borrower or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, (a) (i)(x) in
the case of a Term Benchmark Borrowing denominated in U.S. Dollars, not later than 3:00 p.m., New York City time, two (2) U.S.
Government Securities Business Days before the date of the proposed Borrowing or (y) in the case of an RFR Borrowing denominated
in U.S. Dollars, not later than 11:00 a.m., New York City time, five (5) U.S. Government Securities Business Days before the date
of the proposed Borrowing, (ii) in the case of a Term Benchmark Borrowing denominated in Euros, not later than 12:00 p.m., New York
City time, three (3) Business Days before the date of the proposed Borrowing, (iii) in the case of a Term Benchmark Borrowing
denominated in Canadian dollars, not later than 12:00 p.m., New York City time, three (3) Business Days before the date of
the proposed Borrowing, (iv) in the case of an RFR Borrowing denominated in Sterling, not later than 11:00 a.m., New York City
time, five (5) RFR Business Days before the date of the proposed Borrowing and (v) in the case of a Term Benchmark Borrowing
denominated in Australian dollars, not later than 12:00 p.m., New York City time, four (4) Business Days before the date of
the proposed Borrowing, or (b) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of the
proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be signed by a Responsible Officer of the Borrower; provided
that, if such Borrowing Request is submitted through an Approved Borrower Portal, the foregoing signature requirement may be waived at
the sole discretion of the Administrative Agent. Each such Borrowing Request shall specify the following information in compliance with
Section 2.01:
(i) the
Agreed Currency and aggregate amount of the requested Borrowing, and a breakdown of the separate wires comprising such Borrowing;
(ii) [reserved];
(iii) the
date of such Borrowing, which shall be a Business Day;
(iv) whether
such Borrowing is to be an ABR Borrowing, a Term Benchmark Borrowing or an RFR Borrowing;
(v) in
the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period;” and
(vi) the
Funding Account details.
If no election as to the currency of a Borrowing
is specified, then the requested Revolving Borrowing shall be made in U.S. Dollars. If no election as to the Type of Revolving Borrowing
is specified, then the requested Revolving Borrowing shall be a Term Benchmark Borrowing with an Interest Period of one month’s
duration; provided that if such Borrowing Request (x) specifies the initial Interest Period applicable to the requested
Revolving Borrowing and (y) such specified Interest Period is contemplated by the definition of the term “Interest Period”
then the Interest Period specified in the Borrowing Request shall apply to the requested Revolving Borrowing. If no Interest Period is
specified with respect to any requested Term Benchmark Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested
Borrowing.
57
Notwithstanding
the foregoing, in no event shall the Borrower be permitted to request pursuant to this Section 2.03 a CBR Loan or, prior
to a Benchmark Transition Event and Benchmark Replacement Date with respect to (x) the Term SOFR Rate, an RFR Loan bearing interest
based on Daily Simple SOFR or (y) Term CORRA, an RFR Loan bearing interest based on Daily Simple CORRA (it being understood and
agreed that a Central Bank Rate, the Canadian Prime Rate, Daily Simple SOFR and Daily Simple CORRA shall only apply to the extent provided
in Sections 2.08(e) (solely with respect to the Central Bank Rate and the Canadian Prime Rate), 2.14(a) and
2.14(f)), as applicable.
Section 2.04. [Reserved].
Section 2.05. [Reserved].
Section 2.06. Letters
of Credit.
(a) General.
Subject to the terms and conditions set forth herein, the Borrower may request any Issuing Bank to issue Letters of Credit denominated
in any Agreed Currency as the applicant thereof for the support of the obligations of the Borrower or any Subsidiary thereof, in a form
reasonably acceptable to such Issuing Bank, at any time and from time to time during the Availability Period.
(b) Notice
of Issuance, Amendment, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment or extension
of an outstanding Letter of Credit), the Borrower shall hand deliver, fax or e-mail (or transmit through Electronic System, including
an Approved Borrower Portal, if arrangements for doing so have been approved by the respective Issuing Bank) to an Issuing Bank selected
by it and to the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, or extension, but in any event
no less than three (3) Business Days) a written notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount and currency
of such Letter of Credit, the name and address of the beneficiary thereof, and such other information as shall be necessary to prepare,
amend or extend such Letter of Credit. In addition, as a condition to any such Letter of Credit issuance, the Borrower shall have entered
into a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter
of credit application, in each case, as required by the respective Issuing Bank and using such Issuing Bank’s standard form (each,
a “Letter of Credit Agreement”). In the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement shall control. A Letter of
Credit shall be issued, amended or extended only if (and upon issuance, amendment or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension (i) the aggregate LC
Exposure shall not exceed $200,000,000, (ii) no Revolving Lender’s Revolving Exposure shall exceed its Revolving Commitment,
(iii) the Aggregate Revolving Exposure shall not exceed the aggregate Revolving Commitments and (iv) no more than a total of
20 Letters of Credit shall remain outstanding.
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An Issuing Bank shall not
be under any obligation to issue, amend or extend any Letter of Credit if:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank
from issuing, amending or extending such Letter of Credit, or any Requirement of Law relating to such Issuing Bank or any request or
directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit,
or request that such Issuing Bank refrain from, the issuance, amendment or extension of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose
upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank
in good faith deems material to it, or
(ii) the
issuance, amendment or issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters
of credit generally.
(c) Expiration
Date. Each Letter of Credit shall expire (or be subject to termination or non-renewal by notice from the applicable Issuing Bank
to the beneficiary thereof) 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 (or, in the case of any extension of the expiration date thereof, including, without limitation, any automatic
renewal provision, one year after such extension) and (ii) the date that is five Business Days prior to the Revolving Credit Maturity
Date; provided that the each Issuing Bank may agree, in its sole discretion, to issue (or renew) any Letter of Credit (issued
by such Issuing Bank) that expires after the Revolving Credit Maturity Date subject to cash collateralization arrangements satisfactory
to it; provided further that any such cash collateralization arrangements shall be entered into no later than, and as a condition precedent
to, any such issuance (or renewal) of such Letter of Credit. For the avoidance of doubt, in the event any Issuing Bank agrees to issue
any such Letter of Credit, the Loan Documents shall continue to govern the terms of such Letter of Credit after the termination or expiration
of the Commitments and the repayment of all other Guaranteed Obligations hereunder and thereunder (other than with respect to the obligations
of the Lenders pursuant to clauses (d) and (e) below). For the avoidance of doubt, if the Revolving Credit Maturity Date shall
be extended pursuant to Section 2.22, “Revolving Credit Maturity Date” as referenced in this clause (c) shall
refer to the Revolving Credit Maturity Date as extended pursuant to Section 2.22; provided that, notwithstanding anything
in this Agreement (including Section 2.22 hereof) or any other Loan Document to the contrary, the Revolving Credit Maturity
Date, as such term is used in reference to any Issuing Bank or any Letter of Credit issued thereby, may not be extended without the prior
written consent of such Issuing Bank.
59
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action
on the part of the applicable Issuing Bank or the Revolving Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the respective
Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower
on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason, including after the Maturity Date. Each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Lender acknowledges and agrees that its obligations to acquire participations pursuant to this
paragraph in respect of Letters of Credit and to make payments in respect of such required participations are absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Commitments.
(e) Reimbursement.
If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount in the currency of such LC Disbursement equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower receives notice of such LC Disbursement, if such notice
is received prior to 9:00 a.m., New York time, on the day of receipt, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is received after 9:00 a.m., New York time, on the day of receipt; provided
that (x) if such LC Disbursement is denominated in U.S. Dollars and is not less than $5,000,000, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.03 such payment be financed with an ABR Revolving
Borrowing in an equivalent amount or (y) if such LC Disbursement is denominated in an Alternative Currency and is not less than
the Dollar Equivalent of $5,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 that such payment be converted into an equivalent amount of an ABR Revolving Borrowing denominated in U.S.
Dollars in an amount equal to the Dollar Equivalent of such Alternative Currency, and, in each case, to the extent so financed, the Borrower’s
obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof, and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the
respective Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the respective
Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Lenders and such Issuing Bank, as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph
to reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
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(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section 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 any (i) lack of validity or enforceability of any Letter of Credit, any Letter
of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) 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 by the respective Issuing Bank 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) other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide
a right of setoff against, the Borrower’s obligations hereunder or (v) any adverse change in the relevant exchange rates or
in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally.
Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, or 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 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, any
error in translation or any consequence arising from causes beyond the control of the respective Issuing Bank; provided that the
foregoing shall not be construed to excuse an Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed
to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted
by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment
upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse
to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures. The Issuing Bank for any Letter of Credit shall, within the time allowed by applicable law or the specific terms of the
Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter
of Credit. Such Issuing Bank shall promptly after such examination notify the Administrative Agent and the Borrower by telephone (confirmed
by fax or through Electronic Systems) of such demand for payment if such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse
such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
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(h) Interim
Interest. If the Issuing Bank for any Letter of Credit shall make any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full in the applicable currency on the date such LC Disbursement is made, 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 Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans and such interest shall be due and payable on the
date when such reimbursement is due; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of such Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank for such LC Disbursement shall be for the account
of such Lender to the extent of such payment.
(i) Replacement
and Resignation of an Issuing Bank.
(i) An
Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank.
At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement,
but shall not be required to issue additional Letters of Credit or extend or otherwise amend any existing Letter of Credit.
(ii) Subject
to the appointment and acceptance of a successor Issuing Bank, any Issuing Bank may resign as an Issuing Bank at any time upon thirty
days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such resigning Issuing Bank
shall be replaced in accordance with Section 2.06(i)(i) above.
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(j) Cash
Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the aggregate LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account or accounts with the Administrative Agent, in the name of the Administrative Agent and for the benefit
of the Revolving Lenders (the “LC Collateral Account”), an amount in cash equal to 102% of the amount of the LC Exposure
in the applicable currencies as of such date plus accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article 7. The Borrower also shall deposit cash collateral in accordance with this paragraph as and to the extent
required by Sections 2.11(b) or 2.20. Each such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the Guaranteed Obligations. In addition, and without limiting the foregoing or paragraph (c) of
this Section, if any LC Exposure remains outstanding after the expiration date specified in said paragraph (c), the Borrower shall immediately
deposit in the LC Collateral Account an amount in cash equal to 102% of such LC Exposure as of such date plus any accrued and unpaid
interest thereon, net of any amount in cash collateral that is already on deposit in the LC Collateral Account for such LC Exposure in
accordance with paragraph (c) of this Section. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over the LC Collateral Account and the Borrower hereby grants the Administrative Agent a security interest
in the LC Collateral Account and all moneys or other assets on deposit therein or credited thereto. Other than any interest earned on
the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at
the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing
greater than 50% of the aggregate LC Exposure), be applied to satisfy other Guaranteed Obligations. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three (3) Business Days after all such Events of Defaults have been cured or
waived as confirmed in writing by the Administrative Agent.
(k) Issuing
Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition
to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic
activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued
by such Issuing Bank, including all issuances, extensions and amendments, all expirations and cancelations and all disbursements and
reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends or extends any Letter of Credit, the date
of such issuance, amendment or extension, and the stated amount and currency of the Letters of Credit issued, amended or extended by
it and outstanding after giving effect to such issuance, amendment or extension (and whether the amounts thereof shall have changed),
(iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement,
(iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank
on such day, the date of such failure and the amount and currency of such LC Disbursement, and (v) on any other Business Day, such
other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
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(l) Letters
of Credit Issued for Account of Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any
obligations of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,”
“customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from any
rights of the applicable Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary in respect
of such Letter of Credit, the Borrower (i) shall reimburse, indemnify and compensate the applicable Issuing Bank hereunder for such
Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued solely for the
account of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available to it as a guarantor
or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that
the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business
derives substantial benefits from the businesses of such Subsidiaries.
Section 2.07. Funding
of Borrowings.
(a) Each
Lender shall make each Loan to be made by such Lender hereunder on the proposed date thereof solely by wire transfer of immediately available
funds by 2:00 p.m., New York time, to the account of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders in an amount equal to such Lender’s Applicable Percentage. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the funds so received in the aforesaid account of the Administrative Agent to the applicable
Funding Account; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall
be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower each severally agrees
to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in
the case of such Lender, the greater of the applicable Overnight Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to
ABR Revolving Loans, or in the case of Alternative Currencies, in accordance with such market practice, in each case, as applicable.
If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing; provided, that any interest received from the Borrower by the Administrative Agent during the period beginning when
Administrative Agent funded the Borrowing until such Lender pays such amount shall be solely for the account of the Administrative Agent.
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Section 2.08. Interest
Elections.
(a) Each
Borrowing initially shall be of the Type and Agreed Currency specified in the applicable Borrowing Request and, in the case of a Term
Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect
to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower 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 Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (delivered
by hand, fax or email) by delivering an Interest Election Request signed by a Responsible Officer of the Borrower or through Electronic
System, if arrangements for doing so have been approved by the Administrative Agent, by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower 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 shall be signed by a Responsible Officer
of the Borrower; provided that, if such Interest Election Request is submitted through an Approved Borrower Portal, the foregoing
signature requirement may be waived at the sole discretion of the Administrative Agent.
(c) Each
Interest Election Request (including requests submitted through Electronic System) shall specify the following information in compliance
with Section 2.02:
(i) the
Agreed Currency and principal amount of 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);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing (in the case of Borrowings denominated in U.S. Dollars), a Term Benchmark Borrowing
or an RFR Borrowing; and
(iv) if
the resulting Borrowing is a Term Benchmark 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”.
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If any such Interest Election Request requests
a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration.
Notwithstanding the foregoing, in no event shall
the Borrower be permitted to request pursuant to this Section 2.08(c) a CBR Loan or prior to a Benchmark Transition Event and
Benchmark Replacement Date with respect to (x) the Term SOFR Rate, an RFR Loan bearing interest based on Daily Simple SOFR or (y) Term
CORRA, an RFR Loan bearing interest based on Daily Simple CORRA (it being understood and agreed that a Central Bank Rate, the Canadian
Prime Rate, Daily Simple SOFR and Daily Simple CORRA shall only apply to the extent provided in Sections 2.08(e) (solely with respect
to the Central Bank Rate and the Canadian Prime Rate), 2.14(a) and 2.14(f), as applicable.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the applicable Class of
the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing in Dollars prior to 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 deemed to have an Interest Period of one month’s duration. If the Borrower fails to deliver a timely and
complete Interest Election Request with respect to a Term Benchmark Borrowing in an Alternative Currency prior to the end of the Interest
Period therefor, then, unless such Term Benchmark Borrowing is repaid as provided herein, the Borrower shall be deemed to have selected
that such Term Benchmark Borrowing shall automatically be continued as a Term Benchmark Borrowing in its original Agreed Currency with
an Interest Period of one month’s duration. 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 Lenders, so notifies the Borrower, then, so long as such
Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Term Benchmark Borrowing or an
RFR Borrowing and (ii) unless repaid, (x) (A) each Term Benchmark Borrowing denominated in U.S. Dollars and (B) each
RFR Borrowing (if applicable) denominated in U.S. Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto and (y) each Term Benchmark Borrowing and each RFR Borrowing, in each case denominated in an Alternative Currency shall
bear interest at the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Agreed Currency
plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding
absent manifest error) that the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Agreed
Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Agreed Currency other than U.S. Dollars
shall either be (A) converted to an ABR Borrowing denominated in U.S. Dollars (in an amount equal to the Dollar Equivalent of such
Alternative Currency) at the end of the Interest Period, as applicable, therefor or (B) prepaid at the end of the applicable Interest
Period, as applicable, in full; provided that if no election is made by the Borrower by the earlier of (x) the date that
is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the
applicable Term Benchmark Loan, the Borrower shall be deemed to have elected clause (A) above.
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Section 2.09. Termination
and Reduction of Commitments; Increase in Revolving Commitments.
(a) Unless
previously terminated, the Revolving Commitments shall terminate on the Revolving Credit Maturity Date (subject to Section 2.22).
(b) [Reserved].
(c) The
Borrower may at any time terminate, or from time to time reduce the Revolving Commitments; provided that (i) each reduction
of the Revolving Commitments shall be in an amount that is an integral multiple of the Dollar Equivalent of $1,000,000 and not less than
the Dollar Equivalent of $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving
effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.11, (A) any Lender’s Revolving
Exposure would exceed such Lender’s Revolving Commitment or (B) the Aggregate Revolving Exposure would exceed the aggregate
Revolving Commitments.
(d) The
Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (c) of
this Section by 12:00 noon, New York City time, on the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination
of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent. Each
reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.
(e) The
Borrower shall have the right to increase the Revolving Commitments by obtaining additional Revolving Commitments, either from one or
more of the Lenders or another lending institution, provided that (i) any such request for an increase shall be in a minimum
amount of $10,000,000, (ii) in no event shall the Borrower make more than four (4) such requests in any fiscal year of the
Borrower, (iii) after giving effect thereto, the sum of the total of the additional Commitments after the Effective Date does not
exceed $1,125,000,000, (iv) the Administrative Agent and the Issuing Bank have approved the identity of any such new Lender, such
approvals not to be unreasonably withheld, (v) any such new Lender assumes all of the rights and obligations of a “Lender”
hereunder, and (vi) the procedure described in Section 2.09(f) below have been satisfied. Nothing contained in
this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its
Commitment hereunder at any time.
(f) Any
amendment hereto for such an increase or addition shall be in form and substance satisfactory to the Administrative Agent and shall only
require the written signatures of the Administrative Agent, the Borrower and each Lender being added or increasing its Commitment. As
a condition precedent to such an increase or addition, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party signed by an authorized officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (B) in the case of the Borrower, certifying that, before and after giving effect to
such increase or addition, (1) the representations and warranties contained in Article 3 and the other Loan Documents
are true and correct in all material respects (except that any representation and warranty that is qualified as to materiality or material
adverse effect shall be true and correct in all respects as so qualified), except that any such representations and warranties that specifically
refer to an earlier date shall be true and correct in all material respects (or all respects if qualified by materiality or material
adverse effect) as of such earlier date and (2) no Default or Event of Default exists or would result therefrom.
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(g) On
the effective date of any such increase or addition, (i) any Lender increasing (or, in the case of any newly added Lender, extending)
its Revolving Commitment shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative
Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase
or addition and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving
Loans of all the Lenders to equal its revised Applicable Percentage of such outstanding Revolving Loans, and the Administrative Agent
shall make such other adjustments among the Lenders with respect to the Revolving Loans then outstanding and amounts of principal, interest,
commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent,
in order to effect such reallocation and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving
Loans as of the date of any increase (or addition) in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving
Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements
of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied
by payment of all accrued interest on the amount prepaid and, in respect of each Term Benchmark Loan, shall be subject to indemnification
by the Borrower pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the
related Interest Periods. Within a reasonable time after the effective date of any increase or addition, the Administrative Agent shall,
and is hereby authorized and directed to, revise the Commitment Schedule to reflect such increase or addition and shall distribute such
revised Commitment Schedule to each of the Lenders and the Borrower, whereupon such revised Commitment Schedule shall replace the old
Commitment Schedule and become part of this Agreement.
Section 2.10. Repayment
and Amortization of Loans; Evidence of Debt.
(a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan on the Revolving Credit Maturity Date.
(b) [Reserved].
(c) [Reserved].
(d) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
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(e) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, if any, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(f) The
entries made in the accounts maintained pursuant to paragraphs (d) and (e) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(g) Any
Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall
at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such
form.
Section 2.11. Prepayment
of Loans.
(a) The
Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with paragraph (d) of this Section and, if applicable, payment of any break funding expenses under Section 2.16.
(b) In
the event and on such occasion that the Aggregate Revolving Exposure exceeds the aggregate Revolving Commitments, the Borrower shall
prepay the Revolving Loans, and/or LC Exposure (or, if no such Borrowings are outstanding, deposit cash collateral in the LC Collateral
Account in an aggregate amount equal to such excess, in accordance with Section 2.06(j)).
(c) (i) All
prepayments made pursuant to Section 2.11(a) shall be applied to prepay such Loans in accordance with the Lenders’
respective Applicable Percentages without a corresponding reduction in the Revolving Commitments and to cash collateralize outstanding
LC Exposure
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(d) The
Borrower shall notify the Administrative Agent by telephone (confirmed by fax or e-mail) or through Electronic System, if arrangements
for doing so have been approved by the Administrative Agent, of any prepayment under this Section: (i)(v) in the case of prepayment
of (1) a Term Benchmark Borrowing denominated in U.S. Dollars, not later than 12:00 noon, New York City time, one (1) Business
Day before the date of prepayment or (2) an RFR Revolving Borrowing denominated in U.S. Dollars, not later than 11:00 a.m., New York
City time, five (5) Business Days before the date of prepayment, (w) in the case of a prepayment of a Term Benchmark Borrowing
denominated in Euros or Canadian dollars, not later than 12:00 p.m., New York City time, three (3) Business Days before the date
of prepayment, (x) in the case of prepayment of an RFR Revolving Borrowing denominated in Sterling, not later than 11:00 a.m., New
York City time, five (5) RFR Business Days before the date of prepayment, (y) in the case of prepayment of an RFR Revolving
Borrowing denominated in Canadian dollars, two (2) RFR Business Days before the Date of prepayment, (z) in the case of a prepayment
of a Term Benchmark Borrowing denominated in Australian dollars, not later than 11:00 a.m., New York City time, five (5) Business
Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New York
City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid; provided that if a notice of prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by Section 2.09, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing
shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loan included in the prepaid Borrowings. Prepayments shall be accompanied by (i) accrued interest to the extent required
by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.
Section 2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent a commitment fee for the account of each Revolving Lender, which shall accrue at the
Commitment Fee Rate on the daily amount of the undrawn portion of the Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which the Lenders’ Revolving Commitments terminate; it being understood
that the LC Exposure of a Lender shall be included in the drawn portion of the Revolving Commitment of such Lender for purposes of calculating
the commitment fee. Accrued commitment fees shall be payable in arrears on the fifteenth day following the last day of March, June, September and
December of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after
the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day and the last day of each period but excluding the date on which the Commitments terminate).
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect
to its participations in each outstanding Letter of Credit, which shall accrue on the Dollar Equivalent of the daily maximum stated amount
then available to be drawn under such Letter of Credit at the same Applicable Margin used to determine the interest rate applicable to
Term Benchmark Revolving Loans, during the period from and including the Effective Date to but excluding the later of the date on which
such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
each Issuing Bank for its own account a fronting fee with respect to each Letter of Credit issued by such Issuing Bank, which shall accrue
at the rate of 0.125% per annum on the Dollar Equivalent of the daily maximum stated amount then available to be drawn under such Letter
of Credit, during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments
and the date on which there ceases to be any LC Exposure with respect to Letters of Credit issued by such Issuing Bank, as well as such
Issuing Bank’s standard fees and commissions with respect to the issuance, amendment or extension of any Letter of Credit and other
processing fees, and other standard costs and charges, of such Issuing Bank relating to Letters of Credit as from time to time in effect.
Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each
year shall be payable on the on the fifteenth day following such last day, 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 Revolving Commitments terminate and any such fees
accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing
Bank pursuant to this paragraph shall be payable within ten (10) days after written demand therefor. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
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(c) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) [reserved].
(e) All
fees payable hereunder shall be paid on the dates due, in U.S. Dollars in immediately available funds, to the Administrative Agent (or
to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any circumstances
Section 2.13. Interest.
(a) The
Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The
Loans comprising each Term Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted
Term CORRA Rate or the Adjusted AUD Rate, as applicable, for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c) Each
RFR Loan shall bear interest at a rate per annum equal to the Adjusted Daily Simple RFR plus the Applicable Margin.
(d) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment,
at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loans
as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount outstanding hereunder, such
amount shall accrue at 2% plus the rate applicable to ABR Loans hereunder.
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(e) Accrued
interest on each Loan (for ABR Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitment; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment
of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of
any Term Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) Interest
computed by reference to (x) the Term SOFR Rate or Daily Simple SOFR, the EURIBOR Rate, and the Alternate Base Rate (except when
based on the Prime Rate) hereunder shall be computed on the basis of a year of 360 days and (y) the Daily Simple RFR with respect
to Sterling, Term CORRA, the Canadian Prime Rate (if applicable), the Adjusted AUD Rate or the Prime Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year, except that interest computed by reference to the Daily Simple RFR with respect to
Sterling shall in all cases be computed on the basis of a year of 365 days), or, in the case of interest in respect of Loans denominated
in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. In each case,
interest shall be payable for the actual number of days elapsed (including the first day but excluding the last day). All interest hereunder
on any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan as of the applicable date of
determination. A determination of the applicable Alternate Base Rate, Adjusted Term SOFR Rate, Term SOFR Rate, Adjusted EURIBOR Rate,
EURIBOR Rate, Adjusted Term CORRA Rate, the Term CORRA, Adjusted AUD Rate, the AUD Rate, Adjusted Daily Simple RFR or Daily Simple RFR
shall be made by the Administrative Agent, and such determination shall be conclusive absent manifest error.
Section 2.14. Alternate
Rate of Interest. (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.14,
if:
(i) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of
any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term
SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted Term CORRA Rate or the Adjusted AUD Rate (including because the Relevant Screen Rate
is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period or (B) at any time
that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR for the applicable Agreed Currency;
or
(ii) the
Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark
Borrowing, the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted Term CORRA Rate or the Adjusted AUD Rate for the applicable
Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for the applicable Agreed Currency and such Interest Period or (B) at any time, the applicable
Adjusted Daily Simple RFR for the applicable Agreed Currency will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their Loans included in such Borrowing for the applicable Agreed Currency;
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then the Administrative Agent shall give notice
thereof to the Borrower and the Lenders by telephone, telecopy or through Electronic System as provided in Section 9.01 as
promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election
Request in accordance with the terms of Section 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03,
(A) for loans denominated in U.S. Dollars, (1) any Interest Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Term Benchmark Borrowing, and any Borrowing Request that requests a Term Benchmark Borrowing,
shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing denominated
in U.S. Dollars so long as Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above
or (y) an ABR Borrowing if the Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above
and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for
an ABR Borrowing and (B) for Loans denominated in an Alternative Currency, any Interest Election Request that requests the conversion
of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that
requests a Term Benchmark Borrowing or an RFR Borrowing, in each case, for the relevant Benchmark, shall be ineffective; provided
that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall
be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Borrower’s
receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to a Relevant Rate
applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers
a new Interest Election Request in accordance with the terms of Section 2.08 or a new Borrowing Request in accordance with
the terms of Section 2.03, (A) for Loans denominated in U.S. Dollars, (1) any Term Benchmark Loan shall on the
last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted
by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in U.S. Dollars so long as the Daily Simple
SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Daily Simple
SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall
on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan and (B) for Loans denominated
in an Alternative Currency, (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Loan bear
interest at the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Alternative Currency
plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding
absent manifest error) that the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Alternative
Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Borrower’s
election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest
rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed to be a
Term Benchmark Loan denominated in U.S. Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans
denominated in U.S. Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate (or in the case of Canadian
dollars, the Canadian Prime Rate) for the applicable Alternative Currency plus the CBR Spread; provided that, if the Administrative
Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate (or in the case
of Canadian dollars, the Canadian Prime Rate) for the applicable Alternative Currency cannot be determined, any outstanding affected
RFR Loans denominated in any Alternative Currency, at the Borrower’s election, shall either (A) be converted into ABR Loans
denominated in U.S. Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or (B) be prepaid
in full immediately.
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(b) Notwithstanding
anything to the contrary herein or in any other Loan Document (and, for the avoidance of doubt, no Swap Agreement shall be deemed a “Loan
Document” for purposes of this Section 2.14), if a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” with respect to
U.S. Dollars and/or Canadian dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark (including
any related adjustments) for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark
settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and
(y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement”
with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark (including
any related adjustments) for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00
p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the
Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long
as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising
the Required Lenders.
(c) Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative Agent will have the right to make Benchmark
Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document,
any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent
of any other party to this Agreement or any other Loan Document. Notwithstanding anything to the contrary herein or in any other Loan
Document and subject to the proviso below in this paragraph, with respect to a Loan denominated in Canadian dollars, if a Term CORRA
Reelection Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the
then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder
or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further
action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c)(ii) shall
not be effective unless the Administrative Agent has delivered to the Lenders a Term CORRA Notice. For the avoidance of doubt, the Administrative
Agent shall not be required to deliver a Term CORRA Notice after the occurrence of a Term CORRA Reelection Event and may do so in its
sole discretion.
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(d) The
Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the
implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the
removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of
any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable,
any Lender (or group of Lenders) pursuant to this Section 2.14, including any determination with respect to a tenor,
rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from
taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion
and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant
to this Section 2.14.
(e) Notwithstanding
anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate, EURIBOR Rate, Term CORRA or the AUD
Screen Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes
such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor
for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such
Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period”
for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that
was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark
(including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative
for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period”
for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(f) Upon
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request
for (i) a Term Benchmark Borrowing, conversion to or continuation of Term Benchmark Loans to be made, converted or continued or
(ii) a RFR Borrowing or conversion to RFR Loans, during any Benchmark Unavailability Period and, failing that, either (x) the
Borrower will be deemed to have converted any request for (1) a Term Benchmark Borrowing or RFR Borrowing, as applicable, denominated
in U.S. Dollars into a request for a Borrowing of or conversion to (A) solely with respect to any such request for a Term Benchmark
Borrowing, an RFR Borrowing denominated in U.S. Dollars so long as the Adjusted Daily Simple RFR for U.S. Dollar Borrowings is not the
subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple RFR for Dollar Borrowings is the subject
of a Benchmark Transition Event or (y) any request relating to a Term Benchmark Borrowing or RFR Borrowing denominated in an Alternative
Currency shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark
is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable,
will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding
on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant
Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement for such Agreed Currency is
implemented pursuant to this Section 2.14, (A) for Loans denominated in U.S. Dollars (1) any Term Benchmark Loan shall
on the last day of the Interest Period applicable to such Loan be converted by the Administrative Agent to, and shall constitute, (x) an
RFR Borrowing denominated in U.S. Dollars so long as the Adjusted Daily Simple RFR for U.S. Dollar Borrowings is not the subject of a
Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple RFR for Dollar Borrowings is the subject of a Benchmark
Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall
constitute an ABR Loan and (B) for Loans denominated in an Alternative Currency, (1) any Term Benchmark Loan shall, on the
last day of the Interest Period applicable to such Loan bear interest at the Central Bank Rate (or in the case of Canadian dollars, the
Canadian Prime Rate) for the applicable Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines
(which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate (or in the case of Canadian dollars,
the Canadian Prime Rate) for the applicable Alternative Currency cannot be determined, any outstanding affected Term Benchmark Loans
denominated in any Alternative Currency shall, at the Borrower’s election prior to such day: (A) be prepaid by the Borrower
on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark
Loan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loan denominated in U.S. Dollars and shall accrue
interest at the same interest rate applicable to Term Benchmark Loans denominated in U.S. Dollars at such time and (2) any RFR Loan
shall bear interest at the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Alternative
Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding
absent manifest error) that the Central Bank Rate (or in the case of Canadian dollars, the Canadian Prime Rate) for the applicable Alternative
Currency cannot be determined, any outstanding affected RFR Loans denominated in any Alternative Currency, at the Borrower’s election,
shall either (A) be converted into ABR Loans denominated in U.S. Dollars (in an amount equal to the Dollar Equivalent of such Alternative
Currency) immediately or (B) be prepaid in full immediately.
Section 2.15. Increased
Costs. (a) If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement,
insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted Term SOFR Rate, Adjusted EURIBOR Rate, Adjusted Term CORRA Rate or Adjusted AUD
Rate, as applicable) or the Issuing Bank; or
(ii) impose
on any Lender or the Issuing Bank or the applicable offshore interbank market for the applicable Agreed Currency any other condition,
cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
or
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(iii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of
the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall
be to increase the cost to such Lender, Issuing Bank or such other Recipient of making, continuing, converting or maintaining any
Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such other
Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate
such Lender, such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If
any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect
of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or
the Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of or the Loans made by, or participations
in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing
Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may
be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation
therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
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Section 2.16. Break
Funding Payments. (a) With respect to Loans that are not RFR Loans, in the event of (i) the payment of any principal of
any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default
or as a result of any prepayment pursuant to Section 2.11), (ii) the conversion of any Term Benchmark Loan other than
on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert, continue or prepay any Term Benchmark
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(d) and
is revoked in accordance therewith), (iv) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.19 or 9.02(c), or (v) the failure
by the Borrower to make any payment of any Loan or drawing under any Letter of Credit (or interest due thereof) denominated in an Alternative
Currency on its scheduled due date or any payment thereof in a different currency, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.
(b) With
respect to RFR Loans, in the event of (i) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (ii) the
failure to borrow or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice
may be revoked under Section 2.11(d) and is revoked in accordance therewith), (iii) the assignment of any
RFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by the Borrower pursuant to Section 2.19
or 9.02(c) or (iv) the failure by the Borrower to make any payment of any Loan or drawing under any Letter of Credit
(or interest due thereof) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency,
then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
Section 2.17. Withholding
of Taxes; Gross-Up.
(a) Payments
Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without
deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith
discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding
agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax,
then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been
made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17), the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
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(b) Payment
of Other Taxes by Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable
law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.
(c) Evidence
of Payment. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17,
the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(d) Indemnification
by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender, shall be conclusive absent manifest error.
(e) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor,
for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any
Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance
of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender
hereby authorizes the Administrative Agent to setoff and apply any and all amounts at any time owing to such Lender under any Loan Document
or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent
under this paragraph (e).
(f) Status
of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding
two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A),
(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution
or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
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(ii) Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), an executed copy of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to payments
of interest under any Loan Document, an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E,
as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;
(2) in
the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed copy
of IRS Form W-8ECI;
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(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS Form W 8BEN or IRS Form W-8BEN-E,
as applicable; or
(4) to
the extent a Foreign Lender is not the beneficial owner, an executed copy of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2
or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio
interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4
on behalf of each such direct and indirect partner;
(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other
form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable
law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(g) Treatment
of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any
Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant
to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party
the amount paid over pursuant to this paragraph (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 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 giving rise to such refund had never been
paid. This paragraph (g) 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) Survival.
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document (including the Payment in Full of the Guaranteed Obligations).
(i) Defined
Terms. For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable
law” includes FATCA.
(j) Tax
Treatment. The Loan Parties and the Lenders agree to treat the Loans as debt of the Borrower for U.S. federal income tax purposes
and agree not to take any positions inconsistent with such treatment unless otherwise required by law.
Section 2.18. Payments
Generally; Allocation of Proceeds; Sharing of Setoffs.
(a) (i) Except
with respect to principal of and interest on Loans denominated in an Alternative Currency, the Borrower shall make each payment or prepayment
required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.15, 2.16 or 2.17, or otherwise) in Dollars prior to 12:00 noon, New York City time,
on the date when due or the date fixed for any prepayment hereunder and (ii) all payments with respect to principal and interest
on Loans denominated in an Alternative Currency shall be made in such Alternative Currency not later than the Applicable Time specified
by the Administrative Agent on the dates specified herein, in each case, in immediately available funds, without setoff, recoupment 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 Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its applicable office or offices as described in the Administrative Questionnaire provided by the Administrative
Agent to the Borrower from time to time, except payments to be made directly to the Issuing Bank as expressly provided herein and except
that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. Unless otherwise provided for herein, if any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. Without limiting the generality of the foregoing, the Administrative
Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, the Borrower is prohibited
by any law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in
the Dollar Equivalent of the Alternative Currency payment amount.
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(b) All
payments received by the Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees
or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), or (B) a mandatory prepayment
(which shall be applied in accordance with Section 2.11) or (ii) after an Event of Default has occurred and is continuing
and the Administrative Agent so elects or the Required Lenders so direct, shall be applied ratably first, to pay any fees, indemnities,
or expense reimbursements then due to the Administrative Agent and the Issuing Bank from the Borrower, second, to pay any fees,
indemnities, or expense reimbursements then due to the Lenders from the Borrower, third, to pay interest then due and payable
on the Loans ratably, fourth, to prepay principal on the Loans and unreimbursed LC Disbursements, to pay an amount to the Administrative
Agent equal to one hundred two percent (102%) of the aggregate LC Exposure, to be held as cash collateral for such Obligations, ratably,
and fifth, to the payment of any other Guaranteed Obligation due to the Administrative Agent or any Lender from the Borrower or
any other Loan Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless
a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Term Benchmark
Loan of a Class, except (i) on the expiration date of the Interest Period applicable thereto, or (ii) in the event, and only
to the extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall pay the break
funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing
and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Guaranteed Obligations.
(c) At
the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses
(including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums
payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder, whether made following a request by the
Borrower pursuant to Section 2.03.
(d) If,
except as otherwise expressly provided herein, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower
rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
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(e) Unless
the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account
of the Lenders or the Issuing Bank pursuant to the terms hereof or any other Loan Document (including any date that is fixed for prepayment
by notice from the Borrower to the Administrative Agent pursuant to Section 2.11(d)), notice from the Borrower that the Borrower
will not make such payment or prepayment, the Administrative Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing
Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the applicable Overnight Rate.
(f) The
Administrative Agent may from time to time provide the Borrower with account statements or invoices with respect to any of the Guaranteed
Obligations (the “Statements”). The Administrative Agent is under no duty or obligation to provide Statements, which,
if provided, will be solely for the Borrower’s convenience. Statements may contain estimates of the amounts owed during the relevant
billing period, whether of principal, interest, fees or other Guaranteed Obligations. If the Borrower pays the full amount indicated
on a Statement on or before the due date indicated on such Statement, the Borrower shall not be in default of payment with respect to
the billing period indicated on such Statement; provided that acceptance by the Administrative Agent, on behalf of the Lenders,
of any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall
not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.
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Section 2.19. Mitigation
Obligations; Replacement of Lenders.
(a) If
any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender
shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) If
any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender) pursuant to Section 2.17, or if any Lender
becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15
or 2.17) and obligations under this Agreement and other Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that (i) solely to the extent such consent
would be required pursuant to Section 9.04, the Borrower shall have received the prior written consent of the Administrative
Agent and the Issuing Bank (such consent not to be unreasonably withheld), (ii) such Lender 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 Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to
an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement
incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent
and such parties are participants), and (ii) the Lender required to make such assignment need not be a party thereto in order for
such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following
the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary
to evidence such assignment as reasonably requested by the applicable Lender, provided, further, that any such documents
shall be without recourse to or warranty by the parties thereto.
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Section 2.20. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees
shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 2.18(b) or otherwise) or received by the Administrative
Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder;
third, to cash collateralize LC Exposure with respect to such Defaulting Lender in accordance with this Section; fourth,
as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth,
if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize
future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance
with this Section; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks as a result of any judgment of
a court of competent jurisdiction obtained by any Lender, the Issuing Banks or against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no Default
or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements
in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related
Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment
shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and
unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure is held by the
Lenders pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post
cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto;
(c) such
Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided
in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining
whether the Required Lenders have taken or may take any action hereunder or under any other Loan Documents; provided that, except
as otherwise provided in Section 9.02, this clause (c) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
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(d) if
any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all
or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their
respective Applicable Percentages but only to the extent that such reallocation does not, as to any non-Defaulting Lender, cause
such non-Defaulting Lender’s Revolving Exposure to exceed its Revolving Commitment;
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business
Day following written notice by the Administrative Agent cash collateralize, for the benefit of the Issuing Bank, the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to
clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure
is outstanding;
(iii) if
the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the
Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to
such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if
the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders
pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’
Applicable Percentages; and
(v) if
all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or
(ii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all participation
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the
Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(e) so
long as such Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend, renew, extend or increase any Letter
of Credit, unless it is satisfied that the related exposure and such Defaulting Lender’s then outstanding LC Exposure will be 100%
covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(d),
and LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.20(d)(i) (and such Defaulting Lender shall not participate therein).
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If (i) a Bankruptcy
Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue
or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue, amend or increase any Letter
of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing
Bank to defease any risk to it in respect of such Lender hereunder.
In the event that each of
the Administrative Agent, the Borrower and the Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then (i) the LC Exposure of the Lenders shall be readjusted to reflect the inclusion
of such Lender’s Revolving Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans
of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance
with its Applicable Percentage and (ii) any cash collateral provided by the Borrower pursuant to clause (d)(ii) above shall
be returned to the Borrower within three (3) Business Days after such agreement.
Section 2.21. Returned
Payments. If, after receipt of any payment which is applied to the payment of all or any part of the Obligations (including a payment
effected through exercise of a right of setoff), the Administrative Agent or any Lender is for any reason compelled to surrender such
payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined
to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion), then the Obligations or part thereof intended
to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not
been received by the Administrative Agent or such Lender. The provisions of this Section 2.21 shall be and remain effective
notwithstanding any contrary action which may have been taken by the Administrative Agent or any Lender in reliance upon such payment
or application of proceeds. The provisions of this Section 2.21 shall survive the termination of this Agreement.
Section 2.22. Extension
of Maturity Date.
(a) The Borrower may,
by delivering an Extension Request to the Administrative Agent (who shall promptly deliver a copy to each of the Lenders), not less than
30 days in advance of the Revolving Credit Maturity Date in effect at such time (the “Existing Maturity Date”), request
that the Lenders extend the Existing Maturity Date to the first anniversary of such Existing Maturity Date. Each Lender, acting in its
sole discretion, shall, by written notice to the Administrative Agent given not later than the date that is the 15th day after
the date of the Extension Request, or if such date is not a Business Day, the immediately following Business Day (the “Response
Date”), advise the Administrative Agent in writing whether or not such Lender agrees to the requested extension. Each Lender
that advises the Administrative Agent that it will not extend the Existing Maturity Date is referred to herein as a “Non-Extending
Lender”; provided, that any Lender that does not advise the Administrative Agent of its consent to such requested extension
by the Response Date and any Lender that is a Defaulting Lender on the Response Date shall be deemed to be a Non-Extending Lender. The
Administrative Agent shall notify the Borrower, in writing, of the Lenders’ elections promptly following the Response Date. The
election of any Lender to agree to such an extension shall not obligate any other Lender to so agree. The Revolving Credit Maturity Date
may be extended no more than two times pursuant to this Section 2.22.
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(b) (i) If,
by the Response Date, Lenders holding Commitments that aggregate 50% or more of the total Commitments shall constitute Non-Extending
Lenders, then the Existing Maturity Date shall not be extended and the outstanding principal balance of all Loans and other amounts payable
hereunder shall be payable, and the Commitments shall terminate, on the Existing Maturity Date in effect prior to such extension.
(ii) If
(and only if), by the Response Date, Lenders holding Commitments that aggregate to more than 50% of the total Commitments shall have
agreed to extend the Existing Maturity Date (each such consenting Lender, an “Extending Lender”), then effective on
and as of the effective date of the applicable extension under this Section 2.22, the Revolving Credit Maturity Date for
such Extending Lenders shall be extended to the first anniversary of the Existing Maturity Date (subject to satisfaction of the conditions
set forth in Section 2.22(d)). In the event of such extension, the Commitment of each Non-Extending Lender shall terminate
on the Existing Maturity Date in effect for such Non-Extending Lender prior to such extension and the outstanding principal balance of
all Loans and other amounts payable hereunder to such Non-Extending Lender shall become due and payable on such Existing Maturity Date
and, subject to Section 2.22(c) below, the total Commitments hereunder shall be reduced by the Commitments of the Non-Extending
Lenders so terminated on such Existing Maturity Date.
(c) In
the event of any extension of the Existing Maturity Date pursuant to Section 2.22(b)(ii), the Borrower shall have the right
on or before the Existing Maturity Date, at its own expense, to require any Non-Extending Lender to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in Section 9.04) all its interests, rights (other than its
rights to payments pursuant to Section 2.15, Section 2.16, Section 2.17 or Section 9.03
arising prior to the effectiveness of such assignment) and obligations under this Agreement to one or more banks or other financial institutions
identified to the Non-Extending Lender by the Borrower, which may include any existing Lender (each a “Replacement Lender”);
provided that (i) such Replacement Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative
Agent and each Issuing Bank (such approvals to not be unreasonably withheld) to the extent the consent of the Administrative Agent or
the Issuing Banks would be required to effect an assignment under Section 9.04(b), (ii) such assignment shall become
effective as of a date specified by the Borrower (which shall not be later than the Existing Maturity Date in effect for such Non-Extending
Lender prior to the effective date of the requested extension) and (iii) the Replacement Lender shall pay to such Non-Extending
Lender in immediately available funds on the effective date of such assignment the principal of and interest accrued to the date of payment
on the outstanding principal amount Loans made by it hereunder and all other amounts accrued and unpaid for its account or otherwise
owed to it hereunder on such date.
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(d) As
a condition precedent to each such extension of the Existing Maturity Date pursuant to Section 2.22(b)(ii), the
Borrower shall (i) deliver to the Administrative Agent a certificate of the Borrower dated as of the Existing Maturity Date signed
by a Responsible Officer of the Borrower certifying that, as of such date, both before and immediately after giving effect to such extension,
(A) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects
(except that any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct
in all respects as so qualified) on such date immediately prior to, and after giving effect to, such extension (except that any representations
and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or in all respects if qualified
by materiality or Material Adverse Effect) as of such earlier date) and (B) no Default or Event of Default shall have occurred and
be continuing and (ii) first make such prepayments of the outstanding Loans and second provide such cash collateral (or make such
other arrangements satisfactory to the applicable Issuing Bank) with respect to the outstanding Letters of Credit as shall be required
such that, after giving effect to the termination of the Commitments of the Non-Extending Lenders pursuant to Section 2.22(b) and
any assignment pursuant to Section 2.22(c), the aggregate Revolving Exposure less the face amount of any Letter of Credit
supported by any such cash collateral (or other satisfactory arrangements) so provided does not exceed the aggregate amount of Commitments
being extended.
(e) For
the avoidance of doubt, (i) no consent of any Lender (other than the existing Lenders participating in the extension of the Existing
Maturity Date) shall be required for any extension of the Maturity Date pursuant to this Section 2.22 and (ii) the operation
of this Section 2.22 in accordance with its terms is not an amendment subject to Section 9.02.
(f) Conflicting
Provisions. This Section shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Article 3
Representations and Warranties
Each Loan Party represents
and warrants to the Lenders that (and where applicable, agrees):
Section 3.01. Organization;
Powers. Each Loan Party and each Subsidiary is duly organized or formed, validly existing and in good standing under the laws of
the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such qualification is required.
Section 3.02. Authorization;
Enforceability. The Transactions are within each Loan Party’s corporate or other organizational powers and have been duly authorized
by all necessary corporate or other organizational actions and, if required, actions by equity holders. Each Loan Document to which each
Loan Party is a party has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of
such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.
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Section 3.03. Governmental
Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will
not violate any Requirement of Law applicable to any Loan Party or any Subsidiary, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon any Loan Party or any Subsidiary or the assets of any Loan Party or any Subsidiary,
or give rise to a right thereunder to require any payment to be made by any Loan Party or any Subsidiary, and (d) will not result
in the creation or imposition of, or other requirement to create, any Lien on any asset of any Loan Party or any Subsidiary.
Section 3.04. Financial
Condition; No Material Adverse Change.
(a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash
flows as of and for the fiscal years ended December 31, 2024 and December 31, 2025, each reported on by Ernst & Young
LLP, independent public accountants. Such financial statements present fairly, in all material respects, the financial position and results
of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with
GAAP.
(b) No
event, development or circumstance has occurred that has had, or could reasonably be expected to have, a Material Adverse Effect, since
December 31, 2025.
Section 3.05. Properties.
(a) Each
of the Loan Parties and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for such defects in title that, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) Each
Loan Party and each Subsidiary owns, licenses or possesses the right to use, all trademarks, tradenames, copyrights, patents and other
intellectual property necessary to its business as currently conducted, and the use thereof by each Loan Party and each Subsidiary does
not conflict with the rights of any other Person, except to the extent that such failure to own, license or possess or such conflicts,
either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.06. Litigation
and Environmental Matters.
(a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any
Loan Party, threatened against or affecting any Loan Party or any Subsidiary (i) as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect (other than the Disclosed Matters set forth on Schedule 3.06) or (ii) that involve any Loan
Document or the Transactions.
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(b) Except
for the Disclosed Matters, (i) no Loan Party or any Subsidiary has received notice of any claim with respect to any Environmental
Liability or knows of any basis for any Environmental Liability of any Loan Party or Subsidiary and (ii) and except with respect
to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect,
no Loan Party or any Subsidiary (A) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (B) has become subject to any Environmental Liability, (C) has
received notice of any claim with respect to any Environmental Liability or (D) knows of any basis for any Environmental Liability
of any Loan Party or Subsidiary.
Section 3.07. Compliance
with Laws and Agreements; No Default. Except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, each Loan Party and each Subsidiary is in compliance with (i) each Requirement
of Law applicable to it or its property and (ii) all indentures, agreements and other instruments binding upon it or its property.
No Default has occurred and is continuing.
Section 3.08. Investment
Company Status. No Loan Party or any Subsidiary is an “investment company” as defined in, or subject to regulation under,
the Investment Company Act of 1940.
Section 3.09. Taxes.
Each Loan Party and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable, has set aside on its books adequate reserves
or (b) to the extent that the failure to do so would not be expected to result in a Material Adverse Effect. No tax liens have been
filed and no claims are being asserted with respect to any such taxes.
Section 3.10. ERISA.
(a) No
ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. Except as could not reasonably
be expected to result in a Material Adverse Effect, (i) the present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Accounting Standards Codification No. 715-30) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan and (ii) the present
value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards
Codification No. 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
(b) None
of the Loan Parties is an entity deemed to hold Plan Assets, and, for so long as the Lender is not using Plan Assets, neither the execution
or delivery of, nor performance of the transactions contemplated under, this Agreement, including the making of any Loan or the issuance
of any Letter of Credit hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code.
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Section 3.11. Disclosure.
The Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which any Loan Party
or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the other reports, financial statements, certificates
or other information furnished by or on behalf of any Loan Party or any Subsidiary to the Administrative Agent or any other Lender in
connection with the negotiation of this Agreement or any other Loan Document (as modified or supplemented by other information so furnished),
taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein
(when taken as a whole), in the light of the circumstances under which they were made, not misleading; provided that, with respect
to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date,
as of the Effective Date (it being understood that such projected information may vary from actual results and that such variances may
be material).
Section 3.12. [Reserved].
Section 3.13. Solvency.
(a) Immediately
after the consummation of the Transactions to occur on the Effective Date, (i) the fair value of the assets of each Loan Party,
at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable
value of the property of each Loan Party will be greater than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) each
Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) no Loan Party will have unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be conducted after the Effective Date.
(b) No
Loan Party intends to, nor will permit any Subsidiary to, and no Loan Party believes that it or any Subsidiary will, incur debts beyond
its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.
Section 3.14. Insurance.
The insurance maintained by or on behalf of the Loan Parties and their Subsidiaries is adequate and is customary for companies engaged
in the same or similar businesses operating in the same or similar locations.
Section 3.15. Capitalization
and Subsidiaries. Part A of Schedule 3.15 sets forth (a) a correct and complete list of the name and relationship
to the Borrower of each Subsidiary, (b) a true and complete listing of each class of the Borrower’s authorized Equity Interests,
of which all of such issued Equity Interests are validly issued, outstanding, fully paid and non-assessable, and owned beneficially and
of record by the Persons identified on Part A of Schedule 3.15, and (c) the type of entity of the Borrower and
each Subsidiary. Part B of Schedule 3.15 sets forth (a) a correct and complete list of the name and relationship
to the Borrower of each Workout Entity and (b) the type of entity of each Workout Entity. All of the issued and outstanding Equity
Interests owned by any Loan Party have been (to the extent such concepts are relevant with respect to such ownership interests) duly
authorized and issued and are fully paid and non-assessable.
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Section 3.16. [Reserved].
Section 3.17. [Reserved].
Section 3.18. Margin
Regulations. No Loan Party is engaged and will not engage, principally or as one of its important activities, in the business of
purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds
of any Borrowing or Letter of Credit extension hereunder will be used to purchase or carry any Margin Stock. Following the application
of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of any
Loan Party only or of the Loan Parties and their Subsidiaries on a consolidated basis) will be Margin Stock.
Section 3.19. Use
of Proceeds. The proceeds of the Loans have been used and will be used, whether directly or indirectly as set forth in Section 5.08.
Section 3.20. No
Burdensome Restrictions. No Loan Party is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 6.10.
Section 3.21. Anti-Corruption
Laws and Sanctions and Export Controls. Each Loan Party has implemented and maintains in effect policies and procedures designed
to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees, agents and advisors, in
their capacity as such, with Anti-Corruption Laws, Export Controls and applicable Sanctions, and such Loan Party, its Subsidiaries and
their respective officers and directors and to the knowledge of such Loan Party its employees and agents, are in compliance with Anti-Corruption
Laws, Export Controls and applicable Sanctions in all material respects. None of (a) any Loan Party, any Subsidiary, any of their
respective directors or officers or, to the knowledge of any such Loan Party or Subsidiary, employees, or (b) to the knowledge of
any such Loan Party or Subsidiary, any agent of such Loan Party or any Subsidiary that will act in any capacity in connection with or
benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds, Transaction
or other transaction contemplated by this Agreement or the other Loan Documents will violate Anti-Corruption Laws, Export Controls or
applicable Sanctions.
Section 3.22. Affected
Financial Institutions. No Loan Party is an Affected Financial Institution.
Section 3.23. Outbound
Investment Rules. Neither the Borrower nor any of its Subsidiaries is a ‘covered foreign person’ as that term is used
in the Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries currently engages, or has any present intention to
engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as
each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered
activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower
were a U.S. Person or (iii) any other activity that would cause the Administrative Agent or any Lender to be in violation of the
Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from
performing under this Agreement.
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Article 4
Conditions
Section 4.01. Effective
Date. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit
Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received (i) from each party hereto a counterpart
of this Agreement signed on behalf of such party (which, subject to Section 9.06(b), may include any Electronic Signatures
transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) and
(ii) any promissory notes requested by a Lender pursuant to Section 2.10 payable to the order of each such requesting
Lender.
(b) Financial
Statements. The Lenders shall have received satisfactory (i) audited consolidated financial statements of the Borrower for the
December 31, 2024 and 2025 fiscal years and (ii) unaudited consolidated financial statements of the Borrower for the fiscal
quarter ended March 31, 2026. For the avoidance of doubt, posting such financial statements to the Borrower's website shall satisfy
the delivery requirements of this clause (b).
(c) Closing
Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received (i) a
certificate of each Loan Party, dated the Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify
the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents
to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Loan Party authorized to
sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) contain appropriate
attachments, including the charter, articles or certificate of organization or incorporation of each Loan Party certified by the relevant
authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or
partnership agreement, or other organizational or governing documents, and (ii) a good standing certificate for each Loan Party
from its jurisdiction of organization.
(d) Officers
Certificate. The Administrative Agent shall have received a certificate, signed by a president, a vice president or a Financial Officer
of the Borrower, dated as of the Effective Date, confirming compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) Solvency
Certificate. The Administrative Agent shall have received a Solvency Certificate, signed by a Financial Officer of the Borrower,
dated as of the Effective Date.
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(f) Legal
Opinion. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of (i) Clifford Chance US LLP, New York counsel for the Loan Parties and (ii) Venable
LLP, Maryland counsel for the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent. The Borrower
hereby requests such counsel to deliver such opinion.
(g) Fees.
The Lenders, the Arranger, the Sustainability Structuring Agent and the Administrative Agent shall have received all fees required to
be paid, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses
of legal counsel), on or before the Effective Date.
(h) Refinancing.
Substantially simultaneously with the initial Borrowing of the Revolving Loans, the Existing Debt Facilities Refinancing shall be consummated.
(i) USA
PATRIOT Act, Etc. The Administrative Agent and the Lenders shall have received, (x) at least five (5) days prior to the
Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your
customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing
of the Borrower at least ten (10) days prior to the Effective Date, (y) a properly completed and signed IRS Form W-8 or
W-9, as applicable, for each Loan Party and (z) to the extent the Borrower qualifies as a “legal entity customer” under
the Beneficial Ownership Regulation, at least five (5) days prior to the Effective Date, any Lender that has requested, in a written
notice to the Borrower at least ten (10) days prior to the Effective Date, a Beneficial Ownership Certification in relation to the
Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of
its signature page to this Agreement, the condition set forth in this clause (z) shall be deemed to be satisfied).
(j) Other
Approvals. All Governmental Authority and third party approvals necessary or, in the discretion of the Administrative Agent, advisable
in connection with the financing contemplated hereby and the continuing operations of the Borrower and its Subsidiaries shall have been
obtained and be in full force and effect.
(k) Term
Loan Documents. The Borrower and the Effective Date Subsidiary Guarantors shall have executed and delivered satisfactory Term Loan
Documents, dated as of the Effective Date, the “Effective Date” (as defined in the Term Loan Credit Agreement) shall have
occurred and the Borrower shall have received the Net Cash Proceeds of the term loans funded under the Term Loan Credit Agreement.
The Administrative Agent shall notify the Borrower,
the Lenders and the Issuing Bank of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing,
the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 2:00 p.m.,
New York time, on September 15, 2026 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
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Section 4.02. Each
Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend
or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) The
representations and warranties of the Loan Parties set forth in the Loan Documents (excluding the representations and warranties set
forth in Section 3.06(a) and Section 3.04(b)) shall be true and correct in all material respects (except
that any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all
respects as so qualified) with the same effect as though made on and as of the date of such Borrowing or the date of issuance, amendment,
or extension of such Letter of Credit, as applicable (it being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date,
and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all
respects).
(b) At
the time of, or on a pro forma basis after giving effect to the making of such Borrowing or the issuance, amendment, renewal, or extension
of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) The
Administrative Agent and, if applicable, the relevant Issuing Bank shall have received a Borrowing Request in accordance with the requirements
hereof.
Each Borrowing and each issuance, amendment,
or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
Article 5
Affirmative Covenants
Until the Commitments have
expired or been terminated and 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, in each case, without any pending draw, and all LC Disbursements shall have
been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties,
with the Lenders that:
Section 5.01. Financial
Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within
90 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by independent public accountants of recognized national standing (without a “going
concern” or like qualification, commentary or exception, and without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
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(b) within
45 days after the end of each of the first three fiscal quarters of the Borrower, its consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of
such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case
of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting
fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within
90 days after the end of each fiscal year of the Borrower, beginning with the fiscal year of the Borrower ending December 31, 2026,
a Pricing Certificate containing the information and calculations set forth in the Pricing Certificate, as applicable, necessary for
determining the Drawn Pricing Adjustment and the Undrawn Pricing Adjustment, in each case, for the applicable fiscal year, subject to
Section 9.23; provided that failure to deliver the Pricing Certificate will not result in a Default or an Event of
Default; provided, further, that no more than one Pricing Certificate may be delivered in any fiscal year;
(d) within
the earlier of (x) 10 Business Days after any delivery of financial statements under clause (a) or (b) above and (y) 90
days after the end of each fiscal year of the Borrower (in the case of any delivery of financial statements under clause (a) above)
or 45 days after the end of each of the first three fiscal quarters of the Borrower (in the case of any delivery of financial statements
under clause (b) above), a Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause
(b) above, as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations
demonstrating compliance with the financial covenants set forth in Sections 6.12 through 6.15 then in effect (including
the identity of, and any adjustments for, any Workout Entities), and (iv) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) [reserved];
(f) [reserved];
(g) [reserved];
(h) promptly
after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any
Loan Party or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with
any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
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(i) promptly
after receipt thereof by the Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by the SEC or
such other agency regarding financial or other operational results of the Borrower or any Subsidiary thereof;
(j) promptly
following any request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts
or books of the Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative
Agent) may reasonably request;
(k) promptly
following any request therefor, (x) such other information regarding the operations, material changes in ownership of Equity Interests,
business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender (through the Administrative Agent) may reasonably request, (y) information and documentation
reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer”
and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation and (z) such
other information regarding sustainability matters and practices of any Loan Party or any Subsidiary (including with respect to sustainability
initiatives or strategy, corporate governance, environmental, social and employee matters, respect for human rights, anti-corruption
and anti-bribery) as the Administrative Agent or any Lender may reasonably request for purposes of compliance with any legal or regulatory
requirement or internal policies applicable to it; and
(l) promptly
after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of
ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described
in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan;
provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor
of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents
and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.
Documents required to be delivered pursuant to
Sections 5.01(a), (b) and (h) (to the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which such
materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (ii) on which
such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether made available by the Administrative Agent); provided
that upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower, the Borrower
shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender. The Administrative Agent shall have no obligation to request the delivery
of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance
by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted
documents or requesting delivery of paper copies of such document to it and maintaining its copies of such documents.
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Section 5.02. Notices
of Material Events. The Borrower will furnish to the Administrative Agent (which shall promptly notify each Lender in accordance
with its customary practice) prompt (but in any event within any time period that may be specified below) written notice of the following:
(a) its
knowledge of the occurrence of any Default;
(b) receipt
of any notice of any investigation by a Governmental Authority or any litigation or proceeding commenced or threatened against any Loan
Party or any Subsidiary that could reasonably be expected to be adversely determined, and, if so determined, could reasonably be expected
to have a Material Adverse Effect;
(c) [reserved];
(d) the
occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to
have a Material Adverse Effect;
(e) notice
of a Sustainability Pricing Inaccuracy;
(f) any
change in the credit ratings from a credit rating agency, or the placement by a credit rating agency of any Loan Party on a “Credit
Watch” or “WatchList” or any similar list, in each case with negative implications, or the cessation by a credit rating
agency of, or its intent to cease, rating such Loan Party’s debt; and
(g) any
other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section (i) shall
be in writing, (ii) shall contain a heading or a reference line that reads “Notice under Section 5.02 of the Credit Agreement
dated July 14, 2026” and (iii) shall be accompanied by a statement of a Financial Officer or other executive officer
of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken
with respect thereto.
Section 5.03. Existence;
Conduct of Business. Each Loan Party will, and will cause each Subsidiary to, (a) (i) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence, (ii) take all action to maintain all the rights,
qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits material
to the conduct of its business and (iii) maintain all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, except in each case of clauses (ii) and (iii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03 and (b) carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is presently conducted.
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Section 5.04. Payment
of Obligations. Each Loan Party will, and will cause each Subsidiary to, pay or discharge all Material Indebtedness and all other
material liabilities and obligations, including Taxes, before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Loan Party or Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
Section 5.05. Maintenance
of Properties. Each Loan Party will, and will cause each Subsidiary to, keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted.
Section 5.06. Books
and Records; Inspection Rights. Each Loan Party will, and will cause each Subsidiary to, (a) keep proper books of record and
account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities
and (b) permit any representatives designated by the Administrative Agent or any Lender (including employees of the Administrative
Agent or any Lender or any consultants, accountants, lawyers, agents and appraisers retained by the Administrative Agent), upon at least
three (3) Business Days reasonable prior notice, to visit and inspect its properties and conduct at the Loan Party’s premises
field examinations of the Loan Party’s assets, liabilities, books and records, including examining and making extracts from its
books and records, and to discuss its affairs, finances and condition with its officers and independent accountants (and hereby authorizes
the Administrative Agent and each Lender to contact its independent accountants directly); provided that except during the continuation
of an Event of Default, (i) only the Administrative Agent (either for its own account or on behalf of any Lender) may exercise rights
under this clause (b) and (ii) only one (1) such visit is permitted per calendar year. The Loan Parties acknowledge that
the Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the Lenders certain reports pertaining
to the Loan Parties’ assets for internal use by the Administrative Agent and the Lenders.
Section 5.07. Compliance
with Laws and Material Contractual Obligations. Each Loan Party will, and will cause each Subsidiary to, (i) comply with each
Requirement of Law applicable to it or its property (including, without limitation, Environmental Laws and Export Controls) and (ii) perform
in all material respects its obligations under material agreements to which it is a party, except, in each case, where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Loan Party will
maintain in effect and enforce policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
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Section 5.08. Use
of Proceeds.
(a) The
proceeds of the Loans and the Letters of Credit will be used (i) to repay in full any amounts outstanding under the Existing Credit
Agreement and the Existing Term Loan Credit Agreement, (ii) to repay in full any amounts outstanding under the Existing Rabo Credit
Agreement and (iii) for general corporate purposes of the Borrower and its Subsidiaries in the ordinary course of business. No part
of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the regulations of the Federal Reserve Board, including Regulations T, U and X.
(b) The
Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and the Borrower shall procure that its
Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter
of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating
any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted
for a Person required to comply with Sanctions, (c) in any manner that would result in the violation of any Sanctions applicable
to any party hereto or (d) (i) to finance any activity in violation of Export Controls or where such violation is about to
occur, or (ii) otherwise in violation of Export Controls.
Section 5.09. Accuracy
of Information. The Loan Parties will ensure that any information, including financial statements or other documents, furnished to
the Administrative Agent or the Lenders in connection with this Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder contains no material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the furnishing of such
information shall be deemed to be a representation and warranty by the Loan Parties on the date thereof as to the matters specified in
this Section 5.09.
Section 5.10. Insurance.
Each Loan Party will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies, insurance
with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly
situated Persons engaged in the same or similar businesses as the Loan Parties and their Subsidiaries) as are customarily carried under
similar circumstances by such Persons.
Section 5.11. Future
Guarantees. On the Effective Date, the Guaranteed Obligations will be guaranteed solely by each of the Effective Date Subsidiary
Guarantors. If, on any date (a “Guarantee Date”), any Domestic Subsidiary of the Borrower (other than a Domestic Subsidiary
of the Borrower that is an Excluded Subsidiary or a Securitization Entity) either (i) guarantees any Corporate Indebtedness (other
than the Obligations) or (ii) is the issuer or borrower, as applicable, of any outstanding Corporate Indebtedness, in each case,
in an aggregate principal amount in excess of $2,500,000, the Borrower will cause such Domestic Subsidiary to execute and deliver to
the Administrative Agent, within 30 days after such Guarantee Date (except as set forth in the proviso below), a Joinder Agreement; provided
that, if a Domestic Subsidiary that would have been required to guarantee the Guaranteed Obligations but for the fact that it was an
Excluded Subsidiary or a Securitization Entity shall be required to guarantee the Guaranteed Obligations because it shall have ceased
to be an Excluded Subsidiary or a Securitization Entity, or if a Subsidiary that was a Foreign Subsidiary shall be required to guarantee
the Guaranteed Obligations because it shall have become a Domestic Subsidiary that is not an Excluded Subsidiary or a Securitization
Entity, as the case may be, the Joinder Agreement referred to above shall be delivered to the Administrative Agent within 30 days after
the date such Domestic Subsidiary shall have ceased to be an Excluded Subsidiary or a Securitization Entity or such Foreign Subsidiary
shall have become a Domestic Subsidiary that is not an Excluded Subsidiary or Securitization Entity, as the case may be. In connection
therewith, the Administrative Agent and the Lenders shall have received all documentation and other information regarding such Subsidiaries
as may be required to comply with the applicable “know your customer” rules and regulations, including the USA Patriot
Act and the Beneficial Ownership Regulation. Upon execution and delivery thereof, each such Person shall automatically become a Loan
Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents.
Anything in this Agreement to the contrary notwithstanding, no Excluded Subsidiary, Securitization Entity or Foreign Subsidiary shall
be required to guarantee the Guaranteed Obligations or become a Loan Guarantor. The obligations of each Loan Guarantor under its Guarantee
of the Guaranteed Obligations will be limited as provided in Article 10.
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Anything in this Agreement
to the contrary notwithstanding, a Loan Guarantor's Guarantee of the Guaranteed Obligations will automatically and permanently terminate
and be released, all other obligations of such Loan Guarantor under this Agreement will automatically and permanently terminate and such
Loan Guarantor will be automatically and permanently released from all of its obligations under its Guarantee of the Guaranteed Obligations
under the circumstances set forth in Section 10.08.
Without limiting the foregoing,
each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative
Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including such actions or
deliveries of the type required by Section 4.01, as applicable), which may be required by any Requirement of Law or which
the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other
Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
Article 6
Negative Covenants
Until the Commitments have
expired or been terminated and 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, in each case, without any pending draw, and all LC Disbursements shall have
been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties,
with the Lenders that:
Section 6.01. Indebtedness.
No Loan Party will, nor will it permit any Subsidiary to, directly or indirectly, create, incur, assume, guarantee or otherwise become
liable for payment of (collectively, “incur”) any Indebtedness, except:
(a) (i) Indebtedness
under the Loan Documents and (ii) other Indebtedness incurred after the Effective Date under any other credit facilities (including
the issuance and creation of letters of credit, bankers’ acceptances and similar instruments thereunder) if, immediately after
giving effect to the incurrence of such Indebtedness under this clause (a)(ii) and the receipt and application of the proceeds
therefrom, the aggregate principal amount of Indebtedness, determined on a consolidated basis under GAAP, outstanding under this clause
(a)(ii) shall not exceed the greater of (x) $100,000,000 and (y) 4% of Total Assets of the Borrower at such time;
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(b) Indebtedness
existing on the date hereof (other than Indebtedness described in clause (a) above) and set forth in Schedule 6.01 and
any extensions, renewals, refinancings and replacements of any such Indebtedness in accordance with clause (n) hereof;
(c) (i) Deferred
Funding Obligations and (ii) Repurchase Agreements in respect of U.S. Government Obligations;
(d) Indebtedness
of the Borrower or any of its Subsidiaries under Commodity Agreements, Currency Agreements and Interest Rate Agreements incurred or entered
into for hedging purposes and not for speculative purposes;
(e) Intercompany
Indebtedness; provided, however, that:
(i) if
the Borrower is the obligor on Indebtedness owing to and held by a Non-Guarantor, such Indebtedness is expressly subordinated in right
of payment to the Obligations under the Loan Documents;
(ii) if
a Loan Guarantor is the obligor on Indebtedness owing to and held by a Non-Guarantor, such Indebtedness is expressly subordinated in
right of payment to such Loan Guarantor's Guarantee of the Guaranteed Obligations; and
(iii) (A) any
subsequent issuance or transfer of Equity Interests or other event which results in any such Indebtedness being held by a Person other
than the Borrower or a Subsidiary of the Borrower and (B) any sale or other transfer of any such Indebtedness to a Person other
than the Borrower or a Subsidiary of the Borrower, shall in each case referred to in clause (A) and (B) immediately above be
deemed to constitute an incurrence of such Indebtedness by the Borrower or such Subsidiary not permitted by this clause (e);
(f) Indebtedness
of the Borrower or any of its Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness
is extinguished within ten Business Days of incurrence;
(g) (x) Indebtedness
of the Borrower or any of its Subsidiaries in respect of banker’s acceptances, workers’ compensation claims, surety, performance,
bid, customs, stay, appeal, tax or similar bonds, security deposits, performance or completion guarantees and payment obligations in
connection with self-insurance or similar obligations provided or obtained by the Borrower or any Subsidiary of the Borrower in the ordinary
course of business and (y) Indebtedness of the Borrower or any of its Subsidiaries owed to (including in respect of letters of credit
for the benefit of) any Person in connection with workers’ compensation, early retirement or termination obligations, pension fund
obligations or contributions or similar claims, obligations, taxes or contributions for social security, wages or unemployment, health,
disability or other employee benefits, or property, casualty or liability insurance provided to the Borrower or any of its Subsidiaries
pursuant to reimbursement or indemnification obligations of such Person, in each case incurred in the ordinary course of business;
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(h) Indebtedness
of the Borrower and its Subsidiaries if, immediately after giving effect to the incurrence of any such Indebtedness and the receipt and
application of the proceeds therefrom, the aggregate principal amount of Indebtedness of the Borrower and its consolidated Subsidiaries,
determined on a consolidated basis under GAAP, outstanding under this clause (h) shall not exceed the greater of (x) $75,000,000
and (y) 3% of Total Assets of the Borrower at such time;
(i) Indebtedness
of any Person (a) outstanding on the date of any acquisition of Investments or other securities or assets from such Person, including
through the acquisition of a Person that becomes a Subsidiary of the Borrower or is acquired by, or merged or consolidated with or into,
the Borrower or any Subsidiary of the Borrower, or that is assumed by the Borrower or any of its Subsidiaries in connection with any
such acquisition (other than Indebtedness incurred by such Person in connection with, or in contemplation of, such acquisition, merger
or consolidation) or (b) incurred by the Borrower or any of its Subsidiaries to provide all or any portion of the funds utilized
to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition
of, any Investments or other securities or assets, including through the acquisition of a Person that becomes a Subsidiary of the Borrower
or is acquired by, or merged or consolidated with or into, the Borrower or any Subsidiary of the Borrower, provided, however, that immediately
after giving effect to the incurrence of such Indebtedness pursuant to this clause (i) and, if applicable, the repayment, repurchase,
defeasance, redemption, Refinancing or other discharge of any other Indebtedness in connection with such acquisition, merger or consolidation,
on a pro forma basis, (x) the Borrower and its Subsidiaries are in compliance with the financial covenants set forth in Sections
6.12 through Section 6.15 then in effect and (y) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence of such incurrence and, if applicable, the repayment, repurchase, defeasance, redemption, Refinancing
or other discharge of any other Indebtedness in connection with such acquisition, merger or consolidation;
(j) Indebtedness
of the Borrower or any of its Subsidiaries arising from agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification,
adjustment of purchase price, earn-outs or similar obligations, in each case incurred or assumed in connection with an investment in
or the acquisition or disposition of any business, Investments or other securities or assets of the Borrower or any business, Investments,
other securities or assets or Equity Interest of a Subsidiary of the Borrower, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, Investments, assets or Equity Interest for the purpose of financing such acquisition;
(k) Indebtedness
incurred by the Borrower or any Subsidiary of the Borrower in connection with (i) insurance premium financing arrangements, (ii) deferred
compensation payable to directors, officers, members of management, employees or consultants of the Borrower or any Subsidiary of the
Borrower, (iii) contingent obligations arising under indemnity agreements to title insurance companies to cause such title insurers
to issue title insurance policies in the ordinary course of business with respect to real property of the Borrower or any Subsidiary
of the Borrower, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted
to remain unfunded under applicable law and (v) obligations, contingent or otherwise, for the payment of money under any non-compete,
consulting or similar arrangements entered into with the seller of a business or any other similar arrangements providing for the deferred
payment of the purchase price for an Investment or other securities or assets or any other acquisition;
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(l) Indebtedness
of the Borrower or any of its Subsidiaries owed to banks and other financial institutions incurred in the ordinary course of business
of the Borrower and its Subsidiaries in connection with ordinary banking arrangements to provide treasury services or to manage cash
balances of the Borrower and its Subsidiaries;
(m) Indebtedness
consisting of promissory notes issued by the Borrower or any Subsidiary of the Borrower to future, present or former directors, officers,
employees or consultants of the Borrower or any of its Subsidiaries or their respective assigns, estates, heirs, family members, spouses,
former spouses, domestic partners or former domestic partners to finance the purchase, redemption or other acquisition, cancellation
or retirement of Equity Interest, or options, warrants, equity appreciation rights or other rights to purchase or acquire Equity Interest
or other equity-based awards, of the Borrower or any Subsidiary of the Borrower;
(n) Indebtedness
which represents extensions, renewals, refinancing or replacements (such Indebtedness being so extended, renewed, refinanced or replaced
being referred to herein as the “Refinance Indebtedness”) of any of the Indebtedness described in clauses (a)(ii),
(b), (i) and (p) hereof (such Indebtedness being referred to herein as the “Original Indebtedness”);
provided that (i) such Refinance Indebtedness does not increase the principal amount of the Original Indebtedness, (ii) any
Liens securing such Refinance Indebtedness are not extended to any additional property of any Loan Party or any Subsidiary, (iii) no
Loan Party or any Subsidiary that is not originally obligated with respect to repayment of such Original Indebtedness is required to
become obligated with respect to such Refinance Indebtedness, (iv) such Refinance Indebtedness does not result in a shortening of
the average weighted maturity of such Original Indebtedness, (v) the terms of such Refinance Indebtedness are not less favorable
to the obligor thereunder than the original terms of such Original Indebtedness and (vi) if such Original Indebtedness was subordinated
in right of payment to the Obligations under the Loan Documents, then the terms and conditions of such Refinance Indebtedness must include
subordination terms and conditions that are at least as favorable to the Lender as those that were applicable to such Original Indebtedness;
(o) Guarantees
of Indebtedness of the Borrower or any Subsidiary of the Borrower (including, without limitation, Guarantees of the Obligations under
the Loan Documents) by the Borrower or any Subsidiary of the Borrower; provided that such Indebtedness was incurred or outstanding
on the Effective Date or was permitted (or not prohibited) to be incurred under this Section 6.01; and
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(p) Indebtedness
so long as, on the date of the incurrence of such Indebtedness and immediately after giving effect to the incurrence of such Indebtedness
and the repayment, repurchase, defeasance, redemption or other discharge of any other Indebtedness with the proceeds of the Indebtedness
being so incurred or in connection with the transactions pursuant to which such Indebtedness is being incurred, on a pro forma basis:
(1) the
Borrower and its Subsidiaries are in compliance with the financial covenants set forth in Sections 6.12 through Section 6.15
then in effect; and
(2) no
Default or Event of Default shall have occurred and be continuing or would occur as a consequence of such incurrence.
Notwithstanding anything to
the contrary in this Section 6.01 or in Section 6.02, in no event will any Loan Party, nor will it permit any
Subsidiary to, directly or indirectly, create, incur, assume, or suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Specified Secured Debt in an aggregate principal amount for all such Specified Secured Debt at any time outstanding
in excess of the greater of (x) $1,230,000,000 and (y) 15% of Total Assets of the Borrower at such time.
For purposes of determining
compliance with this Section 6.01 in the event that an item of Indebtedness (including Indebtedness incurred or outstanding
on the Effective Date) or portion thereof meets the criteria of more than one of clauses (a) through (o) above,
the Borrower shall, in its sole discretion, classify (and may later reclassify) such item of Indebtedness (or any portion thereof) in
any manner that complies with this Section 6.01 (it being understood, for purposes of clarity, that the Borrower will be
entitled to divide and classify, and subsequently re-divide and reclassify, an item of Indebtedness into one or more of the categories
of Indebtedness referred to in this sentence). In determining compliance with the amount of Indebtedness permitted or which may be incurred
under, or classified or reclassified to, clause (a)(iii) or clause (h) above, or the immediately preceding paragraph,
the aggregate principal amount of Indebtedness outstanding under any such clause and the amount of Total Assets of the Borrower and its
consolidated Subsidiaries shall be determined after giving effect to the incurrence of the applicable Indebtedness under, or the classification
or reclassification of the applicable Indebtedness to, such clause, as the case may be, and, if applicable, the receipt and application
of the proceeds therefrom (including, without limitation, to repay other Indebtedness and to acquire Investments, Persons, or other securities
or assets), and the maximum amount of Indebtedness that the Borrower and its Subsidiaries may incur pursuant to such clauses shall not
be deemed to be exceeded solely as a result of a subsequent decline in the amount of Total Assets of the Borrower. Accrual of interest,
accretion or amortization of original issue discount, payment of interest on any Indebtedness in the form of additional Indebtedness
with substantially the same terms, and the accrual, accumulation or payment of dividends on Disqualified Capital Stock in the form of
additional shares of the same class or series of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or
an issuance of Disqualified Capital Stock for purposes of this Section 6.01.
Section 6.02. Liens.
No Loan Party will create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues or rights in respect of any thereof, except:
(a) Liens
created pursuant to any Loan Document;
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(b) Permitted
Encumbrances;
(c) any
Lien on any property or asset of any Loan Party existing on the date hereof and set forth in Schedule 6.02; provided
that (i) such Lien shall not apply to any other property or asset of such Loan Party and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(d) any
Lien existing on any property or asset prior to the acquisition thereof by any Loan Party or existing on any property or asset of any
Person that becomes a Loan Party after the date hereof prior to the time such Person becomes a Loan Party; provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Loan Party, as the case may
be, (ii) such Lien shall not apply to any other property or assets of the Loan Party and (iii) such Lien shall secure only
those obligations which it secures on the date of such acquisition or the date such Person becomes a Loan Party, as the case may be,
and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(e) Liens
of a collecting bank arising in the ordinary course of business under Section 4-210 of the UCC in effect in the relevant jurisdiction
covering only the items being collected upon;
(f) Liens
securing obligations in respect of commercial or trade-related Letters of Credit covering the goods (or the documents of title in respect
of such goods) financed by such Letters of Credit together with the proceeds and products thereof;
(g) any
interest or title of a lessor, sublessor, licensor or sublicensor under leases or licenses permitted by this Agreement that are entered
into in the ordinary course of business;
(h) leases,
licenses, subleases or sublicenses granted to others in the ordinary course of business that do not (i) interfere in any material
respect with the ordinary conduct of the business of the Borrower and its Subsidiaries, or (ii) secure any Indebtedness;
(i) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods in the ordinary course of business; and
(j) Liens
securing Specified Secured Debt in an aggregate amount, when taken together with the aggregate principal amount of Specified Secured
Debt secured by Liens incurred pursuant to Section 6.02(c), not to exceed the greater of (x) $1,230,000,000 and (y) 15%
of Total Assets of the Borrower at such time; provided that up to $5,000,000 of the amount provided for under this clause (j) may
be used for Liens securing obligations not constituting Specified Secured Debt.
Notwithstanding anything to
the contrary in Section 6.01 or this Section 6.02, in no event will any Loan Party, nor will it permit any Subsidiary
to, directly or indirectly, create, incur, assume, or suffer to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Specified Secured Debt in an aggregate principal amount for all such Specified Secured Debt at any time outstanding in
excess of the greater of (x) $1,230,000,000 and (y) 15% of Total Assets of the Borrower at such time.
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Section 6.03. Fundamental
Changes.
(a) No
Loan Party will, nor will it permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or otherwise Dispose of all or substantially all of its assets, or all or substantially all of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate, divide or dissolve, except that,
if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any
Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any
Loan Party (other than the Borrower) may merge into any other Loan Party in a transaction in which the surviving entity is a Loan Party
and (iii) any Subsidiary that is not a Loan Party may liquidate, divide or dissolve if the Borrower determines in good faith that
such liquidation, division or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lender;
provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall
not be permitted unless also permitted by Section 6.04.
(b) No
Loan Party will, nor will it permit any Subsidiary to, consummate a Division as the Dividing Person, without the prior written consent
of the Administrative Agent. Without limiting the foregoing, if any Loan Party that is a limited liability company consummates a Division
(with or without the prior consent of the Administrative Agent as required above), each Division Successor shall be required to comply
with the obligations set forth in Section 5.11 and the other further assurances obligations set forth in the Loan Documents
and become a Loan Party under this Agreement and the other Loan Documents.
(c) No
Loan Party will, nor will it permit any Subsidiary to, engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses reasonably related or incidental thereto or representing
a reasonable expansion thereof or make any material changes to its business model.
(d) No
Loan Party will, nor will it permit any Subsidiary to, change its fiscal year or any fiscal quarter from the basis in effect on the Effective
Date.
(e) No
Loan Party will change the accounting basis upon which its financial statements are prepared.
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Section 6.04. Investments,
Loans, Advances, Guarantees and Acquisitions. No Loan Party will, nor will it permit any Subsidiary to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any Equity
Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit (whether through purchase of assets, merger or otherwise), except:
(a) Permitted
Investments;
(b) investments
in existence on the date hereof and described in Schedule 6.04;
(c) investments
by the Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries;
(d) loans
or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Loan Party or any other Subsidiary;
(e) Guarantees
constituting Indebtedness permitted by Section 6.01;
(f) loans
or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices
for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $1,000,000;
(g) notes
payable, or stock or other securities issued by account debtors to a Loan Party pursuant to negotiated agreements with respect to settlement
of such account debtor’s accounts receivable in the ordinary course of business, consistent with past practices;
(h) investments
in the form of Swap Agreements permitted by Section 6.07;
(i) investments
of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any
Subsidiary (including in connection with a permitted acquisition), so long as such investments were not made in contemplation of such
Person becoming a Subsidiary or of such merger;
(j) investments
received in connection with the disposition of assets permitted by Section 6.05;
(k) investments
in the ordinary course of business consistent with past practice and reasonable extensions, evolutions or developments thereof; and
(l) investments
constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”.
Section 6.05. Asset
Sales. No Loan Party will, nor will it permit any Subsidiary to, Dispose of any asset, including any Equity Interest owned by it,
nor will the Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than to the Borrower or
another Subsidiary in compliance with Section 6.04 or, in the case of Hannon Armstrong Sustainable Infrastructure, L.P.,
to any other Person as part of executive compensation), except:
(a) Dispositions
of assets in the ordinary course of business and consistent with past practice;
(b) Dispositions
of assets to the Borrower or any Subsidiary, provided that any such Dispositions involving a Subsidiary that is not a Loan Party
shall be made in compliance with Section 6.09;
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(c) Dispositions
of accounts receivable (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or
collection thereof;
(d) Dispositions
of Permitted Investments;
(e) Dispositions
resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Borrower or any Subsidiary;
(f) any
transfer of an asset to a special-purpose entity that meets the requirements of a “Securitization Entity”; and
(g) Dispositions
of assets (other than Equity Interests in a Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not permitted
by any other clause of this Section 6.05, provided that the aggregate fair market value of all assets Disposed of
in reliance upon this clause (g) shall not exceed $10,000,000; provided that all transfers and Dispositions permitted under
this clause (g) shall be made for fair value and for at least 75% cash consideration.
Section 6.06. [Reserved].
Section 6.07. Swap
Agreements. No Loan Party will, nor will it permit any Subsidiary to, enter into any Swap Agreement, except Swap Agreements entered
into to hedge or mitigate risks and not for speculative purposes.
Section 6.08. Restricted
Payments; Certain Payments of Indebtedness.
(a) No
Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Borrower may declare and pay dividends per share
with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, (ii) the Borrower
may declare and pay dividends with respect to its Equity Interests in an aggregate amount per share in any fiscal year of the Borrower
not to exceed 100% of the “adjusted earnings” per share or words of similar import (in each case, as such term is reported
in the Borrower’s financial statements from time to time) for such fiscal year, (iii) a Loan Party may (x) declare and
pay dividends with respect to any Specified Hybrid Securities (to the extent not constituting Subordinated Indebtedness) and (y) make
additional Restricted Payments in the form of payments to repurchase, redeem, retire, acquire, cancel or terminate any Specified Hybrid
Securities (to the extent not constituting Subordinated Indebtedness) on any Specified Call Date; provided that, in the case of
any Restricted Payment made pursuant to foregoing clauses (x) or (y), no Event of Default shall have occurred and
be continuing or would occur as a consequence of such Restricted Payment and (iv) Subsidiaries may declare and pay dividends ratably
with respect to their Equity Interests.
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(b) No
Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal of or interest on any subordinated Indebtedness, or any
payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancellation or termination of any subordinated Indebtedness, except:
(i) payment
of regularly scheduled interest and principal payments as and when due in respect of any such Indebtedness permitted under Section 6.01,
other than payments prohibited by the subordination provisions thereof;
(ii) solely
on any Specified Call Date with respect to the applicable Specified Hybrid Securities, payments of principal (together with accrued but
unpaid interest as of such date) in respect of any such Specified Hybrid Securities called by a Loan Party on such date; provided
that no Event of Default shall have occurred and be continuing or would occur as a consequence of such payments; and
(iii) refinancings
of Indebtedness to the extent permitted by Section 6.01.
Section 6.09. Transactions
with Affiliates. No Loan Party will, nor will it permit any Subsidiary to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions that (i) are in the ordinary course of business and (ii) are at prices and on terms
and conditions not less favorable to such Loan Party or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions between or among the Loan Parties and their respective Subsidiaries not involving any other Affiliate,
(c) any investment permitted by Sections 6.04(c) or 6.04(d), (d) any Indebtedness permitted under Section 6.01(e),
(e) any Restricted Payment permitted by Section 6.08, (f) loans or advances to employees permitted under Section 6.04(f),
(g) the payment of reasonable fees to directors of the Borrower or any Subsidiary who are not employees of the Borrower or any Subsidiary,
and compensation and employee benefit arrangements paid to, and indemnities provided for the benefit of, directors, officers or employees
of the Borrower or its Subsidiaries in the ordinary course of business and (h) any issuances of securities or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership plans
approved by the Borrower’s board of directors.
Section 6.10. Restrictive
Agreements. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement relating to any other Indebtedness for borrowed money or any guarantee thereof that restricts
the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets to secure
the obligations under the Loan Documents; provided that the foregoing shall not apply to (a) restrictions and conditions
imposed by law or by this Agreement, (b) restrictions and conditions that are not materially more restrictive to the Borrower or
any Subsidiary than those set forth in this Agreement, (c) restrictions and conditions existing on the date hereof pursuant to any
existing Indebtedness of the Borrower or any Subsidiary and any refinancing thereof (provided that no such refinancing is, in
the good faith judgment of the Borrower, more restrictive with respect to such restrictions, taken as a whole, than those in existence
prior to such refinancing), (d) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (e) customary
provisions restricting assignments, subletting, licensing, sublicensing or other transfers (including the granting of any Lien) contained
in leases, subleases, licenses, sublicenses and other agreements entered into in the ordinary course of business (determined by the Borrower
in good faith) and (f) restrictions and conditions that are assumed in connection with any acquisition of property or Equity Interests
of any Person, so long as the relevant encumbrance or restriction relates solely to the Person and its Subsidiaries (including the Equity
Interests of the relevant Person or Persons) and/or property so acquired and was not created in connection with or in anticipation of
such acquisition.
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Section 6.11. Amendment
of Material Documents. No Loan Party will, nor will it permit any Subsidiary to, amend, modify or waive any of its rights under (a) any
agreement relating to any Subordinated Indebtedness or (b) its charter, articles or certificate of organization or incorporation
and bylaws or operating, management or partnership agreement, or other organizational or governing documents, in each case, to the extent
any such amendment, modification or waiver would be adverse to the Lenders.
Section 6.12. Tangible
Net Worth Ratio. The Borrower will not permit the ratio of Consolidated Indebtedness to Tangible Net Worth to exceed 3.25 to 1.00
as of the last day of any fiscal quarter of the Borrower. For purposes of this Section 6.12, Indebtedness shall be determined
with reference to the balance sheet included with the most recent financial statements delivered pursuant to Section 5.01(a) or
(b), as applicable.
Section 6.13. [Reserved].
Section 6.14. Minimum
Tangible Net Worth. The Borrower will not permit the Tangible Net Worth as of the last day of any fiscal quarter of the Borrower
to be less than the sum of (a) $2,235,591,498 plus (b) 25% of the Net Cash Proceeds received by the Borrower after March 31,
2026 from any offering by the Borrower of its common Equity Interests.
Section 6.15. Unencumbered
Assets Ratio. The Borrower will not permit the ratio of Unencumbered Assets to the aggregate outstanding principal amount of unsecured
Consolidated Indebtedness to be less than 1.20 to 1.00 as of the last day of any fiscal quarter of the Borrower. For purposes of this
Section 6.15, Indebtedness shall be determined with reference to the balance sheet included with the most recent financial
statements delivered pursuant to Section 5.01(a) or (b), as applicable.
Section 6.16. Outbound
Investment Rules. Each Loan Party will not, and will not permit any of its Subsidiaries to, (a) be or become a “covered
foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a
“covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules,
(ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”,
as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that
would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative
Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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Article 7
Events of Default
If any of the following events
(“Events of Default”) shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three (3) Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of any Loan Party in, or in connection with, this Agreement or any other
Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made;
(d) any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03
(with respect to a Loan Party’s existence) or 5.08 or in Article 6;
(e) any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period
of 30 days after notice thereof from the Administrative Agent (which notice will be given at the request of any Lender); provided,
that, for the avoidance of doubt, the failure to deliver a Pricing Certificate with respect to any fiscal year by the date required by
Section 5.01(c) shall not result in a Default or Event of Default and the increase in the Applicable Margin and the
Commitment Fee Rate, in each case, as described in the definition of “Applicable Rate” shall be the only consequences of
such failure to deliver;
(f) any
Loan Party or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness (other than Non-Recourse Indebtedness), when and as the same shall become due and payable;
(g) any
event or condition occurs that results in any Material Indebtedness (other than Non-Recourse Indebtedness) becoming due prior to its
scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness (other than any Non-Recourse Indebtedness) or any trustee or agent on its or their behalf to cause any such
Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the
terms of Section 6.05;
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(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of a Loan Party or any Significant Subsidiary or its debts, or of a substantial part of its assets, under any federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Significant Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) any
Loan Party or any Significant Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for such Loan Party or Significant Subsidiary of any Loan Party or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) any
Loan Party or any Significant Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not to,
or fail generally, to pay its debts as they become due;
(k) one
or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 shall be rendered against any Loan Party,
any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during
which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any
assets of any Loan Party or any Significant Subsidiary to enforce any such judgment or any Loan Party or any Significant Subsidiary shall
fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise
being appropriately contested in good faith by proper proceedings diligently pursued;
(l) an
ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect;
(m) a
Change in Control shall occur;
(n) the
Loan Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Loan Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty,
or any Guarantor shall deny that it has any further liability under the Loan Guaranty, or shall give notice to such effect; or
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(o) any
material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any
Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction that
evidences its assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable
in accordance with its terms),
then, and in every such event (other than an
event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during
the continuance of such event, the Administrative Agent may with the consent of the Required Lenders, and at the request of the Required
Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate
the Commitments, whereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, but ratably as among the Loans at the time outstanding, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and all fees (including, for the avoidance of doubt, any break funding payments) and other obligations
of the Borrower accrued hereunder and under any other Loan Document, shall become due and payable immediately, in each case without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and (iii) require cash collateral for
the LC Exposure in accordance with Section 2.06(j) hereof; and in the case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, and cash collateral for the LC Exposure, together with accrued interest thereon and all fees (including, for
the avoidance of doubt, any break funding payments) and other obligations of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative
Agent may, and at the request of the Required Lenders shall, increase the rate of interest applicable to the Loans and other Obligations
as set forth in this Agreement and exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or
at law or equity, including all remedies provided under the UCC.
Article 8
The Administrative Agent
Section 8.01. Authorization
and Action.
(a) Each
Lender and each Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and
its successors and assigns to serve as the administrative agent under the Loan Documents and each Lender and each Issuing Bank authorizes
the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental
thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and
each Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Loan Document
governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. Without limiting the foregoing,
each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under,
each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative
Agent may have under such Loan Documents.
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(b) As
to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative
Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked
in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that the Administrative
Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability
unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the
Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including
any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization
or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of
any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that
the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action
and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents,
the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to the Borrower, any other Loan Party, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by
the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative
Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(c) In
performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf
of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the
Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent and the Sustainability
Structuring Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting
the generality of the foregoing:
(i) the
Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the
agent, fiduciary or trustee of or for any Lender, Issuing Bank or any other Guaranteed Party other than as expressly set forth herein
and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood
and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to
the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency
doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an
administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against
the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or
the transactions contemplated hereby; and
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(ii) nothing
in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element
of any sum received by the Administrative Agent for its own account.
(d) The
Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible
for the negligence or misconduct of any sub-agent 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-agent.
(e) The
Arranger, Documentation Agents and the Sustainability Structuring Agent shall not have obligations or duties whatsoever in their respective
capacities under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in their respective capacities,
but all such persons shall have the benefit of the indemnities provided for hereunder.
(f) In
case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by
intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Disbursements
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections 2.12, 2.13,
2.15, 2.17 and 9.03) allowed in such judicial proceeding; and
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(ii) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and
each other Guaranteed Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders, the Issuing Banks or the other Guaranteed Parties, to pay to the Administrative
Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03).
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf
of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank
in any such proceeding.
(g) The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except
solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, neither
the Borrower nor any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any
such provisions. Each Guaranteed Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees
of the Guaranteed Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
Section 8.02. Administrative
Agent’s Reliance, Limitation of Liability, Etc.
(a) Neither
the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such
party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Loan Documents
(x) with the consent of or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan
Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise
determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in
this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (including, for the avoidance
of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf.
or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of any Loan Party to
perform its obligations hereunder or thereunder.
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(b) The
Administrative Agent shall be deemed not to have knowledge of any (i) notice of any of the events or circumstances set forth or
described in Section 5.02 unless and until written notice thereof stating that it is a “notice under Section 5.02”
in respect of this Agreement and identifying the specific clause under said Section is given to the Administrative Agent by the
Borrower, or (ii) notice of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice
of Default” or a “notice of an Event of Default”) is given to the Administrative Agent by the Borrower, a Lender or
an Issuing Bank. Further, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the
sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document
or (v) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm
receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction
of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent.
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any Liabilities,
costs or expenses suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any determination of the Revolving
Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank, or any Dollar Equivalent.
(c) Without
limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory
note has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b),
(iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected
by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible
to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection
with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume
that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the
contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit
and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document
by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet
or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine
and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements
set forth in the Loan Documents for being the maker thereof).
Section 8.03. Posting
of Communications.
(a) The
Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and
the Issuing 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”).
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(b) Although
the Approved Electronic Platform and its 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 Lenders, each of the Issuing Banks and the Borrower 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 Lender that are added to the Approved Electronic Platform, and that there
may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower
hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of
such distribution.
(c) 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 THE ADMINISTRATIVE AGENT, THE SUSTAINABILITY
STRUCTURING AGENT, ANY DOCUMENTATION AGENT, THE ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE
PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK 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 ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET
OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively,
any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any
Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank
by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
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(d) Each
Lender and each Issuing 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 Lender for purposes of the Loan
Documents. Each Lender and Issuing 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 Lender’s or Issuing Bank’s (as applicable) email 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.
(e) Each
of the Lenders, each of the Issuing Banks and the Borrower 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.
(f) Nothing
herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication
pursuant to any Loan Document in any other manner specified in such Loan Document.
Section 8.04. The
Administrative Agent Individually. With respect to its Commitment, Loans, and Letters of Credit, the Person serving as the Administrative
Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and
to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Banks”, “Lenders”,
“Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative
Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as applicable. The Person serving
as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, any Loan Party, any
Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty
to account therefor to the Lenders or the Issuing Banks.
Section 8.05. Successor
Administrative Agent.
(a) The
Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Banks and
the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, (i) the Administrative
Agent may appoint one of its Affiliates as a successor Administrative Agent and (ii) if the Administrative Agent has not appointed
one of its Affiliates as a successor Administrative Agent pursuant to clause (i) above, the Required Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative
Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment
shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld and shall not be required
while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges
and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative
Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan
Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative
Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative
Agent under the Loan Documents.
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(b) Notwithstanding
paragraph (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted
such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative
Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date
of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents; and (ii) the Required Lenders shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required
to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative
Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or
made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of
the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.17(d) and
Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative
Agent and in respect of the matters referred to in the proviso under clause (a) above.
Section 8.06. Acknowledgements
of Lenders and Issuing Banks.
(a) Each
Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility,
(ii) in participating as a Lender, it is engaged in making, acquiring or holding commercial loans and in providing other facilities
set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of business, and not for the
purpose of investing in the general performance or operations of the Borrower, or for the purpose of purchasing, acquiring or holding
any other type of financial instrument such as a security (and each Lender and each Issuing Bank agrees not to assert a claim in contravention
of the foregoing, such as a claim under the federal or state securities laws), (iii) it has, independently and without reliance
upon the Administrative Agent, the Arranger, the Sustainability Structuring Agent, any Documentation Agent or any other Lender or Issuing
Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and
(iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities
set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making
its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring
or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arranger, any Documentation Agent, the Sustainability Structuring
Agent or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information
(which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and
their Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each
Lender and each Issuing Bank also acknowledges and agrees that (a) none of the Administrative Agent, the Arranger, any Documentation
Agent or the Sustainability Structuring Agent acting in such capacities have made any assurances as to (i) whether the Facility
meets such Lender’s or Issuing Bank’s criteria or expectations with regard to environmental impact and sustainability performance,
(ii) whether any characteristics of the Facility, including the characteristics of the relevant key performance indicators to which
the Borrower will link a potential margin step-up or step-down, including their environmental and sustainability criteria, meet any industry
standards or market expectations for sustainability-linked credit facilities or (iii) whether the CarbonCount® Level thresholds
or targets will be attainable or able to be maintained by the Borrower, and (b) each Lender and Issuing Bank has performed its own
independent investigation and analysis of the Facility and whether the Facility meets its own criteria or expectations with regard to
environmental impact and/or sustainability performance.
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(b) Each
Lender, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment
and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by
or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the effective date of any such Assignment and Assumption
or any other Loan Document pursuant to which it shall have become a Lender hereunder.
(c) (i) Each
Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its
sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment,
prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were
erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof),
such Lender shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative Agent, may,
in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as
to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative
Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such
amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable
law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, 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 Payments received,
including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative
Agent to any Lender under this Section 8.06(c) shall be conclusive, absent manifest error.
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(ii) Each
Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in
a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any
of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied
by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender
agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender
shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly,
but in no event later than one Business Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify
in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made
in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of
each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid
to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation from time to time in effect.
(iii) The
Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered
from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all
the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise
satisfy any Obligations owed by the Borrower or any other Loan Party, 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 Borrower or any other Loan Party for the purpose of making such erroneous Payment.
(iv) Each
party’s obligations under this Section 8.06(c) shall survive the resignation or replacement of the Administrative
Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment,
satisfaction or discharge of all Obligations under any Loan Document.
(d) The
Lenders and Issuing Banks acknowledge that there may be a constant flow of information (including information which may be subject to
confidentiality obligations in favor of the Loan Parties) between the Loan Parties and their Affiliates, on the one hand, and JPMorgan
Chase Bank, N.A. and its Affiliates, on the other hand. Without limiting the foregoing, the Loan Parties or their Affiliates may provide
information, including updates to previously provided information to Chase and/or its Affiliates acting in different capacities, including
as Lender, Issuing Bank, lead bank, arranger, sustainability structuring agent or potential securities investor, independent of
such entity’s role as administrative agent hereunder. The Lenders and Issuing Banks acknowledge that neither Chase nor its Affiliates
shall be under any obligation to provide any of the foregoing information to them. Notwithstanding anything to the contrary set forth
herein or in any other Loan Document, except for notices, reports and other documents expressly required to be furnished to the Lenders
and Issuing Banks by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide,
and shall not be liable for the failure to provide, any Lender or Issuing Bank with any credit or other information concerning the Loans,
the Lenders, the Issuing Banks, the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates that is communicated to, obtained by, or in the possession of, the Administrative
Agent or any of its Affiliates in any capacity, including any information obtained by the Administrative Agent in the course of communications
among the Administrative Agent and any Loan Party, any Affiliate thereof or any other Person. Notwithstanding the foregoing, any such
information may (but shall not be required to) be shared by the Administrative Agent with one or more Lenders or Issuing Banks, or any
formal or informal committee or ad hoc group of such Lenders and Issuing Banks, including at the direction of a Loan Party.
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Section 8.07. Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent, the Sustainability Structuring Agent, any Documentation Agent and the Arranger and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be
true:
(i) such
Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection
with the Loans, the Letters of Credit or the Commitments,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38
(a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14),
(B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in,
administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the
requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
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(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such
Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a),
such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,
from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of,
the Administrative Agent, the Sustainability Structuring Agent, any Documentation Agent and the Arranger and their respective Affiliates,
and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent,
the Sustainability Structuring Agent, any Documentation Agent or the Arranger or any of their respective Affiliates is a fiduciary with
respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent
under this Agreement, any Loan Document or any documents related to hereto or thereto).
(c) The
Administrative Agent, the Sustainability Structuring Agent, the Documentation Agents and the Arranger hereby informs the Lenders that
each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions
contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an
Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments,
this Agreement and any other Loan Documents (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments
for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or
(iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise,
including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees,
administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away
or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other
early termination fees or fees similar to the foregoing.
Section 8.08. Sustainability
Structuring Agent.
(a) Sustainability
Matters. Each party hereto hereby agrees that neither the Administrative Agent nor the Sustainability Structuring Agent shall have
(x) any duty to ascertain, inquire into or otherwise independently verify any Sustainability Related Information or any other information
or materials provided by the Borrower and used in connection with the sustainability provisions of the credit facility described in this
Agreement, including with respect to the CarbonCount® Level nor (y) any responsibility (or liability in respect of) the completeness
or accuracy of such information. Each party hereto hereby agrees that none of the Administrative Agent, the Sustainability Structuring
Agent or the Arranger shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any
calculation by the Borrower of any CarbonCount® level, any Drawn Pricing Adjustment or any Undrawn Pricing Adjustment as a result
of any such calculation (or any of the data or computations that are part of or related to any such calculation) as set forth in the
Borrower’s Pricing Certificate delivered pursuant to Section 5.01(c) or notice as to a Sustainability Pricing
Inaccuracy (and the Administrative Agent and the Sustainability Structuring Agent may rely conclusively on any such certificate or notice,
without further inquiry).
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(b) No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arranger, any Documentation Agent, the Administrative
Agent nor the Sustainability Structuring Agent listed on the cover page hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender
or an Issuing Bank hereunder.
Section 8.09. Borrower
Communications. (a) The Administrative Agent, the Lenders and the Issuing Banks agree that the Borrower may, but shall not be
obligated to, make the Borrower Communications to the Administrative Agent through an electronic platform chosen by the Administrative
Agent to be its electronic transmission system (the “Approved Borrower Portal”).
(b) Although
the Approved Borrower Portal and its 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),
each of the Lenders, each of the Issuing Banks and the Borrower 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 the Borrower that are added to the Approved Borrower Portal, and that there may be confidentiality and other risks associated
with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower hereby approves distribution of Borrower Communications
through the Approved Borrower Portal and understands and assumes the risks of such distribution.
(c) THE
APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER COMMUNICATION, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED BORROWER PORTAL AND THE BORROWER 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 BORROWER
COMMUNICATIONS OR THE APPROVED BORROWER PORTAL. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, THE ARRANGER, THE SUSTAINABILITY STRUCTURING
AGENT, ANY DOCUMENTATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE
ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK 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 BORROWER'S TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED BORROWER PORTAL.
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“Borrower Communications”
means, collectively, any Borrowing Request, Interest Election Request, notice of prepayment, notice requesting the issuance, amendment
or extension of a Letter of Credit or other notice, demand, communication, information, document or other material provided by or on
behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Borrower
to the Administrative Agent through an Approved Borrower Portal.
(d) Each
of the Lenders, each of the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Borrower Communications on the Approved Borrower Portal in accordance with the Administrative
Agent’s generally applicable document retention procedures and policies.
(e) Nothing
herein shall prejudice the right of the Borrower to give any notice or other communication pursuant to any Loan Document in any other
manner specified in such Loan Document.
Article 9
Miscellaneous
Section 9.01. Notices.
(a) Except
in the case of notices and other communications expressly permitted to be given by telephone or Electronic Systems (and subject in each
case to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by fax or e-mail, as follows:
(i) if
to any Loan Party, to it in care of the Borrower at:
HA Sustainable Infrastructure
Capital, Inc.
One Park Place, Suite 200
Annapolis, MD 21401
Attention: Legal Department
Fax No: (410) 571-6199
E-mail: Legaldepartment@hasi.com; finance@hasi.com
(ii) if
to the Administrative Agent from the Borrower, to JPMorgan Chase Bank, N.A., at the address separately provided to the Borrower;
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(iii) if
to the Administrative Agent from the Lenders, to JPMorgan Chase Bank, N.A. at:
JPMorgan Chase Bank, N.A.
131 S Dearborn St, Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing
Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax
Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Virtual
Data rooms:
Email: agency.dataroom@jpmorgan.com
(iv) if
to Chase in its capacity as an Issuing Bank, to JPMorgan Chase Bank, N.A. at the address separately provided to the Borrower;
(v) if
to any other Lender or Issuing Bank, to it at its address or fax number set forth in its Administrative Questionnaire.
All such notices and other communications (i) sent
by hand or overnight courier service, or mailed by certified or registered mail shall be deemed to have been given when received, (ii) sent
by fax shall be deemed to have been given when sent, provided that if not given during normal business hours for the recipient,
such notice or communication shall be deemed to have been given at the opening of business on the next Business Day of the recipient,
or (iii) delivered through Electronic Systems, Approved Electronic Platforms or Approved Borrower Portals, as applicable, to the
extent provided in paragraph (b) below shall be effective as provided in such paragraph.
(b) Notices
and other communications to the Borrower, any Loan Party, the Administrative Agent, the Lenders and the Issuing Banks hereunder may be
delivered or furnished by using Electronic Systems or Approved Electronic Platforms or Approved Borrower Portals, as applicable, in each
case, pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant
to Article 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent
and the Borrower (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder
by using Electronic Systems or Approved Electronic Platforms, as applicable, pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise proscribes,
all such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement), provided that if given outside of normal business hours of the recipient, such notice
or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) posted
to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address
as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website
address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail or other communication
is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day of the recipient.
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(c) Any
party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the
other parties hereto.
Section 9.02. Waivers;
Amendments.
(a) No
failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under any other Loan
Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted
by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may
have had notice or knowledge of such Default at the time.
(b) Subject
to Section 2.14(b) and (c), to Section 2.22 with respect to the extension of the Revolving Credit
Maturity Date and to Section 9.02(d) below, neither this Agreement nor any other Loan Document nor any provision hereof
or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or (ii) in the case of any other Loan Document, pursuant to an agreement
or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the
consent of the Required Lenders; provided that no such agreement shall (A) increase the Commitment of any Lender without
the written consent of such Lender (including any such Lender that is a Defaulting Lender), (B) reduce or forgive the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon (including as a result of modifications to the Drawn Pricing
Adjustment or the Undrawn Pricing Adjustment, as applicable (including, in each case and without limitation, any modifications to the
component definitions thereof or the methodology related thereto, and any such amendments made in connection with (and to reflect the
occurrence of) the consummation of any Sustainability Recalculation Event)), or reduce or forgive any interest or fees payable hereunder,
without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided
that any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in
this Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (B), (C) postpone
any scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any date for the payment of any interest, fees
or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly
affected thereby, (D) change Section 2.09(c) or Section 2.18(b) or (d) in a manner
that would alter the ratable reduction of Commitments or the manner in which payments are shared, without the written consent of each
Lender (other than any Defaulting Lender), (E) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or
modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (other
than any Defaulting Lender) directly affected thereby, (F) change the definition of “Applicable Percentage” without
the written consent of each Lender directly affected thereby, (G) change Section 2.20, without the consent of each Lender
(other than any Defaulting Lender) or (H) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise
permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender); provided,
further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, or the
Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank, as the case may be (it being
understood that any amendment to Section 2.20 shall require the consent of the Administrative Agent and the Issuing Bank);
provided, further, that no such agreement shall amend or modify the provisions of Section 2.06 without the
prior written consent of the Administrative Agent and the Issuing Banks. The Administrative Agent may also amend the Commitment Schedule
to reflect assignments entered into pursuant to Section 9.04.
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(c) If,
in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender
affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained
(any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”),
then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently
with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent
and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of
the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04,
and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest,
fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an
amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16
had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees
that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower,
the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference
pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and the Lender
required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have
consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties
to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable
Lender, provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
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(d) Notwithstanding
anything to the contrary herein the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this
Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
Section 9.03. Expenses;
Limitation of Liability; Indemnity; Etc.
(a) Expenses.
The Borrower shall pay all (i) reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, disbursements and other charges of one firm of primary counsel to the Administrative Agent, the Sustainability
Structuring Agent, the Documentation Agents and the Arranger and, if reasonably necessary, a single local counsel in each appropriate
jurisdiction (which may include a single special counsel acting in multiple jurisdictions)), in connection with the credit facilities
provided for herein, the syndication and distribution (including, without limitation, via the internet or through an Electronic System
or Approved Electronic Platform) thereof, the preparation, execution, delivery, and administration of the Loan Documents and any amendments,
modifications or waivers of the provisions of the Loan Documents, (ii) reasonable and documented out-of-pocket expenses incurred
by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, (including the
reasonable fees, disbursements and other charges of one firm of primary counsel to the Administrative Agent, the Issuing Banks and the
Lenders, and, if reasonably necessary, a single local counsel in each appropriate jurisdiction (which may include, a single special counsel
acting in multiple jurisdictions) (and, solely in the case of any actual or perceived conflict of interest, one additional counsel and,
to the extent reasonably necessary, one local counsel in each appropriate jurisdiction to each group of similarly situated persons actually
affected by such conflict taken as a whole)), in connection with the enforcement, collection or protection of its rights in connection
with the Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) Limitation
of Liability. To the extent permitted by applicable law (i) neither the Borrower nor any other Loan Party shall assert, and
the Borrower and each Loan Party hereby waives, any claim against the Administrative Agent, the Sustainability Structuring Agent, any
Documentation Agent, the Arranger, any Issuing Bank and any Lender, and any Related Party of any of the foregoing Persons (each such
Person being called a “Lender-Related Person”) for any Liabilities arising from the use by others of information or
other materials (including, without limitation, any personal data) obtained through telecommunications, electronic or other information
transmission systems (including the Internet, any Approved Electronic Platform and any Approved Borrower Portal), and (ii) no party
hereto shall assert, and each such party hereby waives, any Liabilities against any other party hereto, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this Section 9.03(b) shall
relieve the Borrower or any other Loan Party of any obligation it may have to indemnify an Indemnitee, as provided in Section 9.03(c),
against any special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
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(c) Indemnity.
The Loan Parties, jointly and severally, shall indemnify the Administrative Agent, the Sustainability Structuring Agent, each Documentation
Agent, the Arranger, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any Liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated
thereby, (ii) the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (iii) any Loan or Letter of Credit or the use of the proceeds therefrom (including
any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iv) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way
to a Loan Party or a Subsidiary, (v) the failure of a Loan Party to deliver to the Administrative Agent the required receipts or
other required documentary evidence with respect to a payment made by such Loan Party for Taxes pursuant to Section 2.17,
or (vi) any actual or prospective Proceeding relating to any of the foregoing, whether or not such Proceeding is brought by any
Loan Party or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such Liabilities or related expenses are determined by a court of competent jurisdiction
by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.03(c) shall
not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim with the exception
of clause (v) above.
(d) Lender
Reimbursement. Each Lender severally agrees to pay any amount required to be paid by any Loan Party under paragraphs (a), (b) or
(c) of this Section 9.03 to the Administrative Agent and each Issuing Bank, and each Related Party of any of the foregoing
Persons (each, an “Agent-Related Person”) (to the extent not reimbursed by the Loan Parties and without limiting the
obligation of any Loan Party to do so), ratably according to their respective Applicable Percentage in effect on the date on which such
payment is sought under this Section (or, if such payment is sought after the date upon which the Commitments shall have terminated
and the Loans shall have been Paid in Full, ratably in accordance with such Applicable Percentage immediately prior to such date), and
agrees to indemnify and hold each Agent-Related person harmless from and against any and all Liabilities and related expenses, including
the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be
imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by such Agent-Related Person under or in connection with any of the foregoing; provided
that the unreimbursed expense or Liability or related expense, as the case may be, was incurred by or asserted against such Agent-Related
Person in its capacity as such; provided, further, that no Lender shall be liable for the payment of any portion of such
Liabilities, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction
to have resulted primarily from such Agent-Related Person’s gross negligence or willful misconduct. The agreements in this Section shall
survive the termination of this Agreement and the Payment in Full of the Guaranteed Obligations.
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(e) Payments.
All amounts due under this Section 9.03 shall be payable promptly after written demand therefor.
Section 9.04. 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 permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Loan
Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by a Loan Party without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible
Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, participations
in Letters of Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld
or delayed) of:
(A) the
Borrower, provided that, the Borrower shall be deemed to have consented to an assignment of all or a portion of the Commitments
and the Loans unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days
after having received notice thereof and provided, further, that no consent of the Borrower shall be required for an assignment
to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the
Administrative Agent; and
(C) the
Issuing Bank; provided that no consent of an Issuing Bank shall be required if (x) an Event of Default occurs with respect
to either Borrower under Sections 7(h) or (i) and (y) such Issuing Bank has no outstanding Letters of Credit at that time.
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(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender, an Affiliate of a Lender, or an Approved Fund, or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent; provided
that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(B) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to
the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform
as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing and
recordation fee of $3,500; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about
the Borrower, the other Loan Parties and their Related Parties or their respective securities) will be made available and who may receive
such information in accordance with the assignee’s compliance procedures and applicable laws, including federal and state securities
laws.
For the purposes of this
Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the following
meanings:
“Approved Fund” means
any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Ineligible Institution”
means (a) a natural person, (b) a Defaulting Lender or its Lender Parent, (c) a holding company, investment vehicle or
trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (d) a Loan Party or
a Subsidiary or other Affiliate of a Loan Party.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16,
2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.
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(iv) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
made available at the Administrative Agent’s New York, New York offices or otherwise on an Approved Electronic Platform for inspection
by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon
its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the
extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as
to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative
Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that
if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to 2.06(d) or
(e), 2.07(b), 2.18(d) or 9.03(d), the Administrative Agent shall have no obligation to accept such Assignment
and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together
with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) Any
Lender may, without the consent of, or notice to, the Borrower, the Administrative Agent or the Issuing Bank, sell participations to
one or more banks or other entities (a “Participant”) other than an Ineligible Institution in all or a portion of
such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or Letters of Credit
and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and/or obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including
the requirements under Sections 2.17(f) and (g) (it being understood that the documentation required under Section 2.17(f) shall
be delivered to the participating Lender and the information and documentation required under Section 2.17(g) will be
delivered to the Borrower and the Administrative Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions
of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall
not be entitled to receive any greater payment under Sections 2.15 or 2.17 with respect to any participation than
its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results
from a Change in Law that occurs after the Participant acquired the applicable participation.
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Each Lender that sells a
participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate
the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.18(d) as though it were a Lender. Each Lender that sells a participation shall, acting solely
for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement
or any other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to
a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under this Agreement or any other
Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of
Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining
a Participant Register.
(d) Any
Lender, without the consent of, or notice to, the Borrower, the Administrative Agent or any other person, may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
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Section 9.05. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance
of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued
interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16,
2.17 and 9.03 and Article 8 shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.
Section 9.06. Counterparts;
Integration; Effectiveness; Electronic Execution.
(a) This
Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
(b) Delivery
of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any
document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to
Section 9.01), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document
and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature
transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall
be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as
applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like
import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic
Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the
case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or
format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting
the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent
and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any
other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic
Signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed
by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each Loan Party hereby (A) agrees
that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy
proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and the Loan Parties, Electronic Signatures transmitted
by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any
electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity
and enforceability as any paper original, (B) the Administrative Agent and each of the Lenders may, at its option, create one or
more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any
format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document
(and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and
enforceability as a paper record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability
of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement,
such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and
(D) waives any claim against any Lender-Related Person for any Liabilities arising solely from the Administrative Agent’s
and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic
means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of
the Borrower and/or any Loan Party to use any available security measures in connection with the execution, delivery or transmission
of any Electronic Signature.
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Section 9.07. Severability.
Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
Section 9.08. Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank, and each of their respective
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 Lender, such Issuing Bank or any such Affiliate, to or for the credit or the account of any Loan Party against any and all of the
Guaranteed Obligations owing to such Lender or such Issuing Bank or their respective Affiliates, irrespective of whether or not such
Lender, Issuing Bank or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations
of the Loan Parties may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or such Issuing Bank different
from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative
Agent for further application in accordance with the provisions of Section 2.20 and, pending such payment, shall be segregated
by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks,
and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the Guaranteed Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The applicable Lender,
the Issuing Bank or such Affiliate shall notify the Borrower and the Administrative Agent of such setoff or application; provided
that the failure to give such notice shall not affect the validity of such setoff or application under this Section. The rights of each
Lender, each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have.
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Section 9.09. Governing
Law; Jurisdiction; Consent to Service of Process.
(a) The
Loan Documents (other than those containing a contrary express choice of law provision) shall be governed by and construed in accordance
with the internal laws of the State of New York, but giving effect to federal laws applicable to national banks.
(b) Each
of the Lenders and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law provisions
of any applicable Loan Document, any claims brought against the Administrative Agent or any of its Related Parties relating to this Agreement,
any other Loan Document, or the consummation or administration of the transactions contemplated hereby or thereby shall be construed
in accordance with and governed by the law of the State of New York.
(c) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, 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, in any action or proceeding (whether in tort, contract, law or equity) arising out of or relating to this Agreement or any other
Loan Documents, the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such 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 of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(d) Each
Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
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(e) Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner
permitted by law.
Section 9.10. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
Section 9.11. Headings.
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.
Section 9.12. Confidentiality.
Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by any Requirement of Law or by any subpoena or similar legal process, (d) to any other party to
this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action
or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this Section, to (x) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (y) credit insurance providers
requiring access to such information in connection with credit insurance issued for the benefit of such Lender or (z) any actual
or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Loan Parties and their obligations,
(g) with the consent of the Borrower, (h) on a confidential basis to service providers providing administrative and ministerial
services solely in connection with the administration of the Loan Documents and the facilities (e.g., identities of parties, maturity
dates, interest rates, etc.), (i) on a confidential basis to (1) any rating agency in connection with rating the Borrower
or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection
with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, or (j) to
the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than the Borrower.
For the purposes of this Section, “Information” means all information received from the Borrower relating to the Borrower
or its business, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis prior to disclosure by the Borrower and other than information pertaining to this Agreement provided by arrangers to data service
providers, including league table providers, that serve the lending industry; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. Notwithstanding anything to the contrary herein, the parties hereto (and each of their employees,
representatives and other agents) may disclose to any Persons, without limitation of any kind, the tax treatment and tax structure of
the transaction contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided
to either party relating to such tax treatment and tax structure; provided that this sentence does not authorize any party hereto
(or any of its employees, representatives or other agents) to disclose any information that is not necessary to understanding the tax
treatment and tax structure of the transaction contemplated by this Agreement or that does not relate directly to the tax treatment and
tax structure of the transaction contemplated by this Agreement (including, if applicable, the identity of the parties hereto and any
information that could reasonably lead another to determine the identity of the parties hereto), or to the extent it is reasonably necessary
to keep any such information confidential in order to comply with any federal or state securities law.
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For the avoidance of doubt, nothing in this Section 9.12
shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision
to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the
extent that any such prohibition on disclosure set forth in this Section 9.12 shall be prohibited by the laws or regulations
applicable to such Regulatory Authority.
Section 9.13. Several
Obligations; Nonreliance; Violation of Law. The respective obligations of the Lenders hereunder are several and not joint and the
failure of any Lender to make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U
of the Federal Reserve Board) for the repayment of the Borrowings provided for herein. Anything contained in this Agreement to the contrary
notwithstanding, neither the Issuing Bank nor any Lender shall be obligated to extend credit to the Borrower in violation of any Requirement
of Law.
Section 9.14. USA
PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act or the Beneficial Ownership Regulation hereby
notifies each Loan Party that pursuant to the requirements of the USA PATRIOT Act and/or the Beneficial Ownership Regulation, it is required
to obtain, verify and record information that identifies such Loan Party, which information includes the name and address of such Loan
Party and other information that will allow such Lender to identify such Loan Party in accordance with the USA PATRIOT Act and/or the
Beneficial Ownership Regulation.
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Section 9.15. Disclosure.
Each Loan Party, each Lender and the Issuing Bank hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other relationships with, any of the Loan Parties and their respective
Affiliates.
Section 9.16. Material
Non-Public Information.
(a) EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(b) ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR
IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION
ABOUT THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER
AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION
THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
Section 9.17. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Overnight Rate to the date of repayment,
shall have been received by such Lender.
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Section 9.18. No
Fiduciary Duty, etc.
(a) Each
Loan Party acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that neither any Credit Party nor the Sustainability
Structuring Agent will have any obligations except those obligations expressly set forth herein and in the other Loan Documents and each
Credit Party and the Sustainability Structuring Agent is acting solely in the capacity of an arm’s length contractual counterparty
to the Loan Parties and their respective Subsidiaries with respect to the Loan Documents and the transactions contemplated herein and
therein and not as a financial advisor or a fiduciary to, or an agent of, the Borrower any of its Subsidiaries or any other person. Each
Loan Party agrees that it will not assert any claim against any Credit Party or the Sustainability Structuring Agent based on an alleged
breach of fiduciary duty by such Credit Party or the Sustainability Structuring Agent, as applicable, in connection with this Agreement
and the transactions contemplated hereby. Additionally, each Loan Party acknowledges and agrees that neither any Credit Party nor the
Sustainability Structuring Agent is advising the Loan Parties as to any legal, tax, investment, accounting, regulatory or any other matters
in any jurisdiction (including, without limitation, the potential application of the “contingent payment debt instrument”
tax rules). The Loan Parties shall consult with their own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated herein or in the other Loan Documents, and the Credit Parties
and the Sustainability Structuring Agent shall have no responsibility or liability to any Loan Party with respect thereto.
(b) Each
Loan Party further acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party, together
with its Affiliates, in addition to providing or participating in commercial lending facilities such as that provided hereunder, is a
full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking
and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financial
services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and
financial instruments (including bank loans and other obligations) of the Borrower and other companies with which the Borrower may have
commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of
its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by
the holder of the rights, in its sole discretion.
(c) In
addition, each Loan Party acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party and
its Affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies
in respect of which the Loan Parties may have conflicting interests regarding the transactions described herein and otherwise. No Credit
Party will use confidential information obtained from any Loan Party by virtue of the transactions contemplated by the Loan Documents
or its other relationships with the Loan Parties in connection with the performance by such Credit Party of services for other companies,
and no Credit Party will furnish any such information to other companies. Each Loan Party also acknowledges that no Credit Party has
any obligation to use in connection with the transactions contemplated by the Loan Documents, or to furnish to any Loan Party, confidential
information obtained from other companies.
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Section 9.19. [Reserved].
Section 9.20. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution
Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent 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 Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
Section 9.21. Acknowledgement
Regarding Any Supported QFCs.
(a) To
the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument
that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal
Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the
laws of the State of New York and/or of the United States or any other state of the United States):
(b) In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S.
Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)
were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of
a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that
might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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Section 9.22. [Reserved].
Section 9.23. Sustainability
Adjustments. If (i)(A) any Lender becomes aware of any material inaccuracy in the CarbonCount® level as reported in the
Borrower’s Pricing Certificate delivered pursuant to Section 5.01(c) (any such material inaccuracy, a “Sustainability
Pricing Inaccuracy”) and such Lender delivers, not later than ten (10) Business Days after obtaining knowledge thereof,
a written notice to the Administrative Agent describing such Sustainability Pricing Inaccuracy in reasonable detail (which description
shall be shared with each Lender and the Borrower), or (B) the Borrower becomes aware of a Sustainability Pricing Inaccuracy and
the Borrower and the Administrative Agent shall mutually agree that there was a Sustainability Pricing Inaccuracy at the time of delivery
of the Borrower’s Pricing Certificate delivered pursuant to Section 5.01(c), and (ii) a proper calculation of
the CarbonCount® level would have resulted in an increase in the Applicable Margin or Commitment Fee Rate for any period, the Borrower
shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders and Issuing Banks promptly on demand
by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code (or any comparable event under non-U.S. Debtor Relief Laws), automatically and without further action by the
Administrative Agent, any Lender or any Issuing Bank), but in any event within ten (10) Business Days after the Borrower has received
written notice of (in the case of clause (i)(A) above), or has agreed in writing that there was (in the case of clause (i)(B) above),
a Sustainability Pricing Inaccuracy, an amount equal to the excess of (1) the amount of interest and fees that should have been
paid for such period over (2) the amount of interest and fees actually paid for such period.
It is understood and agreed
that any Sustainability Pricing Inaccuracy shall not constitute a Default or Event of Default; provided, that, the Borrower
complies with the terms of this Section 9.23 and Section 5.02(e) with respect to such Sustainability Pricing
Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed
entry of an order for relief with respect to the Borrower under the Bankruptcy Code (or any comparable event under non-U.S. Debtor Relief
Laws), (a) any additional amounts required to be paid pursuant to the immediately preceding paragraph shall not be due and payable
until the earlier to occur of (i) written demand for such payment by the Administrative Agent in accordance with such paragraph
or (ii) ten (10) Business Days after the Borrower has received written notice of (in the case of clause (i)(A) above),
or has agreed in writing that there was (in the case of clause (i)(B) above), a Sustainability Pricing Inaccuracy (such date, the
“Inaccuracy Payment Date”), (b) any nonpayment of such additional amounts prior to the Inaccuracy Payment Date
shall not constitute a Default (whether retroactively or otherwise) and (c) none of such additional amounts shall be deemed overdue
prior to the Inaccuracy Payment Date or shall accrue interest at the Default Rate prior to the Inaccuracy Payment Date.
147
Section 9.24. Judgment
Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures
the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder
or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other
than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may
be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Administrative Agent or any Lender from the Borrower in the Agreement Currency,
the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender,
as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent or any Lender in such Currency, the Administrative Agent or such Lender, as the case may be, agrees to return
the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable law).
Article 10
Loan Guaranty
Section 10.01. Guaranty.
Each Loan Guarantor hereby agrees that it is jointly and severally liable for, and, as a primary obligor and not merely as surety, absolutely
and unconditionally and irrevocably guarantees to the Guaranteed Parties, the prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of the Obligations and all costs and expenses including, without limitation,
all court costs and reasonable attorneys’ and paralegals’ fees and expenses paid or incurred by the Administrative Agent,
the Issuing Bank and the Lenders in endeavoring to collect all or any part of the foregoing from, or in prosecuting any action against,
the Borrower, any Loan Guarantor or any other guarantor of all or any part of the foregoing (collectively the “Guaranteed Obligations”).
Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or
further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this
Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any Lender that extended
any portion of the Guaranteed Obligations.
Section 10.02. Guaranty
of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to require the
Administrative Agent, the Issuing Bank or any Lender to sue the Borrower, or any Loan Guarantor, or any other guarantor of, or any other
Person obligated for all or any part of the Guaranteed Obligations (each, an “Obligated Party”), or otherwise to enforce
its payment against any collateral securing all or any part of the Guaranteed Obligations.
148
Section 10.03. No
Discharge or Diminishment of Loan Guaranty.
(a) Except
as otherwise provided for herein, the obligations of each Loan Guarantor hereunder are unconditional and absolute and not subject to
any reduction, limitation, impairment or termination for any reason (other than the Payment in Full of all the Guaranteed Obligations),
including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the
Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of
the Borrower or any other Obligated Party liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy, reorganization
or other similar proceeding affecting any Obligated Party, or their assets or any resulting release or discharge of any obligation of
any Obligated Party; or (iv) the existence of any claim, setoff or other rights which any Loan Guarantor may have at any time against
any Obligated Party, the Administrative Agent, the Issuing Bank, any Lender, or any other Person, whether in connection herewith or in
any unrelated transactions.
(b) The
obligations of each Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision of applicable
law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.
(c) Further,
the obligations of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the
Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any remedy with respect to all or any
part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating
to the Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations
of the Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Obligated Party liable for any of the
Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent, the Issuing Bank or any Lender with respect
to any collateral securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise, in
the payment or performance of any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any
manner or to any extent vary the risk of such Loan Guarantor or that would otherwise operate as a discharge of any Loan Guarantor as
a matter of law or equity (other than the Payment in Full of all the Guaranteed Obligations).
Section 10.04. Defenses
Waived. To the fullest extent permitted by applicable law, each Loan Guarantor hereby waives any defense based on or arising out
of any defense of the Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed Obligations from any
cause, or the cessation from any cause of the liability of the Borrower, any Loan Guarantor or any other Obligated Party, other than
the Payment in Full of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Loan Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person against any Obligated Party, or any other Person. Each
Loan Guarantor confirms that it is not a surety under any state law and shall not raise any such law as a defense to its obligations
hereunder. The Administrative Agent may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with any Obligated Party or exercise any other right or remedy available to it against any Obligated Party, without affecting
or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty, except to the extent the Guaranteed Obligations
have been Paid in Full. To the fullest extent permitted by applicable law, each Loan Guarantor waives any defense arising out of any
such election even though that election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Loan Guarantor against any Obligated Party.
149
Section 10.05. Rights
of Subrogation. No Loan Guarantor will assert any right, claim or cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against any Obligated Party, or any collateral, until the Loan Parties and the Loan Guarantors
have fully performed all their obligations to the Administrative Agent, the Issuing Bank and the Lenders.
Section 10.06. Reinstatement;
Stay of Acceleration. If at any time any payment of any portion of the Guaranteed Obligations (including a payment effected through
exercise of a right of setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy, or reorganization
of the Borrower or otherwise (including pursuant to any settlement entered into by a Guaranteed Party in its discretion), each Loan Guarantor’s
obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been
made and whether or not the Administrative Agent, the Issuing Bank and the Lenders are in possession of this Loan Guaranty. If acceleration
of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower,
all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless
be payable by the Loan Guarantors forthwith on demand by the Administrative Agent.
Section 10.07. Information.
Each Loan Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent
of the risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the Administrative Agent,
the Issuing Bank or any Lender shall have any duty to advise any Loan Guarantor of information known to it regarding those circumstances
or risks.
Section 10.08. Release
of a Loan Guarantor. A Loan Guarantor's Guarantee of the Guaranteed Obligations will automatically terminate and be released, all
other obligations of such Loan Guarantor under this Loan Guaranty will automatically terminate and such Loan Guarantor will automatically
be released from all of its obligations under its Guarantee of the Guaranteed Obligations and this Agreement:
(a) upon
the sale or other disposition of Equity Interests of such Loan Guarantor, or any merger or consolidation of such Loan Guarantor with
or into any Person, which results in such Loan Guarantor no longer being a Subsidiary of the Borrower or the sale or disposition of all
or substantially all the assets of such Loan Guarantor (other than to the Borrower or a Domestic Subsidiary of the Borrower that is not
an Excluded Subsidiary or a Securitization Entity) so long as such sale, disposition, merger or consolidation is permitted (or not prohibited)
by this Agreement;
150
(b) upon
delivery by the Borrower to the Administrative Agent of an officers’ certificate to the effect that such Loan Guarantor is an Excluded
Subsidiary, a Securitization Entity or a Foreign Subsidiary (it being understood that the Borrower may deliver such officers’ certificate
in respect of any Domestic Subsidiary of the Borrower that is a Loan Guarantor if such Domestic Subsidiary of the Borrower subsequently
becomes an Excluded Subsidiary, a Securitization Entity or a Foreign Subsidiary);
(c) if
such Loan Guarantor is dissolved or liquidated and such dissolution or liquidation is not an Event of Default;
(d) upon
the merger of such Loan Guarantor into, or the consolidation of such Loan Guarantor with, a Subsidiary of the Borrower if the surviving
or resulting entity is an Excluded Subsidiary, Securitization Entity or Foreign Subsidiary;
(e) if
such Loan Guarantor ceases or substantially contemporaneously ceases to (i) guarantee any Corporate Indebtedness (other than the
Obligations) and (ii) have any outstanding Corporate Indebtedness issued by such Loan Guarantor, in each case, in an aggregate principal
amount in excess of $2,500,000; or
(f) if
such Loan Guarantor shall cease to be a Subsidiary of the Borrower.
Section 10.09. Maximum
Liability. Notwithstanding any other provision of this Loan Guaranty, the amount guaranteed by each Loan Guarantor hereunder shall
be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548
of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act, Uniform Voidable
Transactions Act or similar statute or common law. In determining the limitations, if any, on the amount of any Loan Guarantor’s
obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification
or contribution which such Loan Guarantor may have under this Loan Guaranty, any other agreement or applicable law shall be taken into
account.
Section 10.10. Contribution.
(a) To
the extent that any Loan Guarantor shall make a payment under this Loan Guaranty (a “Guarantor Payment”) which, taking
into account all other Guarantor Payments then previously or concurrently made by any other Loan Guarantor, exceeds the amount which
otherwise would have been paid by or attributable to such Loan Guarantor if each Loan Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Loan Guarantor’s “Allocable Amount” (as defined
below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Loan Guarantors
as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the
Guarantor Payment, the Payment in Full of the Guaranteed Obligations and the termination of this Agreement, such Loan Guarantor shall
be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Loan Guarantor for the amount
of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
151
(b) As
of any date of determination, the “Allocable Amount” of any Loan Guarantor shall be equal to the excess of the fair saleable
value of the property of such Loan Guarantor over the total liabilities of such Loan Guarantor (including the maximum amount reasonably
expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Loan Guarantor that
is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Loan Guarantors
as of such date in a manner to maximize the amount of such contributions.
(c) This
Section 10.10 is intended only to define the relative rights of the Loan Guarantors, and nothing set forth in this Section 10.10
is intended to or shall impair the obligations of the Loan Guarantors, jointly and severally, to pay any amounts as and when the same
shall become due and payable in accordance with the terms of this Loan Guaranty.
(d) The
parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Loan Guarantor
or Loan Guarantors to which such contribution and indemnification is owing.
(e) The
rights of the indemnifying Loan Guarantors against other Loan Guarantors under this Section 10.10 shall be exercisable upon
the Payment in Full of the Guaranteed Obligations and the termination of this Agreement.
Section 10.11. Liability
Cumulative. The liability of each Loan Party as a Loan Guarantor under this Article 10 is in addition to and shall be
cumulative with all liabilities of each Loan Party to the Administrative Agent, the Issuing Bank and the Lenders under this Agreement
and the other Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other Loan Parties,
without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides
to the contrary.
[SIGNATURE PAGES FOLLOW]
152
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first
above written.
HA SUSTAINABLE INFRASTRUCTURE CAPITAL,
INC., as Borrower
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Senior Managing Director, Chief Financial Officer and Treasurer
HANNON ARMSTRONG SUSTAINABLE INFRASTRUCTURE,
L.P., as an Effective Date Guarantor
By:
HA Sustainable Infrastructure Capital, Inc., its general partner
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Senior Managing Director, Chief Financial Officer and Treasurer
HAT HOLDINGS I LLC, as an Effective
Date Guarantor
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Chief Financial Officer
HAT HOLDINGS II LLC, as an Effective
Date Guarantor
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Chief Financial Officer
[Signature Page to RCF Credit
Agreement]
HANNON ARMSTRONG CAPITAL, LLC, as
an Effective Date Guarantor
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Senior Managing Director, Chief Financial Officer and Treasurer
HAC HOLDINGS I LLC, as an Effective
Date Guarantor
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Senior Managing Director, Chief Financial Officer and Treasurer
HAC HOLDINGS II LLC, as an Effective
Date Guarantor
By:
/s/ Charles W. Melko
Name:
Charles W. Melko
Title:
Senior Managing Director, Chief Financial Officer and Treasurer
[Signature Page to RCF Credit
Agreement]
JPMORGAN CHASE BANK, N.A., as Administrative
Agent, Lender and Issuing Bank
By:
/s/ Andrew Stollfuss
Name:
Andrew Stollfuss
Title:
Managing Director
CITIBANK, N.A., as a Lender
By:
/s/ Agha Murtaza
Name:
Agha Murtaza
Title:
Vice President / Managing Director
COÖPERATIEVE RABOBANK U.A., New York Branch, as a Lender
By:
/s/ Edward Santos
Name:
Edward Santos
Title:
Managing Director
By:
/s/ Guus Hovius
Name:
Guus Hovius
Title:
Executive Director
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
By:
/s/ Jill Wong
Name:
Jill Wong
Title:
Director
By:
/s/ Felix Vasquez
Name:
Felix Vasquez
Title:
Director
ING CAPITAL LLC, as a Lender
By:
/s/ Scott Hancock
Name:
Scott Hancock
Title:
Managing Director
By:
/s/ Filipe Barreto
Name:
Filipe Barreto
Title:
Director
MIZUHO BANK, LTD., as a Lender
By:
/s/ Edward Sacks
Name:
Edward Sacks
Title:
Managing Director
[Signature Page to RCF Credit
Agreement]
MORGAN STANLEY BANK, N.A., as a Lender
By:
/s/ Michael King
Name:
Michael King
Title:
Authorized Signatory
ROYAL BANK OF CANADA, as a Lender
By:
/s/ Saad Kahn
Name:
Saad Kahn
Title:
Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION, as a Lender
By:
/s/ Irlen Mak
Name:
Irlen Mak
Title:
Executive Director
TRUIST BANK, as a Lender
By:
/s/ Richard W. Jantzen, III
Name:
Richard W. Jantzen, III
Title:
Director
BANK OF MONTREAL, as a Lender
By:
/s/ Alex Wu
Name:
Alex Wu
Title:
Director
GOLDMAN SACHS BANK USA, as a Lender
By:
/s/ Andrew Vernon
Name:
Andrew Vernon
Title:
Authorized Signatory
BARCLAYS BANK PLC, as a Lender
By:
/s/ Sydney G. Dennis
Name:
Sydney G. Dennis
Title:
Authorized Signatory
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
/s/ Saad Rahali
Name:
Saad Rahali
Title:
Senior Vice President
[Signature Page to RCF Credit
Agreement]
NATIXIS, NEW YORK BRANCH, as a Lender
By:
/s/ Yash Anand
Name:
Yash Anand
Title:
Managing Director
THE BANK OF NOVA SCOTIA, as a Lender
By:
/s/ Trang Vo
Name:
Trang Vo
Title:
Director
BANK OF AMERICA, N.A., as a Lender
By:
/s/ Victor F. Cruz
Name:
Victor F. Cruz
Title:
Managing Director
M&T BANK, as a Lender
By:
/s/ Trent Newman
Name:
Trent Newman
Title:
Senior Vice President
[Signature Page to RCF Credit
Agreement]
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