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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): September 13, 2024
The Kroger Co.
(Exact
name of registrant as specified in its charter)
Ohio |
|
No. 1-303 |
|
31-0345740 |
(State
or other jurisdiction of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer Identification No.) |
1014 Vine Street
Cincinnati, OH 45202
(Address
of principal executive offices, including zip code)
Registrant’s telephone number, including
area code: (513) 762-4000
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))
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on
which registered |
Common
Stock $1.00 par value per share |
|
KR |
|
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. |
Revolving Credit Agreement
On September 13, 2024, The Kroger Co. (the “Company”)
executed a Credit Agreement (the “Revolving Credit Agreement”) among the Company, the lenders from time to time party thereto,
Wells Fargo Bank, National Association and Citibank, N.A., as co-administrative agents, and Wells Fargo Bank, National Association, as
the paying agent, pursuant to which the lenders party thereto have provided a $5.0 billion unsecured revolving credit facility, of which
(a) $2.75 billion of commitments have been made available on the date the Company entered into the Revolving Credit Agreement and
(b) an additional $2.25 billion of commitments will be made available upon the closing of the previously announced merger of a subsidiary
of the Company with and into Albertsons Companies, Inc. (“ACI”), with ACI surviving the merger as a wholly owned subsidiary
of the Company (the “Merger”), pursuant to that certain Agreement and Plan of Merger, dated as of October 13, 2022, among
the Company, Kettle Merger Sub, Inc. and Albertsons Companies, Inc. The Company may borrow under the Revolving Credit Agreement
for general corporate purposes, with up to $750.0 million available to be drawn on the closing date of the Merger to fund a portion of
the cash consideration therefor.
Borrowings under the Revolving Credit Agreement will bear interest
at the rates specified in the Revolving Credit Agreement, which vary based on the type of loan and the Company’s debt rating.
The Revolving Credit Agreement contains a financial covenant regarding
the Company’s leverage ratio. The Revolving Credit Agreement also contains other customary covenants and events of default for credit
facilities of this type. Upon an event of default that is not cured or waived within any applicable cure periods, in addition to other
remedies that may be available to the lenders, the commitments under the Revolving Credit Agreement may be terminated and the obligations
under the Revolving Credit Agreement may be accelerated, in each case subject to the terms and limitations contained therein.
Certain parties to the Revolving Credit Agreement, and affiliates of
those parties, provide banking, investment banking, and other financial services to the Company from time to time.
The foregoing description of the Revolving Credit Agreement does not
purport to be complete and is qualified in its entirety by the copy thereof which is filed herewith as Exhibit 10.1 and incorporated
herein by reference.
Amendments to Existing Term Loan Agreement
On September 13, 2024, the Company also entered into an amendment
(the “Amendment”) to its Term Loan Credit Agreement, dated as of November 9, 2022, by and among the Company, the lenders
from time to time party thereto and Citibank, N.A., as administrative agent (as amended by Amendment No. 1 to Credit Agreement, dated
as of July 26, 2024, the “Term Loan Agreement”), which, among other things, (i) amends the definition of Consolidated
EBITDA and certain other financial definitions applicable to the calculation of the financial covenant in the Term Loan Agreement and
(ii) amends the subsidiary debt covenant.
Certain parties to the Amendment, and affiliates of those parties,
provide banking, investment banking, and other financial services to the Company from time to time.
The foregoing description of the Amendment is not intended to be complete
and is qualified in its entirety by the copies thereof which are filed herewith as Exhibit 10.2 and incorporated herein by reference.
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 under Item 1.01 above is incorporated by
reference into this Item 2.03.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits. The following exhibits are filed with this report:
10.1 |
Credit Agreement, dated as of September 13, 2024, by and among the Company, the lenders from time to time party thereto, Wells Fargo Bank, National Association and Citibank, N.A., as co-administrative agents, and Wells Fargo Bank, National Association, as the paying agent. |
10.2 |
Amendment No. 2 to Term Loan Credit Agreement, dated as of September 13, 2024, by and among the Company, the lenders party thereto and Citibank, N.A., as administrative agent, to the Term Loan Credit Agreement, dated as of November 9, 2022. |
104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
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.
|
THE KROGER CO. |
|
|
|
September 13, 2024 |
By: |
/s/ Christine S. Wheatley |
|
|
Christine S. Wheatley |
|
|
Senior Vice President, General Counsel and Secretary |
Exhibit 10.1
EXECUTION VERSION
Deal CUSIP: 50102PAS5
Facility CUSIP: 50102PAT3
U.S. $5,000,000,000
CREDIT AGREEMENT
Dated as of September 13, 2024
Among
THE KROGER CO.
as Borrower
and
THE LENDERS
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
and
CITIBANK, N.A.
as Co-Administrative Agents
WELLS FARGO SECURITIES LLC
CITIBANK, N.A.
MIZUHO BANK, LTD.
U.S. BANK NATIONAL ASSOCIATION
and
TRUIST SECURITIES, INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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SECTION 1.01. Certain Defined Terms |
1 |
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SECTION 1.02. Computation of Time Periods |
22 |
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SECTION 1.03. Accounting Terms |
22 |
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SECTION 1.04. Divisions |
22 |
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SECTION 1.05. Interest Rates |
22 |
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ARTICLE II |
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SECTION 2.01. The Advances and the Letters
of Credit |
23 |
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SECTION 2.02. Making the Revolving Credit Advances |
24 |
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SECTION 2.03. Issuance of and Drawings and
Reimbursement Under Letters of Credit |
25 |
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SECTION 2.04. Fees |
28 |
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SECTION 2.05. Termination or Reduction of the
Commitments |
29 |
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SECTION 2.06. Repayment of Revolving Credit
Advances |
29 |
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SECTION 2.07. Interest on Revolving Credit
Advances |
29 |
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SECTION 2.08. Changed Circumstances |
30 |
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SECTION 2.09. Conversion of Revolving Credit
Advances |
31 |
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SECTION 2.10. Prepayments |
32 |
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SECTION 2.11. Increased Costs; Illegality |
32 |
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SECTION 2.12. Payments and Computations |
33 |
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SECTION 2.13. Sharing of Payments, Etc. |
34 |
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SECTION 2.14. Taxes |
34 |
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SECTION 2.15. Evidence of Debt |
37 |
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SECTION 2.16. Use of Proceeds |
38 |
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SECTION 2.17. Extension of Termination Date |
38 |
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SECTION 2.18. Obligations Absolute |
40 |
|
SECTION 2.19. Increase in
the Aggregate Commitments |
41 |
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SECTION 2.20. Cash Collateral |
42 |
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SECTION 2.21. Defaulting Lenders |
43 |
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SECTION 2.22. Mitigation Obligations; Replacement
of Lenders |
44 |
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ARTICLE III |
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SECTION 3.01. Conditions Precedent to Effectiveness |
45 |
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SECTION 3.02. Conditions Precedent to Each
Borrowing and Issuance (Other than a Certain Funds Advance) |
46 |
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SECTION 3.03. Conditions Precedent to Certain
Funds Advance |
46 |
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SECTION 3.04. Determinations Under Section 3.01
and Section 3.03 |
48 |
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ARTICLE IV |
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SECTION 4.01. Representations and Warranties
of the Borrower |
48 |
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ARTICLE V |
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SECTION 5.01. Affirmative Covenants |
49 |
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SECTION 5.02. Negative Covenants |
52 |
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SECTION 5.03. Financial Covenant |
55 |
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ARTICLE VI |
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SECTION 6.01. Events of Default |
56 |
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SECTION 6.02. Actions in Respect of Letters
of Credit |
58 |
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SECTION 6.03. Actions in Respect of Certain
Funds Sublimit |
60 |
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ARTICLE VII |
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SECTION 7.01. Appointment and Authority |
60 |
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SECTION 7.02. Rights as a Lender |
60 |
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SECTION 7.03. Exculpatory Provisions |
61 |
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SECTION 7.04. Reliance by Paying Agent |
62 |
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SECTION 7.05. Indemnification |
62 |
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SECTION 7.06. Delegation of Duties |
63 |
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SECTION 7.07. Resignation of Paying Agent |
63 |
|
SECTION 7.08. Non-Reliance
on Paying Agent and Other Lenders |
64 |
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SECTION 7.09. No Other Duties, Etc. |
64 |
|
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SECTION 7.10. Paying Agent May File Proofs
of Claim |
64 |
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SECTION 7.11. Lender ERISA Representation |
65 |
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SECTION 7.12. Erroneous Payments |
66 |
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ARTICLE VIII |
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SECTION 8.01. Waivers; Amendments, Etc. |
67 |
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SECTION 8.02. Notices, Etc. |
68 |
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SECTION 8.03. Expenses; Indemnity; Damage Waiver |
70 |
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SECTION 8.04. Right of Set-off |
71 |
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SECTION 8.05. Binding Effect |
71 |
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SECTION 8.06. Successors and Assigns |
72 |
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SECTION 8.07. Confidentiality |
75 |
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SECTION 8.08. Governing Law |
76 |
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SECTION 8.09. Execution in Counterparts; Integration; |
76 |
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SECTION 8.10. Jurisdiction; Consent to Service
of Process |
76 |
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SECTION 8.11. Patriot Act |
76 |
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SECTION 8.12. No Liability of the Issuing Banks |
77 |
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SECTION 8.13. No Advisory or Fiduciary Responsibility |
77 |
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SECTION 8.14. Acknowledgement and Consent to
Bail-In of Affected Financial Institutions |
78 |
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SECTION 8.15. Acknowledgement Regarding Any
Supported QFCs |
79 |
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SECTION 8.16. Electronic Execution of Assignments
and Certain Other Documents |
80 |
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SECTION 8.17 Waiver
of Jury Trial |
81 |
Schedules |
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Schedule I |
– |
Commitments |
|
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|
Schedule 2.01(c) |
– |
Existing Letters of Credit |
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Schedule 8.02 |
– |
Paying Agent’s Office; Certain Addresses for Notices |
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Exhibits |
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Exhibit A-1 |
– |
Form of Notice of Borrowing |
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Exhibit A-2 |
– |
Form of Notice of Issuance |
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Exhibit A-3 |
– |
Form of Notice of Conversion/Continuation |
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Exhibit B |
– |
Form of Assignment and Acceptance |
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Exhibit C |
– |
Form of Solvency Certificate |
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Exhibit D |
– |
[Reserved] |
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Exhibit E |
– |
Form of Issuing Bank Report |
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|
Exhibit F |
– |
Forms of U.S. Tax Compliance Certificates |
CREDIT AGREEMENT
Dated as of September 13, 2024
THE KROGER CO., an Ohio corporation (the “Borrower”),
the banks, financial institutions and other institutional lenders party hereto, and Wells Fargo Bank, National Association (“Wells
Fargo”), as an Issuing Bank (as defined below) and as a Co-Administrative Agent for the Lenders (as hereinafter defined) and
the Issuing Banks and paying agent (in such capacity, the “Paying Agent”), Citibank, N.A. (“Citibank”),
as an Issuing Bank and as a Co-Administrative Agent for the Lenders and the Issuing Banks, agree as follows:
PRELIMINARY STATEMENT:
WHEREAS, the Borrower has requested, and subject
to the terms and conditions set forth in this Credit Agreement (this “Agreement”), the Co-Administrative Agents and
the Lenders have agreed to extend, certain credit facilities to the Borrower.
NOW, THEREFORE, in consideration of the foregoing,
the mutual covenants and agreements set forth herein below, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Acorn” means Albertsons
Companies, Inc., a Delaware corporation.
“Acorn Acquisition”
means the acquisition by the Borrower, directly or indirectly, of all the issued and outstanding equity interests in Acorn pursuant to
the Acorn Acquisition Agreement.
“Acorn Acquisition Agreement”
means that certain Agreement and Plan of Merger, dated as of October 13, 2022 (together with the exhibits and schedules thereto),
among the Borrower, Kettle Merger Sub, Inc. and Acorn.
“Acorn Acquisition Agreement
Representations” means such of the representations made by or on behalf of Acorn and its Subsidiaries in the Acorn Acquisition
Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or an Affiliate of the Borrower)
has the right to terminate its or its Affiliates’ obligations under the Acorn Acquisition Agreement or to decline to consummate
the Acorn Acquisition as a result of a breach of such representations in the Acorn Acquisition Agreement.
“Acorn Bridge Commitment Letter”
means that certain Commitment Letter, dated as of October 13, 2022, among Citigroup Global Markets Inc., Wells Fargo, WF Securities
and the Borrower.
“Acorn Bridge Facility”
means the $17,400,000,000 senior unsecured bridge term loan credit facility contemplated by the Acorn Bridge Commitment Letter.
“Acorn Closing Date”
means the date that the Acorn Acquisition is consummated pursuant to the terms of the Acorn Acquisition Agreement.
“Acorn Closing
Date Additional Commitment” means each Lender’s commitment hereunder to extend credit to the Borrower in the amount set
forth opposite the name of such Lender on Schedule I hereto under the caption “Acorn Closing Date Additional Commitment”.
“Acorn Closing Date Additional
Commitment Availability Date” has the meaning specified in Section 2.19(d).
“Acorn Closing Date Additional
Commitment Lender” has the meaning specified in Section 2.19(d).
“Acorn Closing Date Additional
Commitment Termination Date” means the earlier to occur of (i) the date on which the Acorn Acquisition Agreement is terminated
in accordance with its terms without the closing of the Acorn Transactions and (ii) the Acorn Outside Date.
“Acorn Material Adverse Effect”
has the meaning assigned to the term “Company Material Adverse Effect” in the Acorn Acquisition Agreement as in effect on
October 13, 2022.
“Acorn Outside Date”
means the earlier of (a) the “Outside Date” under and as defined in the Acorn Acquisition Agreement (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time) and (b) December 31, 2024.
“Acorn Term Facility”
means the $4,750,000,000 senior unsecured term loan credit facility contemplated by that certain Credit Agreement, dated as of November 9,
2022, among the Borrower, the lenders from time to time party thereto, and Citibank, as administrative agent, as amended, restated, amended
and restated, supplement or otherwise modified from time to time.
“Acorn Transactions”
means, collectively, any and all of the following (whether or not consummated): (i) the Acorn Acquisition, (ii) the entry into
the Acorn Acquisition Agreement and the consummation of the transactions contemplated thereunder, (iii) the entry into the Acorn
Term Facility and this Agreement and the borrowing of the Certain Funds Advance, (iv) the incurrence by the Borrower and/or its
Subsidiaries of up to $12,650,000,000 in aggregate principal amount of senior unsecured notes, (v) the entry into the definitive
documentation for the Acorn Bridge Facility and the borrowing of any loans thereunder and (vi) the payment of fees and expenses
incurred with the foregoing.
“Administrative Questionnaire”
means an Administrative Questionnaire in a form approved by the Paying Agent.
“Advance” means a
Revolving Credit Advance (including, for the avoidance of doubt, a Certain Funds Advance) or drawings under Letters of Credit.
“Affected Financial Institution”
has the meaning specified in Section 8.14.
“Affiliate”
means, with respect to any designated Person, any other Person that has a relationship with the designated Person whereby either of such
Persons directly or indirectly controls or is controlled by or is under common control with the other of such Persons. The term “control”
means the possession, directly or indirectly, of the power, whether or not exercised, to direct or cause the direction of the management
or policies of any Person, whether through ownership of voting securities, by contract or otherwise.
“Agent Parties” has
the meaning specified in Section 8.02(c).
“Agreement” has the
meaning specified in the preliminary statements hereto.
“Anti-Corruption Laws”
means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning
or relating to bribery, corruption, or money laundering.
“Applicable Margin”
means, on any date, a percentage per annum determined by reference to the Borrower’s Public Debt Rating in effect on such date
as set forth below:
Public Debt
Rating
(S&P/ Moody’s) |
Applicable Margin for
Base Rate Advances |
Applicable Margin for
Term SOFR Advances
and Letters of Credit |
Level 1
>
A / A2 |
0.000% |
0.750% |
Level 2
A- / A3 |
0.000% |
0.875% |
Level 3
BBB+ / Baa1 |
0.000% |
1.000% |
Level 4
BBB / Baa2 |
0.125% |
1.125% |
Level 5
<
BBB- / Baa3 |
0.
250% |
1.250% |
“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arrangers” means
Wells Fargo Securities LLC, Citibank, N.A, Mizuho Bank, Ltd., U.S. Bank National Association and Truist Securities, Inc.
“Assignment
and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee, and to the extent required by
Section 8.06, accepted by the Borrower, the Paying Agent and the Issuing Banks, in substantially the form of Exhibit B hereto
or such other form as shall be approved by the Paying Agent.
“Assuming Lender” has the meaning
specified in Section 2.17(c).
“Assumption Agreement” has the
meaning specified in Section 2.17(c).
“Available Amount”
of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing); provided, however, that with respect to any Letter of Credit that,
by its terms or the terms of any Letter of Credit Document related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a
term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period
pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component
thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark,
in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the
definition of “Interest Period” pursuant to Section 2.08(c)(iv).
“Bail-In Action”
has the meaning specified in Section 8.14.
“Bail-In Legislation”
has the meaning specified in Section 8.14.
“Base
Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%,
(b) the Prime Rate and (c) Term SOFR plus 1.00%. If the Base Rate is being used as an alternate rate of interest pursuant
to Section 2.08(b) hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined
without reference to clause (c) above.
“Base Rate Advance”
means a Revolving Credit Advance that bears interest as provided in Section 2.07(a)(i).
“Base
Rate Term SOFR Determination Day” has the meaning specified in the definition of Term SOFR.
“Benchmark” means,
initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference
Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate pursuant to Section 2.08(c)(i).
“Benchmark
Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that
has been selected by the Paying Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar-denominated syndicated
credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so
determined would be less than 0.00%, such Benchmark Replacement will be deemed to be 0.00% 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 Available
Tenor, 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 Paying Agent and the Borrower giving due consideration to (a) any selection or recommendation
of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention
for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date”
means the earliest to occur of the following events with respect to the then-current Benchmark:
| (a) | in the case of clause (a) or (b) of the definition of
“Benchmark Transition Event,” the later of (i) the date of the public statement
or publication of information referenced therein and (ii) the date on which the administrator
of such Benchmark (or the published component used in the calculation thereof) permanently
or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component
thereof); or |
| (b) | in the case of clause (c) of the definition of “Benchmark
Transition Event,” the first date on which such Benchmark (or the published component
used in the calculation thereof) has been determined and announced by the regulatory supervisor
for the administrator of such Benchmark (or such component thereof) to be non-representative;
provided that such non-representativeness will be determined by reference to the most
recent statement or publication referenced in such clause (c) and even if any Available
Tenor of such Benchmark (or such component thereof) continues to be provided on such date. |
For the avoidance of doubt, the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon
the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Transition Event”
means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| (a) | a public statement or publication of information by or on behalf
of the administrator of such Benchmark (or the published component used in the calculation
thereof) announcing that such administrator has ceased or will cease to provide all Available
Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided
that, at the time of such statement or publication, there is no successor administrator
that will continue to provide any Available Tenor of such Benchmark (or such component thereof); |
| (b) | a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component used in the
calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve
Bank of New York, an insolvency official with jurisdiction over the administrator for such
Benchmark (or such component), a resolution authority with jurisdiction over the administrator
for such Benchmark (or such component) or a court or an entity with similar insolvency or
resolution authority over the administrator for such Benchmark (or such component), which
states that the administrator of such Benchmark (or such component) has ceased or will cease
to provide all Available Tenors of such Benchmark (or such component thereof) permanently
or indefinitely; provided that, at the time of such statement or publication, there
is no successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof); or |
| (c) | a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component used in the
calculation thereof) announcing that all Available Tenors of such Benchmark (or such component
thereof) are not, or as of a specified future date will not 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 Transition Start
Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date
and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th
day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such
prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark
Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has
occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any
Loan Document in accordance with Section 2.08(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced
the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.08(c)(i).
“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” has
the meaning specified in Section 7.11.
“BHC Act Affiliate”
has the meaning specified in the preamble hereto.
“Borrower Materials”
has the meaning specified in Section 5.01(h).
“Borrowing” means
a borrowing consisting of simultaneous Revolving Credit Advances of the same Type and, to the extent applicable, with the same Interest
Period, made by each of the Lenders pursuant to Section 2.01(a).
“Business
Day” means any day other than a Saturday, Sunday or other day on which banks are not required or authorized to close
in New York City; provided that when used in connection with any Term SOFR Advance or the Term SOFR component of any Base Rate Advance,
the term “Business Day” shall also exclude any day on which is not a U.S. Government Securities Business Day.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Paying Agent, for the benefit of the Paying Agent or the Issuing Banks (as applicable)
and the Lenders, as collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect of Letters
of Credit, cash or deposit account balances or, if the Issuing Bank benefiting from such collateral shall agree in its sole discretion,
other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Paying Agent and (b) the
applicable issuing Bank (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include
the proceeds of such cash collateral and other credit support.
“Certain Funds Advance”
shall mean one or more Revolving Credit Advances to the Borrower made on the Acorn Closing Date made solely to finance a Certain Funds
Purpose.
“Certain Funds Commitment”
shall mean, with respect to any Lender, its several Commitment hereunder to make a Certain Funds Advance hereunder in an amount equal
to its Ratable Share of the Certain Funds Sublimit.
“Certain Funds Purpose”
shall mean one or more of the purposes set out in Section 2.16 with respect to the Certain Funds Advance.
“Certain Funds Sublimit”
shall mean $750,000,000, which shall automatically be reduced $0 on the first to occur of (x) the Acorn Closing Date and (y) the
Certain Funds Termination Date. The Certain Funds Sublimit is part of, and not in addition to, the Lenders’ Commitment, and shall
expire on the Certain Funds Termination Date.
“Certain Funds Termination
Date” means the earliest of (a) the Acorn Outside Date, (b) the date that the Acorn Acquisition Agreement is terminated
or expires in accordance with the terms thereof and (c) the Acorn Closing Date (after giving effect to the funding of any Certain
Funds Advance on such date).
“Change of Control”
means any one or more of the following events:
(a) the
acquisition, by contract or otherwise, by any Person or group (as such term is defined for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations pertaining thereto),
other than the trusts for the employee benefit plans (as defined in Section 3(3) of ERISA) maintained by the Borrower or any
Subsidiary of the Borrower that is an ERISA Affiliate, of beneficial ownership (within the meaning of Rule 13d-3, or any regulation
or ruling promulgated to replace or supplement Rule 13d-3, of the General Rules and Regulations under the Exchange Act), directly
or indirectly, of securities of the Borrower representing 35% or more of the voting power of all securities of the Borrower, or
(b) during
any period of up to 24 consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning
of such period were directors of the Borrower (together with any new directors whose election by the Board of Directors or whose nomination
for election by the stockholders of the Borrower was approved by a vote of at least a majority of the directors then in office who either
were directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease for
any reason to constitute at least a majority of the Board of Directors of the Borrower.
“Citibank” has the
meaning specified in the preamble hereto.
“Co-Administrative Agent”
means each of Wells Fargo and Citibank, in their respective capacities as an administrative agent with respect to this Agreement.
“Commitment” means
as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Commitment”,
(b) if such Lender has become a Lender hereunder pursuant to an Assumption Agreement, the amount set forth in such Assumption Agreement
or (c) if such Lender has entered into an Assignment and Acceptance, the amount set forth for such Lender in the Register maintained
by the Paying Agent pursuant to Section 8.06(c), as such amount may be reduced pursuant to Section 2.05 or increased pursuant
to Section 2.19. Notwithstanding the foregoing, except for the purposes of Section 2.04(a) (to the extent set forth therein),
Section 2.05, Article V, Article VI and Article VIII, the Commitments of any Lender shall not include such Lender’s
Acorn Closing Date Additional Commitments until and following the Acorn Closing Date Additional Commitment Availability Date.
“Commitment
Date” has the meaning specified in Section 2.19(b).
“Commitment Fee” has the meaning
specified in Section 2.04(a).
“Commitment Fee Percentage”
means, on any date, a percentage per annum determined by reference to the Borrower’s Public Debt Rating in effect on such date
as set forth below:
Public Debt
Rating
(S&P/ Moody’s) |
Commitment Fee
Percentage |
Level 1
>
A / A2 |
0.070% |
Level 2
A- / A3 |
0.080% |
Level 3
BBB+ / Baa1 |
0.090% |
Level 4
BBB / Baa2 |
0.110% |
Level 5
<
BBB- / Baa3 |
0.150% |
“Commitment
Increase” has the meaning specified in Section 2.19(a).
“Consenting Lender” has the meaning
specified in Section 2.17(b).
“Conforming
Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or
implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition
of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business
Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest
period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.08 and other
technical, administrative or operational matters) that the Paying Agent decides (in consultation with the Borrower) may be appropriate
to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Paying Agent in a
manner substantially consistent with market practice (or, if the Paying Agent decides (in consultation with the Borrower) that adoption
of any portion of such market practice is not administratively feasible or if the Paying Agent determines that no market practice for
the administration of any such rate exists, in such other manner of administration as the Paying Agent, in consultation with the Borrower,
decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch
profits Taxes.
“Consolidated” refers
to the consolidation of accounts in accordance with GAAP, including principles of consolidation, consistent with those applied in the
preparation of the Consolidated financial statements referred to in Section 4.01(e).
“Consolidated EBITDA”
means, for any period, on a Consolidated basis for the Borrower and its Subsidiaries, (a) the sum of (i) Consolidated Net Income
for such period, (ii) depreciation and amortization expense for such period, (iii) interest expense (excluding estimated interest
expense with respect to the Excluded Ocado CFCs using a weighted average of the lease rates of the Excluded Ocado CFCs for the applicable
period) net of interest income for such period, (iv) Federal and state income taxes for such period as determined in accordance
with GAAP, (v) expenses or losses that are of an unusual nature or infrequently occurring for such period and (vi) LIFO charges
that have been included in the calculation of Consolidated Net Income for such period minus (b) the sum of (i) income
or gains that are of an unusual nature or infrequently occurring for such period and (ii) LIFO credits that have been included in
the calculation of Consolidated Net Income for such period.
“Consolidated Net Income”
means, for any period, the net income of the Borrower and its Consolidated Subsidiaries for such period, before the payment of dividends
on all capital stock, determined in accordance with GAAP.
“Consolidated Net Tangible
Assets” means, to the Borrower and its Subsidiaries on a Consolidated basis determined in accordance with generally accepted
accounting principles, the aggregate amounts of assets (less depreciation and valuation reserves and other reserves and items deductible
from gross book value of specific asset accounts under generally accepted accounting principles) which under generally accepted accounting
principles would be included on a balance sheet after deducting therefrom (a) all liability items except deferred income taxes,
commercial paper, short-term bank Debt, Funded Indebtedness (as defined in the Indenture), other long term liabilities and shareholders’
equity and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles,
which in each case would be so included on such balance sheet.
“Consolidated Tangible Assets”
means, to the Borrower and its Subsidiaries on a Consolidated basis determined in accordance with generally accepted accounting principles,
the aggregate amounts of assets (less depreciation and valuation reserves and other reserves and items deductible from gross book value
of specific asset accounts under generally accepted accounting principles) which under generally accepted accounting principles would
be included on a balance sheet after deducting therefrom all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which would be so included on such balance sheet.
“Convert”, “Conversion”
and “Converted” each refers to a conversion of Revolving Credit Advances of one Type into Revolving Credit Advances
of the other Type pursuant to Section 2.08 or 2.09.
“Covenant Reset Notice”
has the meaning specified in Section 5.03(a).
“Covenant Reset Period”
has the meaning specified in Section 5.03(a).
“Covered Entity”
has the meaning specified in Section 8.15(b).
“Covered Party” has
the meaning specified in Section 8.15(a).
“Debt” of any Person
means, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property
or services (including all obligations, contingent or otherwise, of such Person in connection with the Letters of Credit, letter of credit
facilities, acceptance facilities or other similar facilities and in connection with any agreement to purchase, redeem, exchange into
debt securities, convert into debt securities or otherwise acquire for value (i) any capital stock of such Person or (ii) any
warrants, rights or options to acquire such capital stock, now or hereafter outstanding) (but excluding, for the avoidance of doubt,
trade letters of credit and other trade payables), (b) all obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) all indebtedness created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (d) all Finance Lease Obligations of such Person, (e) all
Debt referred to in clause (a), (b), (c) or (d) above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any lien, security interest or other charge or encumbrance upon or in property (including
accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such
Debt, (f) all Guaranteed Debt of such Person and (g) any preferred stock of such Person that is classified as a liability on
such Person’s Consolidated balance sheet.
“Default” means any
Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or
both.
“Default Interest”
has the meaning specified in Section 2.07(b).
“Defaulting
Lender” means, subject to Section 2.21(b), any Lender that, as determined by the Paying Agent, (a) has failed to
perform any of its funding obligations hereunder, including in respect of its Advances or participations in respect of Letters of Credit,
within three Business Days of the date required to be funded by it hereunder unless such Lender notifies the Paying Agent and
the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, (b) has notified the Borrower, the Paying Agent or any Issuing Bank in writing that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or
generally under other agreements in which it commits to extend credit, or has made a public statement to that effect (unless such writing
or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that such position is based on
such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business
Days after request by the Paying Agent or the Borrower, to confirm in a manner reasonably satisfactory to the Paying Agent and the Borrower
that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the Paying Agent and the Borrower), or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any debtor relief law or a Bail-In
Action, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of,
or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a governmental authority so long as such ownership interest does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or
permit such Lender (or such governmental authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender. Any determination by the Paying Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through
(d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject
to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Lender.
“Default Rate” has
the meaning specified in Section 2.07(b).
“Default Right” has
the meaning specified in Section 8.15(b).
“EEA Financial Institution”
has the meaning specified in Section 8.14.
“EEA Member Country”
has the meaning specified in Section 8.14.
“EEA Resolution Authority”
has the meaning specified in Section 8.14.
“Effective Date”
has the meaning specified in Section 3.01.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 8.06(b)(iii) and (v) (subject to such consents,
if any, as may be required under Section 8.06(b)(iii)).
“Eligible Securities”
has the meaning specified in Section 6.02(d).
“Environmental Laws”
means all current and future Federal, state, local and foreign laws, rules or regulations, codes, ordinances, orders, decrees, judgments
or injunctions issued, promulgated, approved or entered thereunder or other requirements of Governmental Authorities or the common law,
relating to health, safety, or pollution or protection of the environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances, or wastes into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances, or wastes, or underground storage tanks and emissions therefrom.
“ERISA” means the
Employee Retirement Income Security Act of 1974, or any successor statute, as the same may be amended from time to time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414
of the Internal Revenue Code.
“Erroneous Payment”
has the meaning specified in Section 7.12(a).
“Erroneous Payment Deficiency
Assignment” has the meaning specified in Section 7.12(d).
“Erroneous Payment Impacted
Class” has the meaning specified in Section 7.12(d).
“Erroneous Payment Return Deficiency”
has the meaning specified in Section 7.12(d).
“EU Bail-In Legislation Schedule”
has the meaning specified in Section 8.14.
“Events of Default”
has the meaning specified in Section 6.01.
“Excluded Ocado CFC”
means, as of any date, each Ocado CFC designated by the Borrower in writing to the Paying Agent as an “Excluded Ocado CFC”
(which notification may be made through a compliance certificate delivered to the Paying Agent pursuant to Section 5.01(h)(iii));
provided that, the Borrower may designate no more than twenty Ocado CFCs as “Excluded Ocado CFCs” during the term of this
Agreement.
“Excluded Ocado CFC Amount”
means, as of any date of determination, with respect to any Excluded Ocado CFC, an amount equal to the lesser of (x) the aggregate
principal amount of Finance Lease Obligations of the Borrower and its Subsidiaries with respect to such Excluded Ocado CFC which have
been (or have been required to be) recorded as a Finance Lease Obligation on the consolidated balance sheet of the Borrower and its Subsidiaries
for no more than five years as of such date of determination (which Finance Lease Obligations shall be amortized using a “straight-line”
method over a 10-year average useful life) and (y) $130,000,000.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to any 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 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 an Advance or Commitment pursuant to a law in effect on the date on
which (i) such Lender acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower
under Section 2.22) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 2.14(a) or
(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party
hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure
to comply with Section 2.14(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Credit Agreement”
means that certain Amended and Restated Credit Agreement, dated as of July 6, 2021, among the Borrower, the lenders from time to
time party thereto, and Bank of America, N.A. and Wells Fargo, as co-administrative agents (as amended by Amendment No. 1 dated
November 9, 2022 and as further amended, restated, amended and restated, supplemented or modified from time to time prior to the
Effective Date).
“Existing Letters of Credit”
means each standby Letter of Credit that (a) was issued for the account of the Borrower by one of the issuing banks under the Existing
Credit Agreement that is also an Issuing Bank under this Agreement, (b) is outstanding on the Effective Date and (c) is listed
on Schedule 2.01(c).
“Extension Date” has the meaning
specified in Section 2.17(a).
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or
regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental
Authorities entered into in connection with the implementation of the foregoing.
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members
of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided
that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average
of the quotation for such day on such transactions received by the Paying Agent from three federal funds brokers of recognized standing
selected by the Paying Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed
to be zero for purposes of this Agreement.
“Finance Lease Obligation”
means, with respect to any lessee, the obligations under any lease of property that, in accordance with GAAP, should be capitalized and
reflected on such lessee’s balance sheet as “finance leases”. For the avoidance of doubt, “Finance Lease Obligations”
shall not include any obligations or liabilities that are reflected on any lessee’s balance sheet as a liability in respect of
any “operating lease”.
“Financial Officer”
means, with respect to any corporation, the chief financial officer, principal accounting officer, treasurer or controller of such corporation.
“Fiscal Quarter”
means (a) with respect to the first Fiscal Quarter of any Fiscal Year, the first 16 calendar weeks of such Fiscal Year, (b) with
respect to the second Fiscal Quarter of such Fiscal Year, the next successive period of 12 calendar weeks in such Fiscal Year, (c) with
respect to the third Fiscal Quarter of any Fiscal Year, the next successive period of 12 calendar weeks in such Fiscal Year and
(d) with respect to the last Fiscal Quarter of any Fiscal Year, the period of time after the first three Fiscal Quarters of such
Fiscal Year through the last day of such Fiscal Year.
“Fiscal Year” means
a year of 364 or 371 days, as the case may be, ending on the Saturday closest to the 31st day of January in any calendar year,
and such Fiscal Year, when referred to from time to time herein by reference to a calendar year shall be the Fiscal Year that includes
February 28th of such calendar year.
“Fitch” means Fitch, Inc.
“Foreign Lender”
means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person,
a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Fronted L/C Obligations”
means, as at any date of determination, the aggregate Available Amount of outstanding Letters of Credit plus the aggregate principal
amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by the Lenders
and remain outstanding on such date. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Fronting Exposure”
means, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting Lender’s Ratable Share of the
outstanding Fronted L/C Obligations other than Fronted L/C Obligations as to which such Defaulting Lender’s participation obligation
has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any
Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” has the meaning
specified in Section 1.03.
“Governmental Authority”
means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
“Granting Lender”
has the meaning specified in Section 8.06(g).
“Guaranteed Debt”
of any Person means all Debt referred to in clause (a), (b), (c), (d) or (e) of the definition of the term “Debt”
in this Section guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (a) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such
Debt, (b) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (c) to supply funds to, or
in any other manner invest in, the debtor (including any agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (d) otherwise to assure a creditor against loss, but excluding leases at a rental
at least as favorable to the Borrower as could be obtained in an arm’s-length transaction with a party that is not an Affiliate.
“Hazardous Materials”
means any toxic substance, hazardous waste, hazardous constituents, hazardous materials, asbestos or asbestos containing material, polychlorinated
biphenyls, per- and polyfluoroalkyl substances, petroleum, including crude oil and any fractions thereof, or other wastes, chemicals,
substances or materials regulated by any Environmental Laws.
“ICC”
has the meaning specified in the definition of UCP.
“Increase
Date” has the meaning specified in Section 2.19(a).
“Increasing
Lender” has the meaning specified in Section 2.19(b).
“Indemnified
Costs” has the meaning specified in Section 7.05(a).
“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
the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has
the meaning specified in Section 8.03(b).
“Indenture”
means the indenture dated as of June 25, 1999 between the Borrower and U.S. Bank National Association, as trustee (as it may be
modified or supplemented from time to time).
“Initial GAAP” has
the meaning specified in Section 1.03.
“Initial Advances”
has the meaning specified in Section 2.01(b).
“Interest Period”
means, for each Term SOFR Advance comprising part of the same Borrowing, the period commencing on the date of such Term SOFR Advance
or the date of the Conversion of any Base Rate Advance into such Term SOFR Advance and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, three or six months, as the Borrower may, upon notice received by the Paying Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the
Borrower may not select any Interest Period that ends after the latest Termination Date then in effect;
(ii) Interest
Periods commencing on the same date for Term SOFR Advances comprising part of the same Borrowing shall be of the same duration;
(iii) whenever
the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business
Day; and
(iv) whenever
the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
No tenor that has been removed from this
definition pursuant to Section 2.08(c)(iv) shall be available for specification in any Notice of Borrowing or any Notice of
Conversion/Continuation.
“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking
Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of the Letter of Credit).
“Issuance”
with respect to any Letter of Credit means the issuance, amendment, renewal or extension of such Letter of Credit.
“Issuing Bank” means
each of Wells Fargo Bank, National Association, Citibank, N.A., Mizuho Bank, Ltd., U.S. Bank National Association, Truist Bank and
any other Lender so long as such Lender expressly agrees to perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Paying Agent of the amount of its L/C
Commitment and its Lending Office (which information shall be recorded by the Paying Agent in the Register).
“L/C Advance” means,
with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Ratable Share.
“L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced
as a Borrowing.
“L/C Commitment”
means as to any Issuing Bank (a) the amount set forth opposite such Issuing Bank’s name on Schedule I hereto as such Lender’s
“L/C Commitment” or (b) if such Issuing Bank has become an Issuing Bank hereunder in accordance with the definition
of “Issuing Bank”, or if such Issuing Bank has entered into an Assignment and Acceptance, the amount set forth for such Issuing
Bank in the Register maintained by the Paying Agent pursuant to Section 8.06(c), as such amount may be reduced pursuant to Section 2.05.
“Lender-Related Person”
has the meaning specified in Section 8.03(d).
“Lenders” means each
of the banks, financial institutions and other institutional lenders listed on Schedule I hereto, each Assuming Lender that shall become
a party hereto pursuant to Section 2.17 or Section 2.19 and each Person that shall become a party hereto pursuant to Section 8.06.
“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire,
or such other office or offices as a Lender may from time to time notify the Borrower and the Paying Agent, which office may include
any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires
each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit”
means any standby letters of credit issued (or deemed issued) under this Agreement, including the Existing Letters of Credit.
“Letter of Credit Agreement” has the meaning
specified in Section 2.03(a).
“Letter of Credit Collateral” has the meaning
specified in Section 6.02(b).
“Letter of Credit Collateral Account” has
the meaning specified in Section 6.02(a).
“Letter of Credit Documents” has the meaning
specified in Section 2.18.
“Letter of Credit Obligations”
means, at any time, the sum of (a) the maximum aggregate amount then available to be drawn under the Letters of Credit outstanding
at such time (the determination of such maximum amount to assume the occurrence of, and compliance with, all conditions for drawing referred
to therein) plus (b) the aggregate amount of the Borrower’s obligations then outstanding under this Agreement in respect
of the Letters of Credit, including all Advances resulting from drawings under Letters of Credit and all fees and expenses in respect
of the Letters of Credit payable pursuant to Section 2.04.
“Letter of Credit Sublimit”
means, at any time, an amount equal to the lesser of (a) $350,000,000 and (b) the aggregate amount of the Commitments, as in
effect from time to time. The Letter of Credit Sublimit is a part of, and not in addition to, the Revolving Credit Commitments.
“Leverage Ratio”
means the ratio (determined as of the last day of each Fiscal Quarter for the Rolling Period ending on such day) of (i) Net Debt
on such day to (ii) Consolidated EBITDA for such Rolling Period. If, during the Rolling Period, the Borrower or any Subsidiary
has made an acquisition or a disposition, Consolidated EBITDA for such Rolling Period will be calculated after giving pro forma effect
as if the acquisition or disposition occurred on the first date of the Rolling Period.
“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge, assignment for security (whether collateral or otherwise),
hypothecation, encumbrance, lease, sublease, charge or security interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, finance lease or title retention agreement relating to such asset and (c) in the case
of securities, any purchase option, call or similar right of a third party with respect to such securities.
“LIFO” means the
pretax charge against income determined by using the last-in-first-out method of valuing inventory.
“Loan Documents”
means this Agreement and Notes, if any, the Letter of Credit Documents and any agreement creating or perfecting rights in Cash Collateral
pursuant to the provisions of Section 2.20 of this Agreement.
“Material
Adverse Change” means any material adverse change in the business, operations, properties or condition (financial or otherwise)
of the Borrower and its Subsidiaries, taken as a whole.
“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect on, the business, operations, properties or condition (financial
or otherwise) of the Borrower and its Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Borrower to
perform any of its obligations under any Loan Document to which it is or will be a party or (c) material impairment of the rights
of or benefits available to the Paying Agent, the Issuing Banks or the Lenders under any Loan Document.
“Material Subsidiary”
means any Subsidiary of the Borrower that would be a “significant subsidiary” of the Borrower within the meaning of Rule 1-02
under Regulation S-X promulgated by the Securities and Exchange Commission.
“Moody’s” means
Moody’s Ratings.
“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal Revenue Code)
is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation
to make contributions.
“Net Debt” means,
on a Consolidated basis for the Borrower and its Subsidiaries as of any date, (a) Debt minus (b) the sum as of such
date of (i) the aggregate outstanding amount of Debt represented by investments made by the Borrower in Debt of another Person in
connection with a real estate transaction, so long as the Borrower or one of its Subsidiaries is or becomes an anchor tenant of the real
estate development with respect thereto and no more than two anchor tenants exist with respect to such real estate development or the
Borrower or one of its Subsidiaries has a contractual obligation to make lease or other payments to such Person as a result of the real
estate transaction in which such Debt was issued, (ii) the aggregate amount of Permitted Investments and (iii) the lesser of
(x) the aggregate Excluded Ocado CFC Amounts of all Excluded Ocado CFCs as of such date and (y) $2,600,000,000.
“Non-Approving Lender”
means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders
in accordance with the terms of Section 8.01 and (b) has been approved by the Required Lenders.
“Non-Consenting Lender” has the
meaning specified in Section 2.17(b).
“Note” has the meaning
specified in Section 2.15.
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“Notice of Conversion/Continuation”
means a notice in substantially the form of Exhibit A-3.
“Notice of Issuance” has the meaning specified
in Section 2.03(a).
“Ocado CFC” means
any customer fulfilment center constructed by the Borrower and/or any of its Subsidiaries in partnership with Ocado Group plc or Ocado
Solutions Limited (or their applicable affiliates).
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced
any Loan Document, or sold or assigned an interest in any Advance or 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 2.22).
“Participant” has
the meaning specified in Section 8.06(d).
“Participant Register”
has the meaning specified in Section 8.06(d).
“Paying Agent” has
the meaning specified in the preamble hereto.
“Paying Agent’s
Office” means the Paying Agent’s address and, as appropriate, account as set forth on Schedule 8.02, or such other address
or account as the Paying Agent may from time to time notify to the Borrower and the Lenders.
“Payment Recipient”
has the meaning specified in Section 7.12(a).
“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Periodic
Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Investments”
means (a) cash, (b) readily marketable securities issued or guaranteed by the government of the United States of America or
any agency thereof having a maturity at the time of issuance not exceeding one year, (c) commercial paper rated at least A-1 by
S&P, P-1 by Moody’s or F-1 by Fitch, in each case having a maturity at the time of issuance not exceeding 270 days, (d) commercial
paper rated at least A-2 by S&P, P-2 by Moody’s or F-2 by Fitch, in each case having a maturity at the time of issuance not
exceeding 30 days and not exceeding for any issuer thereof $50,000,000, and (e) certificates of deposit of or time deposits with
any commercial bank, the long-term debt of which has been assigned a rating of at least BBB by S&P or A3 by Moody’s and which
is a Lender and is organized and existing or doing business under the laws of the United States of America or any state thereof or the
District of Columbia.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture,
limited liability company or other entity, or a government (domestic or foreign) or any political subdivision or agency thereof.
“Plan” means any
pension plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Title IV
of ERISA or Section 412 of the Internal Revenue Code that is maintained for current or former employees, or any beneficiary thereof,
of the Borrower or any ERISA Affiliate.
“Platform” has the
meaning specified in Section 5.01(h).
“Prime Rate” means,
at any time, the rate of interest per annum publicly announced from time to time by the Paying Agent as its prime rate. Each change in
the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto
acknowledge that the rate announced publicly by the Paying Agent as its prime rate is an index or base rate and shall not necessarily
be its lowest or best rate charged to its customers or other banks.
“Proprietary Information”
has the meaning specified in Section 8.07.
“PTE” has the meaning
specified in Section 7.11.
“Public Debt Rating”
means, as of any date, the rating that has been most recently announced by either S&P or Moody’s, as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a) if only
one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Commitment Fee Percentage shall
be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt
Rating, the Applicable Margin and the Commitment Fee Percentage will be set in accordance with Level 5 under the definition of “Applicable
Margin” or “Commitment Fee Percentage”, as the case may be; (c) if the ratings established by S&P and Moody’s
shall fall within different levels, the Applicable Margin and the Commitment Fee Percentage shall be based upon the higher rating unless
such ratings differ by two or more levels, in which case the applicable level will be deemed to be one level below the higher of such
levels; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall
change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as
the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.
“Public Lender” has
the meaning specified in Section 5.01(h).
“QFC” has the meaning
specified in Section 8.15(b).
“QFC Credit Support”
has the meaning specified in Section 8.15.
“Ratable Share” of
any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is
the amount of such Lender’s Commitment at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05
or 6.01, such Lender’s Commitment as in effect immediately prior to such termination) and the denominator of which is the aggregate
amount of all Commitments at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the
aggregate amount of all Commitments as in effect immediately prior to such termination).
“Recipient” means
the Paying Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder.
“Register” has the
meaning specified in Section 8.06(c).
“Related
Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees,
agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Relevant
Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York,
or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of
New York, or any successor thereto.
“Removal
Effective Date” has the meaning specified in Section 7.07(b).
“Reportable Event”
means any reportable event as defined in Section 4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Internal Revenue Code).
“Required Lenders”
means, at any time, Lenders holding more than 50% of the then aggregate unpaid principal amount of all outstanding Advances (with the
aggregate amount of each Lender’s risk participation and funded participation in Fronted L/C Obligations being deemed “held”
by such Lender for purposes of this definition) or, if no such principal amount is then outstanding, Lenders having more than 50% of
the Commitments; provided that the Commitment of, and the portion of the Advances held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.
“Resignation
Effective Date” has the meaning specified in Section 7.07(a).
“Resolution Authority”
has the meaning specified in Section 8.14.
“Responsible Officer”
of any corporation means any executive officer or Financial Officer of such corporation and any other officer or similar official thereof
responsible for the administration of the obligations of such corporation in respect of this Agreement.
“Revolving Credit Advance”
means an advance by a Lender to the Borrower as part of a Borrowing and refers to a Base Rate Advance or a Term SOFR Advance (each of
which shall be a “Type” of Revolving Credit Advance).
“Rolling Period”
means, in respect of any Fiscal Quarter, such Fiscal Quarter and the three preceding Fiscal Quarters.
“S&P” means S&P
Global Ratings, a division 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 comprehensive territorial Sanctions.
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European
Union or His Majesty’s Treasury of the United Kingdom, or any Person in which such listed Person owns, directly or indirectly,
a 50 percent or greater interest, or (b) any Person located, organized or resident in a Sanctioned Country.
“Sanctions” means
economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) 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, Canada, any European Union member state, or His Majesty’s Treasury of the United Kingdom.
“SOFR” means the
Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment”
means 0.10% (10.0 basis points).
“SPC” has the meaning
specified in Section 8.06(g).
“Specified Representations”
means the representations and warranties of the Borrower made on the Acorn Closing Date under Section 4.01(a); Section 4.01(b)(i);
Section 4.01(b)(ii) (solely to the extent such representation and warranty is made with respect to debt instruments of the
Borrower in a principal or committed amount in excess of $250,000,000 after giving pro forma effect to the Acorn Transactions, in each
case, as they relate to the entering into and performance of the Loan Documents); Section 4.01(d); Section 4.01(g); Section 4.01(h);
and the second and third sentences of Section 4.01(i) (solely to the extent such representation and warranty is made with respect
to the use of proceeds of the Certain Funds Advance hereunder).
“Subsequent Borrowings”
has the meaning specified in Section 2.01(b).
“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than
50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s
other Subsidiaries.
“Supported QFC” has
the meaning specified in Section 8.15.
“Swap Contract” has
the meaning specified in Section 8.15(b).
“Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date”
means the earlier of (a) September 13, 2029, subject to the extension thereof pursuant to Section 2.17, and (b) the
date of termination in whole of the aggregate Commitments pursuant to Section 2.05 or 6.01; provided, however, that
the Termination Date of any Lender that is a Non-Consenting Lender to any requested extension pursuant to Section 2.17 shall be
the Termination Date in effect immediately prior to the applicable Extension Date for all purposes of this Agreement.
“Term SOFR” means:
(a) for
any calculation with respect to a Term SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period
on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities
Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided,
however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate
for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term
SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR
Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was
published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three
(3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such
day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior
to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern
time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the
Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR
will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as
such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days
prior to such Base Rate SOFR Determination Day;
plus,
in each case, the SOFR Adjustment;
provided,
further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above)
shall ever be less than 0.00%, then Term SOFR shall be deemed to be 0.00%.
“Term
SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term
SOFR Reference Rate selected by the Paying Agent in its reasonable discretion).
“Term SOFR Advance”
means a Revolving Credit Advance that bears interest as provided in Section 2.07(a)(ii).
“Term SOFR Reference Rate”
means the forward-looking term rate based on SOFR.
“Type” has the meaning
specified in the definition of Revolving Credit Advance, and refers to the distinction between Base Rate Advances and Term SOFR Advances.
“UCP”
means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber
of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“UK Financial Institution”
has the meaning specified in Section 8.14.
“UK Resolution Authority”
has the meaning specified in Section 8.14.
“Unadjusted Benchmark Replacement”
means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unused Commitment”
means, with respect to each Lender at any time, (a) such Lender’s Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Revolving Credit Advances made by such Lender (in its capacity as a Lender) and outstanding
at such time, plus (ii) such Lender’s Ratable Share of (A) the aggregate Available Amount of all the Letters of
Credit outstanding at such time and (B) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that
have not been ratably funded by such Lender and remain outstanding at such time.
“U.S. Government Securities
Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets
Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal
holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Person” means
any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Special Resolution Regimes”
has the meaning specified in Section 8.15.
“U.S. Tax Compliance Certificate”
has the meaning specified in Section 2.14(f)(ii)(B)(III).
“Wells Fargo” has
the meaning specified in the preamble hereto.
“WF Securities” means
Wells Fargo Securities LLC.
“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.
“Withholding Agent”
means the Borrower and the Paying Agent.
“Write-Down and Conversion
Powers” has the meaning specified in Section 8.14.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03. Accounting Terms. All
accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles as in
effect in the United States from time to time (“GAAP”), provided that (a) if there is any change in GAAP
from such principles applied in the preparation of the audited financial statements referred to in Section 4.01(e) (“Initial
GAAP”), that is material in respect of the calculation of compliance with the covenants set forth in Section 5.03, the
Borrower shall give prompt notice of such change to the Paying Agent and the Lenders, (b) if the Borrower notifies the Paying Agent
that the Borrower requests an amendment of any provision hereof to eliminate the effect of any change in GAAP (or the application thereof)
from Initial GAAP (or if the Paying Agent or the Required Lenders request an amendment of any provision hereof for such purpose), regardless
of whether such notice is given before or after such change in GAAP (or the application thereof), then such provision shall be applied
on the basis of generally accepted accounting principles as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision is amended in accordance herewith.
SECTION 1.04. Divisions. Any reference
herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term,
shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability
company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation,
assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited
liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary,
joint venture or any other like term shall also constitute such a Person or entity).
SECTION 1.05.
Interest Rates. The Paying Agent does not warrant or accept any responsibility for, and shall not have any liability with
respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR
Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or with respect to any
alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics
of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant
to Section 2.08(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity
as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect,
implementation or composition of any Conforming Changes. The Paying Agent and its Affiliates or other related entities may engage in
transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including
any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower. The Paying Agent
may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate or Term SOFR, or any
other Benchmark, any component definition thereof or rates referred to 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.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS
OF CREDIT
SECTION 2.01. The Advances and the Letters
of Credit. (a) The Revolving Credit Advances. Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Revolving Credit Advances in U.S. dollars to the Borrower from time to time on any Business Day during the period
from the Effective Date until the Termination Date applicable to such Lender in an amount not to exceed such Lender’s Unused Commitment
at such time; provided that in the case of a Certain Funds Advance, the Revolving Credit Advances made with respect thereto shall
not exceed the Certain Funds Sublimit. Each Borrowing shall be in an aggregate minimum amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof and shall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each Lender’s Commitment, the Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).
(b) Acorn
Closing Date Additional Commitments. On the Acorn Closing Date Additional Commitment Availability Date, (A) the aggregate principal
amount of the Advances outstanding (for the purposes of this Section 2.01(b), the “Initial Advances”) immediately
prior to the Acorn Closing Date Additional Commitment Availability Date shall be deemed to be repaid, (B) the Borrower shall be
deemed to have made new Borrowings (for the purposes of this Section 2.01(b), the “Subsequent Borrowings”) in
an aggregate principal amount equal to the aggregate principal amount of the Initial Advances of the Borrower and of the Types and for
the Interest Periods specified in a Notice of Borrowing delivered in accordance with Section 2.02 prior to the Acorn Closing Date
Additional Commitment Availability Date, (C) each Lender shall pay to the Paying Agent in accordance with Section 2.02 an amount
equal to the difference, if positive, between (x) such Lender’s Ratable Share (calculated including the Acorn Closing Date
Additional Commitments) of the Subsequent Borrowings and (y) such Lender’s Ratable Share (calculated excluding the Acorn Closing
Date Additional Commitments) of the Initial Advances, (D) after the Paying Agent receives the funds specified in clause (C) above,
the Paying Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (1) such
Lender’s Ratable Share (calculated excluding the Acorn Closing Date Additional Commitments) of the Initial Advances and (2) such
Lender’s Ratable Share (calculated including the Acorn Closing Date Additional Commitments) of the amount of the Subsequent Borrowings,
(E) each Lender shall hold its Ratable Share of each Subsequent Borrowing (each calculated including the Acorn Closing Date Additional
Commitments) and (F) the Borrower shall pay each Lender any and all accrued but unpaid interest on the Initial Advances held by
such Lender immediately prior to the Acorn Closing Date Additional Commitment Availability Date. The Lenders hereby waive the right to
deemed compensation pursuant to Section 8.03(c) hereof in respect of any deemed payments made pursuant to clause (A) above.
(c) The
Letters of Credit. (i) Upon the terms and subject to the conditions hereinafter set forth, the Borrower may request any Issuing
Bank to issue, and any such Issuing Bank shall in reliance upon the agreements of the Lenders set forth herein issue, Letters of Credit
for the account of the Borrower and its Subsidiaries from time to time on any Business Day during the period from the Effective Date
until 30 days before the latest Termination Date in an aggregate Available Amount (A) for all Letters of Credit not to exceed at
any time the Letter of Credit Sublimit at such time, (B) for all Letters of Credit issued by such Issuing Bank not to exceed such
Issuing Bank’s L/C Commitment at such time and (C) for each such Letter of Credit not to exceed an amount equal to the Unused
Commitments of the Lenders at such time. On and as of the Effective Date, each Existing Letter of Credit shall be deemed to be a “Letter
of Credit” issued hereunder.
(ii) Each
Letter of Credit (other than Existing Letters of Credit) shall be for a period of no more than one year or shall be extendable or terminable
(upon no more than 180 days’ notice) annually and, in each case, shall contain such terms and conditions as may be acceptable
to the Paying Agent and the applicable Issuing Bank in their sole discretion, but in any event shall expire no later than 30 days
prior to the latest Termination Date in effect at the date of issuance thereof; provided that no Letter of Credit shall have an
expiration date later than 30 days prior to the latest Termination Date applicable to Lenders having Commitments in an amount equal to
or exceeding the available undrawn amount of all Letters of Credit after giving effect to the issuance of such Letter of Credit.
(iii) Each
request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that
the Letter of Credit so requested to be issued or amended complies with the conditions set forth in the preceding clause (ii). The Issuing
Bank may, in its sole discretion, extend such Letter of Credit, and such extension shall in any case be subject to the conditions specified
herein. Within the limits referred to above, the Borrower may from time to time request the issuance of Letters of Credit under this
Section 2.01(c).
(iv) Each
letter of credit listed on Schedule 2.01(c) shall be deemed to constitute a Letter of Credit issued hereunder, and each Lender that
is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed to be an Issuing Bank hereunder for each
such letter of credit, provided than any extension or replacement of any such letter of credit shall be issued by an Issuing Bank
pursuant to the terms of this Agreement.
SECTION 2.02. Making the Revolving Credit
Advances. (a) Each Borrowing (other than a Borrowing resulting from a drawing under a Letter of Credit) shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Term SOFR Advances, or the Business Day of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Paying Agent, which shall give to each Lender prompt notice thereof by telecopier.
Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in writing,
or telecopier in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Term SOFR Advances, initial Interest Period for each such Revolving Credit Advance. In addition, the Borrower may request
that a Revolving Credit Advance be made as a Certain Funds Advance. If the Borrower requests a Revolving Credit Advance but fails to
specify whether it is a Certain Funds Advance, such Revolving Credit Advance will be deemed not to be a Certain Funds Advance. Each Lender
shall, before 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Lending Office
to the Paying Agent at the Paying Agent’s Office, in same day funds, such Lender’s ratable portion of such Borrowing. After
the Paying Agent’s receipt of such funds and upon the fulfillment of the conditions set forth in Section 3.02, the Paying
Agent will make such funds available to the Borrower at its account notified to the Paying Agent at the Paying Agent’s address
referred to in Section 8.02; provided, however, that if, on the date the Notice of Borrowing with respect to such
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.
(b) Anything
in subsection (a) above or Section 2.09 to the contrary notwithstanding, there shall not be more than ten Interest Periods
in effect.
(c) Except
as otherwise provided in this Agreement, each Notice of Borrowing shall be irrevocable and binding on the Borrower; provided, however,
that any Notice of Borrowing may be conditioned on the occurrence of any event, in which case such notice may be revoked by the Borrower
(by notice delivered to the Paying Agent on or prior to the date of the proposed Borrowing) if such condition is not satisfied (it being
understood that any revocation of a Notice of Borrowing shall be subject to the provisions in the succeeding sentence). In respect of
any Borrowing comprised of or including Term SOFR Advances specified in such Notice of Borrowing, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender solely as a result of any failure by the Borrower to borrow on the date specified
in the Notice of Borrowing for such Borrowing, including any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Term SOFR Advance to be made
by such Lender as part of such Borrowing when such Term SOFR Advance, solely as a result of such failure, is not made on such date. Without
prejudice to the survival of any other provision of this Agreement, the provisions of this paragraph shall survive any termination of
this Agreement.
(d) Unless
the Paying Agent shall have received notice from a Lender prior to the date of any Borrowing (or in the case of a Base Rate Borrowing,
prior to 12:00 noon (New York City time) on the date of such Borrowing) that such Lender will not make available to the Paying Agent
such Lender’s ratable portion of such Borrowing, the Paying Agent may assume that such Lender has made such portion available to
the Paying Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Paying Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such
Lender shall not have so made available to the Paying Agent on the date of any Borrowing such Lender’s ratable portion of such
Borrowing, such Lender agrees, and the Borrower agrees, to pay or repay to the Paying Agent forthwith on demand such amount together
with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is paid or
repaid to the Paying Agent, at (i) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the
Paying Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Paying Agent in connection with the foregoing and (ii) in the case of the Borrower, the rate applicable
to such Borrowing (provided that such payment at the Federal Funds Rate with respect to any Term SOFR Advance shall not affect
the status of such Advance as a Term SOFR Advance). If such Lender shall pay to the Paying Agent such amount, the amount so paid shall
constitute such Lender’s Revolving Credit Advance as part of such Borrowing for purposes of this Agreement from and including the
date of such Borrowing.
(e) The
failure of any Lender to make the Revolving Credit Advance to be made by it as part of any Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Revolving Credit Advance on the date of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Revolving Credit Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and
Reimbursement Under Letters of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the proposed
Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing Bank and the Paying Agent may agree), by the Borrower
to any Issuing Bank, and such Issuing Bank shall give the Paying Agent prompt notice thereof. Each such notice by the Borrower of Issuance
of a Letter of Credit (a “Notice of Issuance”) shall be by telecopier or telephone, confirmed immediately in writing,
in substantially the form of Exhibit A-2, specifying therein the requested (A) date of such Issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit and (D) name and address
of the beneficiary of such Letter of Credit, such Letter of Credit shall be issued pursuant to such application and agreement for letter
of credit as such Issuing Bank and the Borrower shall agree for use in connection with such requested Letter of Credit (a “Letter
of Credit Agreement”). If the requested form of such Letter of Credit is acceptable to such Issuing Bank in its reasonable
discretion (it being understood that any such form shall have only explicit documentary conditions to draw and shall not include discretionary
conditions), such Issuing Bank will confirm with the Paying Agent (by telephone or in writing) that the Paying Agent has received a copy
of applicable Notice of Issuance from the Borrower and, if not, such Issuing Bank will provide the Paying Agent with a copy thereof.
Unless the applicable Issuing Bank has received written notice from any Lender or the Paying Agent, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 3.02
shall not then be satisfied, then, subject to the terms and conditions hereof, such Issuing Bank shall, upon fulfillment of the applicable
conditions set forth in Section 3.02, make such Letter of Credit available to the Borrower as agreed with the Borrower in connection
with such issuance; provided that, if any Lender is a Defaulting Lender and to the extent that any Defaulting Lender has Fronting
Exposure that cannot be reallocated in accordance with Section 2.21(a)(iv), the Issuing Banks shall not be required to issue, amend,
extend or increase any Letter of Credit unless the applicable Issuing Bank has entered into arrangements satisfactory to it and the Borrower
to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit of such Defaulting Lender that has
not been so reallocated, including by Cash Collateralizing such Defaulting Lender’s non-reallocated Fronting Exposure at such time
on terms reasonably satisfactory to the applicable Issuing Bank. In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.
Each Issuing Bank shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents associated therewith, and such Issuing Bank shall have all of the
benefits and immunities (A) provided to the Paying Agent in Article VII with respect to any acts taken or omissions suffered
by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Letter of Credit Documents
pertaining to such Letters of Credit as fully as if the term “Paying Agent” as used in Article VII included such Issuing
Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to such Issuing Bank.
(b) Participations.
By the Issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing or decreasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Ratable Share of
the Available Amount of such Letter of Credit. The Borrower hereby agrees to each such participation. In consideration and in furtherance
of the foregoing, in accordance with Section 2.03(c), each Lender hereby absolutely and unconditionally agrees to pay to the Paying
Agent, for the account of such Issuing Bank, such Lender’s Ratable Share of each drawing made under a Letter of Credit funded by
such Issuing Bank and not reimbursed by the Borrower on the date made, which amount will be advanced, and deemed to be a Base Rate Advance
to the Borrower hereunder, regardless of the satisfaction of the conditions set forth in Section 3.02. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender further acknowledges and agrees that its participation in each
Letter of Credit will be automatically adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of
Credit at each time any Lender’s Commitment is increased pursuant to the Acorn Closing Date Additional Commitments or otherwise
amended pursuant to a Commitment Increase in accordance with Section 2.19, an assignment in accordance with Section 8.06 or
otherwise pursuant to this Agreement.
(c) Drawing
and Reimbursement. (i) The payment by an Issuing Bank of a draft drawn under any Letter of Credit which is not reimbursed by
the Borrower on the date made shall constitute for all purposes of this Agreement the making by any such Issuing Bank of an Advance,
which shall be a Base Rate Advance, in the amount of such draft, without regard to minimum and multiples specified in Section 2.01(a) for
the principal amount of Base Rate Advances, but subject to the conditions set forth in Section 3.02, and without regard to whether
the making of such an Advance would exceed such Issuing Bank’s Unused Commitment. Each Issuing Bank shall give prompt notice of
each drawing under any Letter of Credit issued by it to the Borrower and the Paying Agent. Upon written demand by such Issuing Bank,
with a copy of such demand to the Paying Agent and the Borrower, each Lender shall pay to the Paying Agent such Lender’s Ratable
Share of such outstanding Advance. Each Lender acknowledges and agrees that its obligation to make Advances pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Promptly
after receipt thereof, the Paying Agent shall transfer such funds to such Issuing Bank. Each Lender agrees to fund its Ratable Share
of an outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank, provided that notice
of such demand is given not later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such time. If and to the extent that any Lender shall not have
so made the amount of such Advance available to the Paying Agent, such Lender agrees to pay to the Paying Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is paid
to the Paying Agent, at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Issuing Bank in
accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by such Issuing Bank in connection with the foregoing, for the account of such Issuing Bank. If such Lender shall pay to the
Paying Agent such amount for the account of any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall
constitute an Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of
the Advance made by such Issuing Bank shall be reduced by such amount on such Business Day. A certificate of the applicable Issuing Bank
submitted to any Lender (through the Paying Agent) with respect to any amounts owing under this subsection (c) shall be conclusive
absent manifest error.
(ii) With
respect to any unreimbursed drawing under a Letter of Credit that is not fully refinanced by a Borrowing of Base Rate Advances because
the conditions set forth in Section 3.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred
from the applicable Issuing Bank an L/C Borrowing in the amount of such unreimbursed amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall bear interest at the Base Rate (plus the Applicable Margin). In
such event, each Lender’s payment to the Paying Agent for the account of the applicable Issuing Bank pursuant to this Section 2.03(c) shall
be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.03.
(iii) Until
a Lender funds its Revolving Credit Advance or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable
Issuing Bank for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Ratable Share of such amount
shall be solely for the account of such Issuing Bank.
(iv) At
any time after the applicable Issuing Bank has made a payment under any Letter of Credit and has received from any Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.03(c)(i), if the Paying Agent receives for the account of an
Issuing Bank any payment in respect of the related unreimbursed amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Paying Agent), the Paying Agent will distribute to such Lender its Ratable
Share thereof in the same funds as those received by the Paying Agent.
(v) If
any payment received by the Paying Agent for the account of an Issuing Bank pursuant to Section 2.03(c)(i) is required to be
returned because it its invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by such Issuing Bank in its discretion) to be repaid to a trustee, receiver or any other party in connection with any proceeding
under any debtor relief law or otherwise, each Lender shall pay to the Paying Agent for the account of such Issuing Bank its Ratable
Share thereof on demand of the Paying Agent, plus interest thereon from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Advances and the termination of this Agreement.
(d) Letter
of Credit Reports. Each Issuing Bank shall furnish (i) to the Paying Agent (with a copy to the Borrower) on the first Business
Day after the issuance, expiration, drawing or change of Available Amount of any Letter of Credit, a report in the form of Exhibit E
hereto or such other form as is reasonably acceptable to the Paying Agent and (ii) to the Paying Agent (with a copy to the Borrower)
on the first Business Day of each month a written report summarizing Issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the preceding month and drawings during such month under all Letters of Credit.
(e) Failure
to Make Advances. The failure of any Lender to make the Advance to be made by it on the date specified in Section 2.03(c) shall
not relieve any other Lender of its obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date.
(f) Applicability
of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a
Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of either
the ISP or the UCP, as applicable, shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply
to each commercial Letter of Credit. Notwithstanding the foregoing, no Issuing Bank shall be responsible to the Borrower for, and no
Issuing Bank’s rights and remedies against the Borrower shall be impaired by, any action or inaction of such Issuing Bank required
or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement,
including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP
or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the
Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International
Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(g) Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations
of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder
for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the
account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from
the businesses of such Subsidiaries.
SECTION 2.04. Fees. (a) Commitment
Fees. The Borrower agrees to pay to the Paying Agent for distribution to each Lender until the Termination Date applicable to such
Lender a commitment fee (the “Commitment Fee”) with respect to such Lender’s Unused Commitment, at a rate per
annum equal to the Commitment Fee Percentage from time to time in effect on the amount of such Lender’s Unused Commitment. For
purposes of this Section 2.04(a), each Lender’s Unused Commitment shall include such Lender’s Acorn Closing Date Additional
Commitment from the date that is 60 days after the Effective Date until such Acorn Closing Date Additional Commitments are terminated
in accordance with this Agreement. The Commitment Fees will commence to accrue on the Effective Date and will be payable in arrears (i) on
the third day of each January, April, July and October and (ii) on the Termination Date applicable to such Lender.
(b) Paying
Agent’s Fees. The Borrower agrees to pay to the Paying Agent, for its own account, such fees as may from time to time be agreed
between the Borrower and the Paying Agent.
(c) Letter
of Credit Fees. (i) Upon the issuance, extension or renewal of each Letter of Credit by an Issuing Bank, the Borrower
agrees to pay to such Issuing Bank (A) customary issuance fees in an amount to be agreed upon between such Issuing Bank and the
Borrower, payable on the date of such issuance (or on such other date as may be agreed upon by such Issuing Bank and the Borrower) and
(B) a fronting fee in an amount and to be paid at the times as may be agreed in writing by and between the Borrower and the applicable
Issuing Bank, which amount shall not exceed 0.125% per annum on the average daily amount of the Letter of Credit Obligations (excluding
any portion thereof attributable to obligations described in clause (b) of the definition thereof) 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 Letter of Credit Obligations.
(ii) The
Borrower agrees to pay to the Paying Agent, for the ratable benefit of the Lenders (determined in accordance with the respective amounts
of their Commitments), a letter of credit fee at the Applicable Margin applicable to Term SOFR Advances on the maximum Available Amount
of outstanding Letters of Credit issued pursuant to Section 2.01(c) for the account of the Borrower, in each case payable quarterly
in arrears on the third day of each January, April, July and October after the date of issuance until the date each such Letter
of Credit shall expire or terminate in accordance with its terms and on the date of such expiration or termination; provided,
however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to
which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable Issuing Bank pursuant to this Section 2.04(c) shall
be payable, to the maximum extent permitted by applicable law, to the other Lenders in accordance with the upward adjustments in their
respective Ratable Shares allocable to such Letter of Credit pursuant to Section 2.21(a)(iv), with the balance of such fee, if any,
payable to the applicable Issuing Bank for its own account. If there is any change in the Applicable Margin during any quarter, the daily
amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each
period during such quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary contained herein, upon
the request of the Required Lenders, while any Event of Default exists, all Letter of Credit fees payable under this clause (ii) shall
accrue at the Default Rate.
(d) Transfer
Fee; Amendment Fee. (i) The Borrower agrees to pay to each Issuing Bank, upon each transfer or amendment of a Letter
of Credit issued for the account of the Borrower, the normal and customary transfer fee or amendment fee, as the case may be (or such
other fee as the Borrower and such Issuing Bank may agree upon), charged by such Issuing Bank upon the transfer or amendment of letters
of credit.
(e) Letter
of Credit Expenses. The Borrower agrees to pay to each Issuing Bank, on demand, sums equal to any and all reasonable charges such
Issuing Bank may assess, and expenses that such Issuing Bank may pay or incur, relative to the issuance by such Issuing Bank of any Letter
of Credit issued for the account of the Borrower or to presentment to, or to a payment by, the Issuing Bank thereunder.
SECTION 2.05. Termination or Reduction of
the Commitments. (a) The Commitment of each Lender shall be automatically terminated on the Termination Date applicable
to such Lender.
(b) The
Borrower shall have the right, upon at least three Business Days’ notice to the Paying Agent, to terminate in whole or permanently
reduce ratably in part (in a minimum principal amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof), the Unused
Commitments, including, on and after the Effective Date, the Acorn Closing Date Additional Commitments. Each such reduction or termination
shall be applied among the Lenders’ Unused Commitments in accordance with each Lender’s Ratable Share thereof; provided
that, notwithstanding the foregoing, prior to the Acorn Closing Date Additional Commitment Availability Date, the Borrower may reduce
the then-existing Commitments (excluding the Acorn Closing Date Additional Commitments) and/or the Acorn Closing Date Additional Commitments
in such proportions as the Borrower may elect as its sole discretion, so long as such reduction is allocated ratably among the Lenders
holding such then-existing Commitments (excluding the Acorn Closing Date Additional Commitments) and/or the Acorn Closing Date Additional
Commitments, as applicable.
(c) The
Letter of Credit Sublimit shall not be reduced until such time as the Commitments shall equal such Letter of Credit Sublimit, and thereafter
shall reduce proportionately with any reduction in the amount of the Commitments pursuant to this Section 2.05.
(d) The
Acorn Closing Date Additional Commitments shall automatically terminate on the Acorn Closing Date Additional Commitment Termination Date,
unless the Acorn Closing Date Additional Commitment Availability Date shall have occurred on or prior thereto. Any termination of the
Acorn Closing Date Additional Commitments pursuant to this Section 2.05(d) shall be permanent. The Borrower shall notify the
Paying Agent upon the termination of the Acorn Closing Date Additional Commitments pursuant to this Section 2.05(d) and the
Paying Agent shall promptly notify each applicable Lender upon receipt of such notice.
SECTION 2.06. Repayment of Revolving Credit
Advances. The Borrower shall repay to the Paying Agent for the account of each Lender on the Termination Date applicable to such
Lender the aggregate principal amount of the Revolving Credit Advances owing to such Lender on such date.
SECTION 2.07. Interest on Revolving Credit
Advances. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Revolving Credit
Advance owing to each Lender from the date of such Revolving Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base
Rate Advances. During such periods as such Revolving Credit Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin, payable quarterly in arrears on the
third day of each January, April, July and October and on the date such Base Rate Advance shall be Converted into a Term SOFR
Advance or paid in full.
(ii) Term
SOFR Advances. During such periods as such Revolving Credit Advance is a Term SOFR Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) Term SOFR for such Interest Period plus (y) the Applicable Margin,
payable on the last day of each Interest Period and, if such Interest Period has a duration of six months, on each day that occurs during
such Interest Period every three months from the first day of such Interest Period.
(b) Default
Interest. Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a) or (e), the Paying
Agent shall, and upon the occurrence and during the continuance of any other Event of Default, the Paying Agent may, and upon the request
of the Required Lenders shall, require, the Borrower to pay interest (“Default Interest”) on (i) the unpaid principal
amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) of this
Section 2.07, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i) or (a)(ii) of this Section 2.07 and (ii) the amount of any interest, fee or other amount
payable hereunder or any other Loan Document that is not paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) of this Section 2.07
(the “Default Rate”), provided, however, that following acceleration of the Advances pursuant to Section 6.01,
Default Interest shall accrue and be payable whether or not previously required by the Paying Agent.
SECTION 2.08. Changed Circumstances.
(a) Circumstances
Affecting Benchmark Availability. Subject to clause (c) below, in connection with any request for a Term SOFR Advance or a conversion
to or continuation thereof or otherwise, if for any reason (i) the Paying Agent shall determine (which determination shall be conclusive
and binding absent manifest error) that reasonable and adequate means do not exist for ascertaining Term SOFR for the applicable Interest
Period with respect to a proposed Term SOFR Advance on or prior to the first day of such Interest Period or (ii) the Required Lenders
shall determine (which determination shall be conclusive and binding absent manifest error) that Term SOFR does not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Advances during such Interest Period and, in the case of clause (ii),
the Required Lenders have provided notice of such determination to the Paying Agent, then, in each case, the Paying Agent shall promptly
give notice thereof to the Borrower. Upon notice thereof by the Paying Agent to the Borrower, any obligation of the Lenders to make Term
SOFR Advances, and any right of the Borrower to convert any Advance to or continue any Advance as a Term SOFR Advance, shall be suspended
(to the extent of the affected Term SOFR Advances or the affected Interest Periods) until the Paying Agent (with respect to clause (ii),
at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending
request for a borrowing of, conversion to or continuation of Term SOFR Advances (to the extent of the affected Term SOFR Advances or
the affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request
for a borrowing of or conversion to Base Rate Advances in the amount specified therein and (B) any outstanding affected Term SOFR
Advances will be deemed to have been converted into Base Rate Advances at the end of the applicable Interest Period. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts
required pursuant to Section 8.03(c).
(b) [Reserved].
(c) Benchmark
Replacement Setting.
(i) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition
Event, the Paying Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement.
Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th)
Business Day after the Paying Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Paying
Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No
replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.08(c)(i) will occur prior to the applicable
Benchmark Transition Start Date.
(ii) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Paying Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect
to any such amendment effected, the Paying Agent shall post each such amendment implementing such Conforming Changes to the Borrower
and the Lenders reasonably promptly after such amendment becomes effective.
(iii) Notices;
Standards for Decisions and Determinations. The Paying Agent will promptly notify the Borrower and the Lenders of (A) the implementation
of any Benchmark Replacement and (B) the effectiveness of any Conforming Changes in connection with the use, administration, adoption
or implementation of a Benchmark Replacement. The Paying Agent will promptly notify the Borrower of the removal or reinstatement of any
tenor of a Benchmark pursuant to Section 2.08(c)(iv). Any determination, decision or election that may be made by the Paying Agent
or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.08(c), including any determination with respect to
a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain
from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their 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 2.08(c).
(iv) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection
with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR Reference
Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such
rate from time to time as selected by the Paying Agent in its reasonable discretion or (2) the regulatory supervisor for
the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such
Benchmark is not or will not be representative, then the Paying Agent may modify the definition of “Interest Period” (or
any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative
tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen
or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement
that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Paying Agent may modify the
definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time
to reinstate such previously removed tenor.
(v) Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (A) the
Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Term SOFR Advances to be made, converted
or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request
into a request for a borrowing of or conversion to Base Rate Advances and (B) any outstanding affected Term SOFR Advances will be
deemed to have been converted to Base Rate Advances at the end of the applicable Interest Period. During any Benchmark Unavailability
Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon
the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
SECTION 2.09. Conversion of Revolving Credit
Advances. (a) The Borrower may on any Business Day, upon notice given to the Paying Agent not later than 11:00 a.m. (New York
City time) on the third Business Day prior to the date of the proposed Conversion, and subject to the provisions of Sections 2.02(b),
2.08, 2.09(d) and 2.11(c), Convert all or any Revolving Credit Advances of one Type into Advances of the other Type; provided,
however, that (i) except as provided in Section 2.11(d), any Conversion of any Term SOFR Advances into Base Rate Advances
shall be made on, and only on, the last day of an Interest Period for such Term SOFR Advances, (ii) the Borrower may not Convert
any Base Rate Advances into Term SOFR Advances unless such Base Rate Advances are in an aggregate amount not less than $10,000,000 and
(iii) no conversion of any Revolving Credit Advances shall result in more separate Interests periods than permitted under Section 2.02(b).
Each such Notice of Conversion/Continuation shall, within the restrictions specified above, specify (i) the date of such Conversion,
(ii) the Type and aggregate amount of Advances to be Converted and (iii) if such Conversion is into Term SOFR Advances, the
duration of the Interest Period for such Advances.
(b) Each
Notice of Conversion/Continuation shall be irrevocable and binding on the Borrower and, in respect of any Notice of Conversion/Continuation
to Term SOFR Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender solely as a
result of any failure to Convert on the date specified in such notice, including any loss (including loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Term
SOFR Advance to be made by such Lender as part of such Conversion when such Term SOFR Advance, solely as a result of such failure, is
not made on such date. Without prejudice to the survival of any other provision of this Agreement, the provisions of this paragraph shall
survive any termination of this Agreement.
(c) On
the date on which the aggregate unpaid principal amount of Term SOFR Advances having the same Interest Period shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances.
(d) Upon
the occurrence of any Default and so long as such Default shall continue, (i) each Term SOFR Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders
to make, or to Convert any Advances into, Term SOFR Advances shall be suspended.
SECTION 2.10. Prepayments. (a)
Optional Prepayments. The Borrower may, upon at least two Business Days’ notice in the case of Term SOFR Advances, and upon
at least one Business Day’s notice in the case of Base Rate Advances, to the Paying Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (i) each partial prepayment pursuant to this Section 2.10
shall be in an aggregate principal amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) in the event
of any such prepayment of a Term SOFR Advance, such prepayment shall either be made on the last day of an Interest Period for such Term
SOFR Advance or shall be made together with payment of all amounts required pursuant to Section 8.03(c).
(b) Mandatory
Prepayments. The Borrower shall, on each Business Day, pay to the Paying Agent for deposit in the Letter of Credit Collateral Account
an amount sufficient to cause the aggregate amount on deposit in such account to equal the amount by which the aggregate maximum Available
Amount of Letters of Credit then outstanding exceeds the Letter of Credit Sublimit on such Business Day.
SECTION 2.11. Increased Costs; Illegality.
(a) If, due to either (i) the introduction of or any change (including any change by way of imposition or increase
of reserve requirements) in or change in the interpretation of any law or regulation or (ii) the compliance with any guideline or
request from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining Term SOFR Advances, other than (A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes,
then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Paying Agent), pay to the Paying
Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrower and the Paying Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If
any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to
be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital or liquidity is increased
by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type or of the Letters
of Credit (or similar contingent obligations), then, upon demand by such Lender (with a copy of such demand to the Paying Agent), the
Borrower shall pay to the Paying Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such circumstances, to the extent that such Lender reasonably determines such increase
in capital or liquidity to be allocable to the existence of such Lender’s commitment to lend hereunder or to the issuance or maintenance
of the Letters of Credit. A certificate as to such amounts, submitted to the Borrower and the Paying Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(c) If,
due to either (i) the introduction of or any change in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to any Issuing Bank or any Lender of agreeing to issue or of issuing or maintaining any Letter of Credit
or any participation therein, then the Borrower shall from time to time, upon demand by such Issuing Bank or Lender (with a copy of such
demand to the Paying Agent), pay to the Paying Agent for the account of such Issuing Bank or such Lender, as the case may be, additional
amounts sufficient to compensate such Issuing Bank or such Lender, as the case may be, for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Borrower and the Paying Agent by such Issuing Bank or such Lender, as the case may be,
shall be conclusive and binding for all purposes, absent manifest error.
(d) Notwithstanding
any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall
make it unlawful, as reasonably determined by any Lender, or any central bank or other Governmental Authority shall assert that it is
unlawful, for such Lender or its Lending Office to perform its obligations hereunder to make Term SOFR Advances or to continue to fund
or maintain Term SOFR Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Paying
Agent, (i) the obligation of such Lender to make Term SOFR Advances and to Convert Advances into Term SOFR Advances shall terminate
and (ii) the Borrower shall forthwith Convert all Term SOFR Advances of such Lender then outstanding into Base Rate Advances in
accordance with Section 2.09, except that such Conversion may occur, notwithstanding Section 2.09, other than on the last day
of the respective Interest Periods for such Term SOFR Advances, if the Borrower has paid all amounts payable under Section 8.03(c).
(e) For
the avoidance of doubt and notwithstanding anything herein to the contrary, for the purposes of this Section 2.11, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives
thereunder or issued in connection therewith (whether or not having the force of law) and (y) all requests, rules, regulations,
guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority ) or the applicable United States or foreign regulatory authorities (whether or not having the
force of law), in case for this clause (y) pursuant to Basel III, shall in each case be deemed to be a change in law regardless
of the date enacted, adopted, issued, promulgated or implemented.
(f) Without
prejudice to the survival of any other provision of this Agreement, the provisions of this Section 2.11 shall survive any termination
of this Agreement.
SECTION 2.12. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes, if any, without condition or deduction for counterclaim,
defense, recoupment or setoff, not later than 12:00 noon (New York City time) on the day when due in U.S. dollars to the Paying
Agent at the Paying Agent’s Office in same day funds. The Paying Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest, Letter of Credit fees payable pursuant to Section 2.04(c)(ii) or Commitment
Fees ratably (other than amounts payable pursuant to Section 2.04(b), 2.04(c)(i), 2.04(d), 2.11, 2.14, 2.17 or 8.03(c)) to the Lenders
for the account of their respective Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon
any Assuming Lender becoming a Lender hereunder as a result of an extension of the Termination Date pursuant to Section 2.17 or
as a result of a Commitment Increase pursuant to Section 2.19, and upon the Paying Agent’s receipt of such Lender’s
Assumption Agreement and recording of the information contained therein in the Register, from and after the applicable Extension Date,
the Paying Agent shall make all payments hereunder and under any Notes issued in connection therewith in respect of the interest assumed
thereby to the Assuming Lender. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.06(c), from and after the effective date specified in such Assignment and Acceptance, the
Paying Agent shall make all payments hereunder and under the Notes, if any, in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) The
Borrower hereby authorizes (i) each Issuing Bank on behalf of each Lender, if and to the extent payment owed to such Lender is not
made by the Borrower to the Paying Agent when due hereunder, to charge from time to time against any or all of the Borrower’s accounts
with such Issuing Bank any amount so due and (ii) each Lender, if and to the extent payment is not made when due hereunder, to charge
from time to time against any or all of the Borrower’s accounts with such Lender any amount so due to such Lender prior to any
sharing under Section 2.13. Nothing contained in this subsection (b) shall impair the obligations of any Lender under Section 2.13,
the rights of the Paying Agent or any Lender under Section 8.04 or any other rights and remedies (including other rights of set-off)
that the Paying Agent or such Lender may have.
(c) All
computations of interest based on the Base Rate (including when determined by reference to Term SOFR or the Federal Funds Rate) shall
be made by the Paying Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
Term SOFR and fees shall be made by the Paying Agent on the basis of a year of 360 days, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such interest or commitment fees are payable (which results
in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Advance
for the day on which the Advance is made, and shall not accrue on an Advance, or any portion thereof, for the day on which the Advance
or such portion is paid, provided that any Advance that is repaid on the same day on which it is made shall bear interest for
one day. Each determination by the Paying Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever
any payment hereunder or under the Notes, if any, shall be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of
interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal
of Term SOFR Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless
the Paying Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Paying Agent may assume that the Borrower has made such payment in full to
the Paying Agent on such date and the Paying Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender.
SECTION 2.13. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Revolving Credit Advances made by it in excess of its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Revolving Credit
Advances made to the other Lenders as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each
of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and each such other Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to each such other Lender’s ratable share (according to the
proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered
and (b) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the
Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the
existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.20,
or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving
Credit Advances or subparticipations in Fronted L/C Obligations to any assignee or participant, other than an assignment to the Borrower
or any Affiliate thereof (as to which the provisions of this Section shall apply). The Borrower agrees that any Lender so purchasing
a participation from another Lender may, pursuant to this Section 2.13, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor
of the Borrower in the amount of such participation.
SECTION 2.14.
Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower
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 Borrower 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 2.14)
the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment
of Other Taxes by Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law,
or at the option of the Paying Agent timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification
by Borrower. The Borrower shall indemnify each Recipient, within 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 2.14)
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. Notwithstanding the foregoing, in the case of any Taxes not required by law to be deducted by the Borrower
from or in respect of any sum payable hereunder to any Recipient, payment under this indemnification must be made by the Borrower only
if such written demand has been made within 60 days from the date on which such Recipient makes payment of the Taxes to the relevant
Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower
by a Lender (with a copy to the Paying Agent), or by the Paying Agent on its own behalf or on behalf of a Lender, accompanied by a written
statement thereof setting forth in reasonable detail the basis and calculation of such amounts shall be conclusive absent manifest error.
(d) Indemnification
by the Lenders. Each Lender shall severally indemnify the Paying Agent, within 10 days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Paying Agent
for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s
failure to comply with the provisions of Section 8.06(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 Paying 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 Paying Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Paying Agent to set off and apply any
and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Paying Agent to the Lender from
any other source against any amount due to the Paying Agent under this clause (d).
(e) Evidence
of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided in this Section 2.14,
the Borrower shall deliver to the Paying Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory
to the Paying Agent.
(f) Status
of Lenders; Tax Documentation.
(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 Paying Agent, at the time or times reasonably requested by the Borrower or the Paying Agent, such properly
completed and executed documentation reasonably requested by the Borrower or the Paying 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 Paying
Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Paying Agent
as will enable the Borrower or the Paying 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 2.14(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.
(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 Paying 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 Paying Agent), executed
copies 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 Paying 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 Paying Agent), whichever of the following is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, 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-E (or W-8BEN, 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) executed
copies of IRS Form W-8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal
Revenue Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation”
described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and
(y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-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 F-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 Paying 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 Paying 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 Paying 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 Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Paying Agent at the time or times prescribed
by law and at such time or times reasonably requested by the Borrower or the Paying Agent such documentation prescribed by applicable
law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably
requested by the Borrower or the Paying Agent as may be necessary for the Borrower and the Paying 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.
(iii) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 2.14 expires or becomes obsolete
or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Paying Agent in writing
of its legal inability to do so.
(g) Treatment
of Certain Refunds. Unless required by applicable laws, at no time shall the Paying Agent have any obligation to file for or otherwise
pursue on behalf of a Lender or any Issuing Bank, or have any obligation to pay to any Lender or any Issuing Bank, any refund of Taxes
withheld or deducted from funds paid for the account of such Lender or such Issuing Bank, as the case may be. If any Recipient 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 by the
Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.14, it shall pay to the Borrower
an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred
by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of the Recipient, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required
to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no event will the
applicable Recipient be required to pay any amount to the Borrower pursuant to this clause (g) the payment of which would place
the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification
and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. Such Recipient shall, at the Borrower’s request, provide the Recipient with a copy
of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided
that such Recipient may redact any information therein that such Recipient deems confidential). This subsection shall not be construed
to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the Borrower or any other Person.
(h) Survival.
Each party’s obligations under this Section 2.14 shall survive the resignation or replacement of the Paying Agent or
any assignment of rights by, or the replacement of, a Lender or an Issuing Bank, the termination of the Commitments and the repayment,
satisfaction or discharge of all other obligations of the Borrower under the Loan Documents.
SECTION 2.15. Evidence of Debt. (a)
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 Advance owing to such Lender from time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy
of such notice to the Paying Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate
in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made
by, such Lender, the Borrower shall promptly execute and deliver to such Lender a promissory note or other evidence of indebtedness,
in form and substance reasonably satisfactory to the Borrower and such Lender (each a “Note”), payable to the order
of such Lender in a principal amount equal to the Commitment of such Lender.
(b) The
Register maintained by the Paying Agent pursuant to Section 8.06(c) shall include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder,
the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder, and (iv) the amount of any sum received by the Paying Agent from the
Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Paying Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or
to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts,
such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Paying Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise
affect the obligations of the Borrower under this Agreement.
SECTION 2.16. Use of
Proceeds. The proceeds of the Advances (other than the Certain Funds Advance) shall be available (and the Borrower agrees that it
shall use such proceeds) for general corporate purposes of the Borrower and its Subsidiaries. The proceeds of the Certain Funds Advances
shall be available (and the Borrower agrees that it shall use such proceeds) to fund a portion of the cash consideration for the Acorn
Acquisition and to pay fees and expenses incurred in connection with the Acorn Transactions. Neither the Borrower nor any of its Subsidiaries
shall use the proceeds of any Borrowing or Letter of Credit 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. Neither the Borrower
nor any of its Subsidiaries shall use the proceeds of any Borrowing or Letter of Credit (x) for the purpose of financing any activities,
business or transaction of or with any Sanctioned Person or a Person known by the Borrower to be controlled by a Sanctioned Person, or
in any Sanctioned Country, except where such activities, business or transaction could be conducted legally by a U.S. Person or (y) in
any other manner that would result in a violation of Sanctions by any Lender.
SECTION 2.17. Extension of Termination Date.
(a) At least 30 days prior to any date so designated by the Borrower as an “Extension Date” (but not more than
twice), the Borrower, by written notice to the Paying Agent, may request an extension of the Termination Date in effect at such time
by one year from its then scheduled expiration; provided that the Termination Date as so extended shall at no time be later than
five years after any date of determination. The Paying Agent shall promptly notify each Lender of such request, and each Lender shall
in turn, in its sole discretion, at least 20 days prior to such Extension Date, notify the Borrower and the Paying Agent in writing as
to whether such Lender will consent to such extension. If any Lender shall fail to notify the Paying Agent and the Borrower in writing
of its consent to any such request for extension of the Termination Date at least 20 days prior to the scheduled occurrence thereof at
such time, such Lender shall be deemed to be a Non-Consenting Lender with respect to such request. The Paying Agent shall notify the
Borrower not later than 15 days prior to the pending Extension Date of the decision of the Lenders regarding the Borrower’s request
for an extension of the Termination Date.
(b) If
all of the Lenders consent in writing to any such request in accordance with subsection (a) of this Section 2.17, the Termination
Date in effect at such time shall, effective as at the Extension Date, be extended for one calendar year; provided that on each
Extension Date, no Default shall have occurred and be continuing, or shall occur as a consequence thereof and the giving of a request
for extension shall constitute a representation and warranty by the Borrower that the representations and warranties contained in Section 4.01
are correct in all material respects (except for those representations and warranties that are already qualified by materially or Material
Adverse Effect, which will not further be qualified by materiality) on and as of the date of such notice and on such Extension Date,
as though made on and as of such dates. If Lenders holding at least a majority in interest of the aggregate Commitments at such time
consent in writing to any such request in accordance with subsection (a) of this Section 2.17, the Termination Date in effect
at such time shall, effective as at the applicable Extension Date, be extended as to those Lenders that so consented (each a “Consenting
Lender”) but shall not be extended as to any other Lender (each a “Non-Consenting Lender”). To the extent
that the Termination Date is not extended as to any Lender pursuant to this Section 2.17 and the Commitment of such Lender is not
assumed in accordance with subsection (c) of this Section 2.17 on or prior to the applicable Extension Date, the Commitment
of such Non-Consenting Lender shall automatically terminate in whole on such unextended Termination Date without any further notice or
other action by the Borrower, such Lender or any other Person; provided that such Non-Consenting Lender’s rights under Sections
2.11, 2.14 and 8.03, and its obligations under Sections 7.05 and 8.07, shall survive the Termination Date for such Lender as to matters
occurring prior to such date. It is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request
made by the Borrower for any requested extension of the Termination Date.
(c) If
Lenders holding at least a majority in interest of the aggregate Commitments at any time consent to any such request pursuant to subsection
(a) of this Section 2.17, the Borrower may arrange for one or more Consenting Lenders or other Eligible Assignees (each such
Eligible Assignee that accepts an offer to assume a Non-Consenting Lender’s Commitment as of the applicable Extension Date and
each Eligible Assignee that agrees to become a Lender hereunder pursuant to Section 2.19(c), being an “Assuming Lender”)
to assume, effective as of the Extension Date, any Non-Consenting Lender’s Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such Non-Consenting Lender; provided,
however, that the amount of the Commitment of any such Assuming Lender as a result of such substitution shall in no event be less
than $10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is less than $10,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:
(i) any
such Consenting Lender or Assuming Lender shall have paid to such Non-Consenting Lender (A) the aggregate principal amount of, and
any interest accrued and unpaid to the effective date of the assignment on, the outstanding Revolving Credit Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid Commitment Fees and fees pursuant to Section 2.04(c)(ii) owing
to such Non-Consenting Lender as of the effective date of such assignment;
(ii) all
additional costs reimbursements, expense reimbursements and indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have been paid to
such Non-Consenting Lender; and
(iii) with
respect to any such Assuming Lender, the applicable processing and recordation fee required under Section 8.06(b) for such
assignment shall have been paid;
provided
further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.03, and its obligations under Sections
7.05 and 8.07, shall survive such substitution as to matters occurring prior to the date of substitution. At least three Business Days
prior to any Extension Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Paying Agent an
assumption agreement, in form and substance satisfactory to the Borrower and the Paying Agent (an “Assumption Agreement”),
duly executed by such Assuming Lender, the Borrower and the Paying Agent, (B) any such Consenting Lender shall have delivered confirmation
in writing satisfactory to the Borrower and the Paying Agent as to the increase in the amount of its Commitment and (C) each Non-Consenting
Lender being replaced pursuant to this Section 2.17 shall have delivered to the Paying Agent any Note or Notes held by such Non-Consenting
Lender. Upon the payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement, without any further acknowledgment by or the consent of
the other Lenders, and the obligations of each such Non-Consenting Lender hereunder shall, by the provisions hereof, be released and
discharged.
(d) If
Lenders holding a majority in interest of the aggregate Commitments (after giving effect to any assumptions pursuant to subsection (c) of
this Section 2.17) consent in writing to a requested extension (whether by execution or delivery of an Assumption Agreement or otherwise)
not later than one Business Day prior to such Extension Date, the Paying Agent shall so notify the Borrower, and, so long as no Default
shall have occurred and be continuing as of such Extension Date, or shall occur as a consequence thereof, the Termination Date then in
effect with respect to the Commitment of such Consenting Lenders and Assuming Lenders shall be extended for the additional one-year period
described in subsection (a) of this Section 2.17, and all references in this Agreement, and in the Notes, if any, to the “Termination
Date” shall, with respect to each Consenting Lender and each Assuming Lender for such Extension Date, refer to the Termination
Date as so extended. Promptly following each Extension Date, the Paying Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in effect immediately prior thereto and shall thereupon record
in the Register the relevant information with respect to each such Consenting Lender and each such Assuming Lender.
(e) If
at any Termination Date, the sum of the aggregate outstanding principal amount of Advances plus the Available Amount of Letters of Credit
outstanding exceed the Commitments of the Lenders having Commitments that extend to a date later than such Termination Date, the Borrower
shall repay Advances and/or deposit funds into the Letter of Credit Collateral Account in an amount equal to such excess.
SECTION 2.18.
Obligations Absolute. The obligations of the Borrower under this Agreement in respect of any Letter of Credit, any
Letter of Credit Agreement and under any other agreement or instrument relating to any Letter of Credit shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including to the extent permitted by law, the following circumstances:
(a) any
lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or any other agreement or instrument relating
thereto (collectively, the “Letter of Credit Documents”) or any Loan Document;
(b) any
change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect
of any Letter of Credit or any other amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents
or any other Loan Document;
(c) any
exchange, release or nonperfection of any collateral, or any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of the Borrower in respect of any Letter of Credit;
(d) the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), any of the Lenders, the Paying
Agent or any other Person, whether in connection with any Loan Document, the transactions contemplated hereby or thereby or any unrelated
transaction;
(e) any
draft, demand, certificate, statement or any other document presented under or in connection with any Letter of Credit or other Loan
Document proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(f) payment
in good faith by an Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not comply with the
terms of such Letter of Credit;
(g) waiver
by an Issuing Bank of any requirement that exists for such Issuing Bank’s protection and not the protection of the Borrower or
any waiver by such Issuing Bank which does not in fact materially prejudice the Borrower;
(h) honor
of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(i) any
payment made by an Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of,
or the date by which documents must be received under such Letter of Credit, but only if presentation after such date is authorized by
the Uniform Commercial Code, the ISP or the UCP, as applicable; and
(j) any
other circumstance or happening whatsoever other than the payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not similar to any of the foregoing, that might otherwise
constitute a defense available to, or a discharge of, the Borrower.
SECTION 2.19. Increase in the Aggregate
Commitments. (a) The Borrower may, at any time but in any event not more than twice in any calendar year prior to the latest
Termination Date, by notice to the Paying Agent, request that the aggregate amount of the Commitment be increased by an amount of $10,000,000
or an integral multiple thereof (each a “Commitment Increase”) to be effective as of a date that is at least 90 days
prior to the latest scheduled Termination Date then in effect (the “Increase Date”) as specified in the related notice
to the Paying Agent; provided, however that (i) in no event shall the aggregate amount of the Commitments at any time
exceed (x) $4,750,000,000 prior to the Acorn Closing Date Additional Commitment Availability Date and (y) $7,000,000,000 on
and after the Acorn Closing Date Additional Commitment Availability Date, and (ii) on the date of any request by the Borrower for
a Commitment Increase and on the related Increase Date no Default shall have occurred and be continuing.
(b) The
Paying Agent shall promptly notify the Lenders and such Eligible Assignees as have been identified by the Borrower of a request by the
Borrower for a Commitment Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date by which Lenders wishing to participate in the Commitment Increase must commit to an increase
in the amount of their respective Commitments and such Eligible Assignees must respond to the requested Commitment Increase (the “Commitment
Date”). Each Lender that is willing to participate in such requested Commitment Increase (each an “Increasing Lender”)
shall, in its sole discretion, give written notice to the Paying Agent on or prior to the Commitment Date of the amount by which it is
willing to increase its Commitment. If the Lenders and such Eligible Assignees notify the Paying Agent that they are willing to increase
or establish the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase,
the requested Commitment Increase shall be allocated among the Lenders willing to participate therein and such Eligible Assignees in
such amounts as are agreed among the Borrower, the Paying Agent and the Issuing Banks; provided, however, that the Commitment
of each such Eligible Assignee shall be not less than $10,000,000. No Lender shall have any obligation to participate in such a requested
Commitment Increase, and the election of any Lender to Participate in such a requested Commitment Increase shall not obligate any other
Lender to so participate.
(c) On
each Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Commitment Increase in accordance with
Section 2.19(b) shall become a Lender party to this Agreement as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so increased by such amount (or by the amount allocated to such Lender pursuant
to the last sentence of Section 2.19(b)) as of such Increase Date; provided, however, that the Paying Agent shall
have received on or before such Increase Date the following, each dated such date:
(i) (A) certified
copies of resolutions of the Board of Directors of the Borrower or the Executive Committee of such Board approving the Commitment Increase
and the corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrower (which may be in-house counsel),
in customary form and substance;
(ii) an
Assumption Agreement from each Assuming Lender, if any, duly executed by such Eligible Assignee, the Paying Agent and the Borrower; and
(iii) confirmation
from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the Borrower and the Paying
Agent.
On each Increase Date, upon fulfillment of the conditions set forth
in the immediately preceding sentence of this Section 2.19(c), the Paying Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier, of the occurrence of the Commitment
Increase to be effected on such Increase Date and shall record in the Register the relevant information with respect to each Increasing
Lender and each Assuming Lender on such date.
(d) Separate
and apart from any Commitment Increase provided pursuant to Section 2.19(a)-(c) above, on the Acorn Closing Date Additional
Commitment Availability Date, the aggregate Commitments then-outstanding shall be increased by the Acorn Closing Date Additional Commitments.
Each Person (such Person, an “Acorn Closing Date Additional Commitment Lender”) identified on Schedule I (i) agrees
to be a Lender under this Agreement and bound by the terms hereof and (ii) to have its then-existing Commitment (if any) increased
by the amount set forth opposite its name on Schedule I under the caption “Acorn Closing Date Additional Commitment”. The
availability of the Acorn Closing Date Additional Commitments and the resulting increase in Commitments contemplated by the immediately
preceding sentence shall be subject solely to (x) the occurrence of the Effective Date and the Acorn Closing Date (which date shall
be no later than the Acorn Closing Date Additional Commitment Termination Date) and (y) the Paying Agent receiving a certificate
from a Responsible Officer of the Borrower certifying that the Acorn Closing Date has occurred (the date the Paying Agent receives such
certificate, the “Acorn Closing Date Additional Commitment Availability Date”).
SECTION 2.20.
Cash Collateral. (a) Certain Credit Support Events. Upon the request of the Paying Agent or any Issuing Bank
if, as of the date 30 days prior to the Termination Date, any Fronted L/C Obligation for any reason remains outstanding, the Borrower
shall immediately Cash Collateralize the then outstanding amount of all Fronted L/C Obligations. At any time that there shall exist a
Defaulting Lender, immediately upon the request of the Paying Agent or the applicable Issuing Bank, if such Issuing Bank has honored
any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, the Borrower shall
deliver to the Paying Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.21(a)(iv) and
any Cash Collateral provided by the Defaulting Lender) in respect of such Letter of Credit.
(b) Grant
of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained
in blocked, non-interest bearing deposit accounts at the Paying Agent. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Paying Agent, for the benefit of the Paying Agent, the Issuing Banks and the Lenders,
and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other
property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which
such Cash Collateral may be applied pursuant to Section 2.20(c). If at any time the Paying Agent determines that Cash Collateral
is subject to any right or claim of any Person other than the Paying Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting
Lender will, promptly upon demand by the Paying Agent, pay or provide to the Paying Agent additional Cash Collateral in an amount sufficient
to eliminate such deficiency.
(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.20 or
Sections 2.03, 2.21 or 6.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific Fronted L/C
Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest
accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such
property as may be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly
following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination
of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.22(b)))
or (ii) the Paying Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Default (and following application
as provided in this Section 2.20 may be otherwise applied in accordance with Section 6.02), and (y) the Person providing
Cash Collateral and the applicable Issuing Bank may agree that Cash Collateral shall not be released but instead held to support future
anticipated Fronting Exposure or other obligations.
SECTION 2.21. Defaulting Lenders. (a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in Section 8.01.
(ii) Reallocation
of Payments. Any payment of principal, interest, fees or other amounts received by the Paying Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise, and including any amounts made available
to the Paying Agent by such Defaulting Lender pursuant to Section 8.04) under this Agreement, shall be applied at such time or times
as may be determined by the Paying Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the
Paying Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing
Banks hereunder; third, if so determined by the Paying Agent or requested by any Issuing Bank, to be held as Cash Collateral for
future funding obligations of such Defaulting Lender of any participation in any Letter of Credit; fourth, as the Borrower may
request (so long as no Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement; fifth, if so determined by the Paying Agent and the Borrower, to be held
in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Advances
under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment
of a court of competent jurisdiction obtained by any Lender or an Issuing Bank against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Advances or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share
and (y) such Advances or L/C Borrowings were made at a time when the conditions set forth in Section 3.02 were satisfied or
waived, such payment shall be applied solely to pay the Advances of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Advances of, or L/C Borrowings owed to, such Defaulting Lender. 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 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(iii) Certain
Fees. Such Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.04(a) for
any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise
would have been required to have been paid to such Defaulting Lender) and (y) shall be limited in its right to receive Letter
of Credit Fees as provided in Section 2.04(c)(ii).
(iv) Reallocation
of Ratable Shares to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing
the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant
to Section 2.03, the “Ratable Share” of each non-Defaulting Lender shall be computed without giving effect to the Commitment
of such Defaulting Lender; provided, that, the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting
Lender minus (2) the aggregate outstanding principal amount of the Revolving Credit Advances of that Lender.
(b) Defaulting
Lender Cure. If the Borrower, the Paying Agent and the Issuing Banks agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Paying Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect
to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other
Lenders or take such other actions as the Paying Agent may determine to be necessary to cause the Revolving Credit Advances and funded
and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Ratable Shares
(without giving effect to Section 2.21(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that
no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender
was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties,
no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender.
SECTION 2.22. Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Applicable Lending Office. If any Lender requests compensation under Section 2.11, or requires the Borrower to
pay any Indemnified Taxes in accordance with Section 2.14(c) or additional amounts to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 2.14, then such Lender shall (at the request of the Borrower) use reasonable efforts
to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.11 or 2.14, as the case may be, in the future, and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any Indemnified Taxes
in accordance with Section 2.14(c) or additional amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.14 and, in each case, such Lender has declined or is unable to designate a different lending office
in accordance with paragraph (a) of this Section that eliminate the amounts payable pursuant to Section 2.11 or 2.14,
or if any Lender is a Defaulting Lender, a Non-Approving Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Paying Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section 8.06), all of its interests, rights (other
than its existing rights to payments pursuant to Section 2.11 or Section 2.14) and obligations under this Agreement and the
related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that:
(i) the
Borrower shall have paid to the Paying Agent the assignment fee (if any) specified in Section 8.06;
(ii) such
Lender shall have received payment of an amount equal to the outstanding principal amount of its Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.11)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant
to Section 2.14, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such
assignment does not conflict with applicable law; and
(v) in
the case of any assignment resulting from a Lender becoming a Non-Approving Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower
to require such assignment and delegation cease to apply.
Notwithstanding anything in this Section to
the contrary, the Lender that acts as the Paying Agent may not be replaced hereunder except in accordance with the terms of Section 7.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness
. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following
conditions precedent have been satisfied (or waived in accordance with Section 8.01):
(a) There
shall have occurred no Material Adverse Change since February 3, 2024.
(b) The
Borrower shall have paid all accrued fees and expenses of the Paying Agent, the Issuing Banks and the Lenders (including the accrued
fees and expenses of counsel to the Paying Agent) provided that, in the case of expenses, invoices shall have been presented to
the Borrower at least three Business Days prior to the Effective Date.
(c) On
the Effective Date, the following statements shall be true and the Paying Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The
representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective
Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall
be true and correct in all material respects on and as of such specified date and (y) any representation or warranty that is qualified
as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects),
(ii) No
event has occurred and is continuing that constitutes a Default, and
(iii) the
Existing Credit Agreement shall have been terminated.
(d) The
Paying Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory
to the Paying Agent:
(i) Certified
copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.
(ii) A
certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement, each other Loan Document and the other documents to be delivered hereunder or thereunder.
(iii) A
favorable opinion of (i) Christine S. Wheatley, Senior Vice President, General Counsel and Secretary for the Borrower, and of (ii) Weil
Gotshal & Manges LLP, special New York counsel for the Borrower, as to the enforceability of this Agreement under New York law,
in each case, in customary form and substance.
(iv) at
least three Business Days prior to the Effective Date, any documentation or other evidence reasonably requested by the Paying Agent or
any Lender in order to comply with all necessary “know your customer” or other similar checks under all applicable laws and
regulations and, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation,
a duly executed Beneficial Ownership Certification, in each case, to the extent requested at least five days prior to the anticipated
Effective Date.
SECTION 3.02. Conditions Precedent to Each
Borrowing and Issuance (Other than a Certain Funds Advance). The obligation of each Lender to make an Advance (other than (x) a
Base Rate Advance made by any Issuing Bank or any Lender pursuant to Section 2.03(c) or (y) a Certain Funds Advance) on
the occasion of each Borrowing and the obligation of each Issuing Bank to issue a Letter of Credit shall be subject to the conditions
precedent (which may be waived pursuant to Section 8.01) that the Effective Date shall have occurred and on the date of such Borrowing
or Issuance the following statements shall be true (and each of the giving of the applicable Notice of Borrowing or Notice of Issuance
and the acceptance by the Borrower of the proceeds of such Borrowing or of such Letter of Credit shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing or Issuance such statements are true):
(a) the
representations and warranties contained in Section 4.01 (other than the representations and warranties in the last sentence of
subsection (e) and in subsection (f)) are true and correct in all material respects (except for those representations and warranties
that are already qualified by “materiality,” “Material Adverse Effect” or similar language, which shall be true
and correct in all respects) on and as of the date of such Borrowing or Issuance of Letter of Credit, before and after giving effect
to such Borrowing or Issuance of a Letter of Credit and to the application of the proceeds therefrom, as though made on and as of such
date (it being understood and agreed that (x) 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 (y) any representation or warranty
that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct
in all respects on such specified date), and
(b) no
event has occurred and is continuing, or would result from such Borrowing or Issuance of a Letter of Credit or from the application of
the proceeds therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Certain
Funds Advance. The obligation of each Lender to make a Certain Funds Advance to the Borrower on the Acorn Closing Date shall be subject
to the following conditions precedent having been satisfied (or waived in accordance with Section 8.01):
(a) The
Effective Date shall have occurred.
(b) The
Acorn Acquisition shall have been consummated substantially concurrently with the Borrowing of Certain Funds Advances hereunder on the
Acorn Closing Date materially in accordance with the Acorn Acquisition Agreement as in effect on October 13, 2022 and the Acorn
Acquisition Agreement as in effect on October 13, 2022 shall not have been amended or modified, and no condition shall have been
waived or consent granted by the Borrower, in any respect that is materially adverse to the Lenders without the Paying Agent’s
prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any decrease
in the purchase price shall not be materially adverse to the interests of the Lenders so long as such decrease is less than 15% of the
aggregate consideration for the Acorn Acquisition (it being understood and agreed that any purchase price decreases contemplated in the
proviso below shall not count towards such 15% cap) and such reduction is applied, subject to the applicable mandatory prepayment and
commitment reduction requirements of the Acorn Bridge Facility, to reduce the commitments under the Acorn Term Facility on a dollar-for-dollar
basis pursuant to the terms thereof, (b) any decrease in the purchase price shall be materially adverse to the interests of the
Lenders if such decrease is equal to or greater than 15% of the aggregate consideration for the Acorn Acquisition (it being understood
and agreed that any purchase price decreases contemplated in the proviso below shall not count towards such 15% cap), (c) any increase
in the purchase price shall not be materially adverse to the Lenders so long as such increase is not funded with third-party debt for
borrowed money) and (d) any extension of the “Outside Date” under the Acorn Acquisition Agreement shall not be materially
adverse to the interests of the Lenders so long as such “Outside Date” is not extended past December 31, 2024; provided
that, notwithstanding anything to the contrary in the foregoing, (I) any purchase price decrease pursuant to the terms of the
Acorn Acquisition Agreement as in effect on October 13, 2022 shall not be materially adverse to the interests of the Lenders and
(x) no amount of any such purchase price decrease (other than any purchase price decrease described in clause (y) below) shall
be required to be applied to reduce the Commitments or any other indebtedness of the Borrower and (y) any purchase price decrease
pursuant to the definition of “SpinCo Consideration Adjustment Amount” in the Acorn Acquisition Agreement as in effect on
October 13, 2022 shall, subject to the mandatory prepayment and commitment reduction requirements of the Acorn Bridge Facility,
automatically reduce the commitments under the Acorn Term Facility on a dollar-for-dollar basis pursuant to the terms thereof and (II) any
increase in the number of stores contributed to SpinCo (as defined in the Acorn Acquisition Agreement as in effect on October 13,
2022) and any waiver, modification, amendment or consent, to the extent it effects the foregoing changes, shall not be materially adverse
to the Lenders, so long as there is a purchase price decrease pursuant to the definition of “SpinCo Consideration Adjustment
Amount” with respect to such stores and either the Acorn Bridge Facility or the Acorn Term Facility is correspondingly reduced
in accordance with clause (I)(y) above.
(c) Except
(x) as disclosed in the reports, schedules, forms, statements and other documents filed by the Company with or furnished by the
Company to the SEC on or after June 20, 2020 (excluding any disclosures set forth in any such Filed Company SEC Documents in any
risk factor section, any forward-looking disclosure or any other statements that are non-specific, predictive or primarily cautionary
in nature other than historical facts included therein and solely where the relevance of the information as an exception to (or disclosure
for purposes of) a particular representation is reasonably apparent on the face of such disclosure) and publicly available prior to the
date of the Agreement, (y) as set forth in the disclosure letter delivered by the Company to Parent as of the date hereof, or (z) to
the extent relating to SpinCo, the SpinCo Business, SpinCo Assets, SpinCo Liabilities or SpinCo Employees or any Divestment Actions,
and disregarding the Divestment Actions (including, for the avoidance of doubt, the Separation and the Distribution) or any effects thereof,
since February 26, 2022, there has not been any Company Material Adverse Effect. Solely for purposes of this Section 3.03(c),
all capitalized terms used in this Section 3.03(c) shall have the meanings attributed thereto in the Acorn Acquisition Agreement
as in effect on October 13, 2022.
(d) To
the extent also provided to Citibank and WF Securities, each in its capacity as lead arranger of the Acorn Bridge Facility, the Arrangers
shall have received (a) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity
and cash flows of each of Borrower and Acorn for the two most recent fiscal years ended at least 100 days prior to the Acorn Closing
Date and (b) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of each of Borrower and Acorn for each subsequent fiscal quarter (other than the fourth fiscal quarter) ended at least 50
days before the Acorn Closing Date (and the corresponding period in the prior year); provided, that the financial statements required
to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and
all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act
on Form S-3. The Arrangers hereby acknowledge that the Borrower’s and Acorn’s respective public filings with the SEC
under the Exchange Act of any required financial statements will satisfy the requirements of this clause (d).
(e) To
the extent also provided to Citibank and WF Securities, each in its capacity as lead arranger of the Acorn Bridge Facility, the Arrangers
shall have received, as required by Rule 3-05 and Article 11 of Regulation S-X, customary pro forma financial statements of
the Borrower giving effect to the Acorn Transactions, regardless of when such pro forma financial statements are required to be filed
with the SEC, meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting rules and
regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3.
(f) The
Paying Agent shall have received a duly completed and executed (i) Notice of Borrowing in substantially the form of Exhibit A
hereto and (ii) solvency certificate in substantially the form of Exhibit C hereto.
(g) The
Arrangers, the Paying Agent and the Lenders shall have received (or shall simultaneously receive) all fees and invoiced expenses required
to be paid on or prior to the Acorn Closing Date pursuant to the Loan Documents with respect to the Certain Funds Advances; provided,
that, in the case of expenses, the Borrower has received a reasonably detailed summary of such expenses not less than two Business Days
prior to the Acorn Closing Date (which amounts may be offset against the proceeds of the Certain Funds Advances).
(h) No
Event of Default under Section 6.01(a) (with respect to fees) or Section 6.01(e) (with respect to the Borrower) shall
have occurred and be continuing (after giving pro forma effect to the Acorn Transactions).
(i) The
Specified Representations and the Acorn Acquisition Agreement Representations shall be true and correct in all material respects on and
as of the Acorn Closing Date.
(j) The
Paying Agent shall have received, at least three Business Days prior to the Acorn Closing Date, all documentation and other information
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, to the extent reasonably requested by the Paying
Agent at least 10 Business Days prior to the Acorn Closing Date.
(k) On
the Acorn Closing Date, the Paying Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated
the Acorn Closing Date, stating that the conditions precedent set forth in Sections 3.03(b), (c), (h) and (i) have
been satisfied.
The submission by the Borrower to the Paying Agent
of a Notice of Borrowing for a Certain Funds Advance and the acceptance by the Borrower of the proceeds of such Certain Funds Advance
made hereunder shall constitute a representation and warranty by the Borrower as of the Acorn Closing Date that all conditions contained
in this Section 3.03 have been satisfied.
SECTION 3.04. Determinations Under Section 3.01
and Section 3.03. Without limiting the generality of the provisions of the last paragraph of Section 7.03, for purposes
of determining compliance with the conditions specified in Section 3.01 and/or Section 3.03, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Paying Agent shall have received notice
from such Lender prior to the proposed Effective Date and/or Acorn Closing Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties
of the Borrower. The Borrower represents and warrants on the Effective Date and each other date as set forth in Article II and/or
Article III as follows:
(a) The
Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio.
(b) The
execution, delivery and performance by the Borrower of the Loan Documents and the other documents which are delivered hereunder and the
consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Borrower’s charter, regulations or by-laws, as applicable,
or (ii) law or any contractual restriction binding on or affecting the Borrower, except, in the case of this clause (ii), for such
contraventions that would not reasonably be expected to result in a Material Adverse Effect.
(c) No
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by the Borrower of any Loan Document, except for (i) those
authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and
effect and (ii) those authorizations, approvals, actions, notices and filings the failure to obtain, take, give or make, would not
reasonably result in a Material Adverse Effect.
(d) This
Agreement has been, and each of the other Loan Documents when delivered will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the other Loan Documents, when delivered hereunder, will be, the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with their respective terms, except as such enforceability may be limited
by any bankruptcy, insolvency or other similar debtor relief laws or other laws affecting creditors’ rights generally and by general
principles of equity and principles of good faith and fair dealing.
(e) The
Consolidated balance sheet of the Borrower and its Subsidiaries and variable interest entities in which the Borrower is the primary beneficiary
as at February 3, 2024, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for
the Fiscal Year ended as of February 3, 2024, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants,
copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date,
all in accordance with generally accepted accounting principles consistently applied. Since February 3, 2024, there has been no
Material Adverse Change.
(f) There
is no pending or threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before
any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (other than any
litigation disclosed on any of the Borrower’s periodic or current reports on Form 10-K, 10-Q or 8-K filed with the Securities
and Exchange Commission) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation
of the transactions contemplated hereby and thereby.
(g) The
Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance or of any Letter
of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
(h) The
Borrower is not an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The
Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower, its
Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions and the
Borrower and its Subsidiaries are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of
the Borrower, any Subsidiary or any of their respective directors or officers, or, to the knowledge of the Borrower, any of their respective
employees or any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit
facility established hereby, is, or is controlled by, a Sanctioned Person.
(j) The
Borrower is not an Affected Financial Institution.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01.
Affirmative Covenants. So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder or
any Letter of Credit shall remain outstanding, the Borrower will:
(a) Compliance
with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and Environmental Laws, except, in each case, to the extent that failure
to so comply would result in a Material Adverse Effect, and maintain in effect policies and procedures reasonably designed to promote
compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws
and applicable Sanctions.
(b) Payment
of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all material
lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves are being maintained in accordance with GAAP.
(c) Maintenance
of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar
properties in the same industries in which the Borrower or such Subsidiary operates; provided, however, that the Borrower
and its Subsidiaries may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties
in the same industries in which the Borrower or such Subsidiary operates and to the extent consistent with prudent business practice.
(d) Preservation
of Corporate Existence, Etc. Preserve and maintain, and cause each of its Material Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b) and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right or franchise if a Responsible Officer of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Borrower or such Subsidiary,
as the case may be, and that the loss thereof would not reasonably be expected to result in a Material Adverse Effect.
(e) Visitation
Rights. At any reasonable time and from time to time, permit the Paying Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower
and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any of
their officers or directors and with their independent certified public accountants; provided that unless an Event of Default
is continuing, such visitation shall be limited to once per year for each of the Paying Agent and each Lender.
(f) Keeping
of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance
of Properties, Etc. Maintain and preserve all of its properties in good working order and condition, ordinary wear and tear excepted,
and maintain all necessary licenses and permits if, in each case, failure to so maintain and preserve would result in a Material Adverse
Effect.
(h) Reporting
Requirements. Furnish to the Lenders:
(i) as
soon as available and in any event within 50 days after the end of each of the first three quarters of each Fiscal Year of the Borrower,
the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with
the end of such quarter, duly certified (subject to year-end audit adjustments) by a Financial Officer of the Borrower as having been
prepared in accordance with generally accepted accounting principles and certificates of a Financial Officer of the Borrower as to compliance
with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.03;
provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(ii) as
soon as available and in any event within 100 days after the end of each Fiscal Year of the Borrower, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, containing the Consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such Fiscal Year and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized
standing, provided that in the event of any change in generally accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to GAAP;
(iii) together
with the delivery of the financial statements required under clauses (h)(i) and (h)(ii) above, a schedule (1) identifying
each Excluded Ocado CFC (which shall, subject to the limitations contained in the definition of “Excluded Ocado CFC”, constitute
the written notice of such designation required by the definition thereof) and (2) setting forth in reasonable detail the calculation
of the Excluded Ocado CFC Amount with respect to each Excluded Ocado CFC as of the end of such fiscal quarter, including (I) the
initial Excluded Ocado CFC Amount at the time the applicable Ocado CFC was first designated as an Excluded Ocado CFC and (II) commencing
with the second fiscal quarter ending after any Ocado CFC has been designated as an Excluded Ocado CFC, the change in the Excluded Ocado
CFC Amount with respect to such Excluded Ocado CFC from the previous fiscal quarter end;
(iv) as
soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement
of a Financial Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes
to take with respect thereto;
(v) promptly
after the sending or filing thereof, copies of all quarterly and annual reports and proxy solicitations that the Borrower sends to any
of its securityholders, and copies of all reports on Form 8-K that the Borrower or any Subsidiary files with the Securities and
Exchange Commission (other than reports on Form 8-K filed solely for the purpose of incorporating exhibits into a registration statement
previously filed with the Securities and Exchange Commission);
(vi) promptly
after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and
(vii) such
other information respecting the Borrower or any of its Subsidiaries as any Lender through the Paying Agent may from time to time reasonably
request.
The financial statements required to be delivered pursuant
to clauses (i) and (ii) and the reports required to be delivered pursuant to clause (v) of this Section 5.01(h) shall
be deemed to have been delivered on the date on which the same have been posted on the SEC’s website at www.sec.gov.
The Borrower hereby acknowledges that (a) the Paying
Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect
to such Persons’ securities. The Borrower hereby agrees (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall
be deemed to have authorized the Paying Agent, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute Proprietary Information, they shall be treated
as set forth in Section 8.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through
a portion of the Platform designated “Public Side Information;” and (z) the Paying Agent shall be entitled to treat
any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”
(i) Subsidiary
Guarantors. Notify the Paying Agent at the time that any Subsidiary of the Borrower becomes a guarantor of any senior unsecured Debt
of the Borrower in an outstanding principal amount in excess of $50,000,000, and promptly thereafter (and in any event within 30 days),
cause such Subsidiary to (a) become a guarantor of the Borrower’s obligations under the Loan Documents by executing
and delivering to the Paying Agent a counterpart of a guaranty in form and substance as the Paying Agent shall deem appropriate for such
purpose, and (b) deliver to the Paying Agent documents of the types referred to in clauses (ii) and (iii) of Section 3.01(d) and
favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability
of the documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to the Paying Agent. Each Subsidiary
that becomes a guarantor of the Borrower’s obligations under the Loan Documents pursuant to this Section 5.01(i) shall
be automatically released from its guarantee obligations upon either (x) such Subsidiary ceasing to be a Subsidiary of the Borrower
as a result of a transaction permitted hereunder or (y) such subsidiary ceasing to guarantee senior unsecured Debt of the Borrower
(other than Debt constituting obligations under the Loan Documents) in an outstanding principal amount in excess of $50,000,000. The
Lenders and the Issuing Banks irrevocably authorize the Paying Agent to, at the sole expense of the Borrower, execute and deliver any
documentation reasonably requested by the Borrower or any Subsidiary to evidence any release in accordance with the immediately preceding
sentence.
SECTION 5.02. Negative Covenants. So
long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder or any Letter of Credit shall remain outstanding,
the Borrower will not:
(a) Liens,
Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right
to receive income, other than:
(i) Liens
on any property or assets of any corporation existing at the time such corporation becomes a Subsidiary; provided that such Lien
does not extend to any other property of the Borrower or any of its Subsidiaries;
(ii) Liens
on any property or assets (including stock) existing at the time of acquisition of such property or assets by the Borrower or any of
its Subsidiaries, or Liens to secure the payment of all or any part of the purchase price of such property or assets (including stock),
upon the acquisition of such property or assets by the Borrower or any of its Subsidiaries or to secure Debt incurred, assumed or guaranteed
by the Borrower or any of its Subsidiaries for the purpose of financing all or any part of the purchase price of such property or in
the case of real property, construction or improvements thereon, which Debt is incurred, assumed or guaranteed prior to, at the time
of, or within 18 months after such acquisition (or in the case of real property, completion of construction (including any improvements
on an existing asset) or commencement of full operations at such property, whichever is later (which in the case of a retail store is
the opening of the store for business to the public)), provided that in the case of any such acquisition, construction or improvement,
the Lien shall not apply to any other property or assets theretofore owned by the Borrower or any of its Subsidiaries; or Liens attaching
to property substituted by the Borrower to obtain the release of a Lien on other property of the Borrower on which a Lien then exists;
(iii) Liens
securing Debt owing by any Subsidiary of the Borrower to the Borrower or to another Subsidiary of the Borrower;
(iv) Liens
on any property or assets of a corporation existing at the time such corporation is merged into or consolidated with the Borrower or
any of its Subsidiaries or at the time of a purchase, lease or other acquisition or the assets of a corporation or firm as an entirety
or substantially as an entirety by the Borrower or any of its Subsidiaries provided that such Lien does not extend to any other
property of the Borrower or any of its Subsidiaries;
(v) Liens
on any property or assets of the Borrower or any of its Subsidiaries in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor
of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any Debt incurred or guaranteed for the purpose of financing all or any part of the purchase price (or, in the
case of real property, the cost of construction) of the property or assets subject to such Liens (including, but not limited to, Liens
incurred in connection with pollution control, industrial revenue or similar financing);
(vi) Liens
existing on properties or assets of the Borrower or any of its Subsidiaries existing on the Effective Date; provided that such
Liens shall secure only those obligations which they secure on the Effective Date or any extension, renewal or replacement thereof;
(vii) any
extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to
in the foregoing clauses (i) to (vi), inclusive; provided that such extension, renewal or replacement shall be limited to all or
a part of the property or assets to which the Lien so extended, renewed or replaced had attached (plus improvements and construction
on real property);
(viii) Liens
imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’ warehouseman’s,
vendors’, or other similar Liens arising in the ordinary course of business of the Borrower or any of its Subsidiaries, or governmental
(federal, state or municipal) Liens arising out of contracts for the sale of products or services by the Borrower or any of its Subsidiaries,
or deposits or pledges to obtain the release of any of the foregoing Liens;
(ix) pledges,
Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently
dischargeable, or in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Borrower or
any of its Subsidiaries is a party, or to secure the public or statutory obligations of the Borrower or any of its Subsidiaries, or in
connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or to secure surety, appeal or customs bonds to which the
Borrower or any of its Subsidiaries is a party, or in litigation or other proceedings such as, but not limited to, interpleader proceedings,
and other similar pledges, Liens or deposits made or incurred in the ordinary course of business;
(x) Liens
created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including
Liens arising out of judgments or awards against the Borrower or any of its Subsidiaries, with respect to which the Borrower or such
Subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired;
or final unappealable judgment Liens which are satisfied within 30 days of the date of judgment; or Liens incurred by the Borrower or
any of its Subsidiaries for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which
the Borrower or such Subsidiary is a party; or Liens securing judgments which would not result in an Event of Default under Section 6.01(f);
(xi) Liens
for taxes or assessments of governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other
Liens or charges incidental to the conduct of the business of the Borrower or any of its Subsidiaries or the ownership of the property
or assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and
which do not, in the opinion of the Borrower, materially impair the use of such property or assets in the operation of the business of
the Borrower or such Subsidiary or the value of such property or assets for the purposes of such business; or
(xii) Liens
not permitted by the foregoing clauses (i) to (xi), inclusive, if at the time of, and after giving effect to, the creation or assumption
of such Lien, the aggregate amount of all Debt of the Borrower and its Subsidiaries secured by all Liens not so permitted by the foregoing
clauses (i) through (xi) above together with the Attributable Debt in respect of Sale and Lease-Back Transactions (as such
terms are defined in, and such amount is calculated in accordance with, the Indenture) does not exceed 10% of Consolidated Net Tangible
Assets.
(b) Mergers,
Etc. Merge or consolidate with or into any Person, or permit any of its Subsidiaries to do so, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole, except that (i) any Subsidiary of the Borrower may merge or consolidate with or into or dispose
of assets to any other Subsidiary of the Borrower or into any other Person (so long as the surviving corporation is a Subsidiary of the
Borrower); provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction
or would result therefrom and (ii) any Subsidiary of the Borrower or any other Person may merge into or dispose of assets to the
Borrower.
(c) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any significant change in accounting policies or reporting
practices, except as required by generally accepted accounting principles. The parties acknowledge that the Borrower and its Subsidiaries
may change their fiscal years to conform the fiscal years of the Borrower and its Subsidiaries.
(d) [Reserved].
(e) Subsidiary
Debt. Permit any of its Subsidiaries (other than any Subsidiary that is a guarantor of the Borrower’s obligations under the
Loan Documents) to create or suffer to exist, any Debt other than:
(i) Debt
owed to the Borrower or to a wholly owned Subsidiary of the Borrower;
(ii) Debt
consisting of Finance Lease Obligations;
(iii) Debt
aggregating for all of the Borrower’s Subsidiaries not more than 5% of Consolidated Tangible Assets at any one time outstanding;
and
(iv) endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business.
SECTION 5.03. Financial Covenant. So
long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) until
the occurrence of the Acorn Closing Date, the Borrower will maintain a Leverage Ratio (determined as of the last day of each Fiscal Quarter
for the Rolling Period ending on such day) of not greater than 3.50:1.00; provided that, on (and including) and following the
date on which the Acorn Acquisition Agreement is terminated without the occurrence of the Acorn Closing Date, upon the written notice
of the Borrower to the Paying Agent that the Borrower and/or any of its Subsidiaries has, during the prior twelve month period, made
an acquisition or series of acquisitions whose aggregate cash consideration equals or exceeds $1,000,000,000 (such notice, which shall
include a listing of the acquisition or acquisitions so made, a “Covenant Reset Notice”), the maximum Leverage Ratio
permitted under this Section 5.03(a) shall be automatically, without any action on the part of the Paying Agent or any Lender,
increase from 3.50:1.00 to 4.00:1.00 for a period of four fiscal quarters (a “Covenant Reset Period”), commencing
with the fiscal quarter during which the first subject acquisition included in the Covenant Reset Notice is consummated; provided,
further, that before becoming entitled to an additional Covenant Reset Period under this Section 5.03(a), the Borrower shall
deliver to the Paying Agent compliance certificates pursuant to Section 5.01(h) evidencing the Borrower’s compliance
with a Leverage Ratio of 3.50 to 1.00 for at least two full fiscal quarters prior to the beginning of such additional Covenant Reset
Period; and
(b) from
and following the Acorn Closing Date, the Borrower will maintain a Leverage Ratio (determined as of the last day of each Fiscal Quarter
for the Rolling Period ending on such day) of not greater than 4.50:1.00, with step-downs to (1) 4.25:1.00 for the Rolling
Periods ending on the last day of the third and fourth full Fiscal Quarters after the Acorn Closing Date, (2) 4.00:1.00 for the
Rolling Periods ending on the last day of the fifth and sixth full Fiscal Quarters after the Acorn Closing Date, (3) 3.75:1.00 for
the Rolling Periods ending on the last day of the seventh and eighth full Fiscal Quarters after the Acorn Closing Date and (4) 3.50:1.00
for the Rolling Period ending on the last day of the ninth full Fiscal Quarter after the Acorn Closing Date and each Rolling Period thereafter;
provided, that following (but excluding) the last day of the ninth full Fiscal Quarter after the Acorn Closing Date, upon delivery
by the Borrower of a Covenant Reset Notice to the Paying Agent, the maximum Leverage Ratio permitted under this Section 5.03(b) shall
be automatically, without any action on the part of the Paying Agent or any Lender, increase from 3.50:1.00 to 4.00:1.00 for a Covenant
Reset Period, commencing with the fiscal quarter during which the first subject acquisition included in the Covenant Reset Notice is
consummated; provided, further, that before becoming entitled to an additional Covenant Reset Period under this Section 5.03(b),
the Borrower shall deliver to the Paying Agent compliance certificates pursuant to Section 5.01(h) evidencing the Borrower’s
compliance with a Leverage Ratio of 3.50 to 1.00 for at least two full fiscal quarters prior to the beginning of such additional Covenant
Reset Period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If
any of the following events (“Events of Default”) shall occur and be continuing:
(a) The
Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b) Any
representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) in connection with any Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) (i) The
Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.16, 5.01(d), (with respect to the
Borrower only) or (h)(iv), 5.02 (other than subsection (c)) or 5.03, or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to the Borrower by the Paying Agent or any Lender; or
(d) The
Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal
or notional amount of at least $250,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating
to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The
Borrower or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Borrower or any of its Material Subsidiaries seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any
judgment or order for the payment of money in excess of $250,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default
under this Section 6.01(f) if and for so long as (i) the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at
least “A” by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount
of such judgment or order; or
(g) Any
Change of Control shall have occurred; or
(h) (x) A
Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 430(j) of
the Internal Revenue Code) shall have occurred with respect to any Plan or Plans, (y) a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans or (z) the PBGC shall institute proceedings (including giving notice of intent
thereof) to terminate any Plan or Plans, that, in any such case, results in liability of the Borrower or any of its Subsidiaries to the
PBGC or to a Plan in an aggregate amount exceeding $250,000,000 and an amount due the PBGC or a Plan in respect of such liability in
an amount exceeding $250,000,000 remains unpaid 30 days after such payment is due; or
(i) (i) the
Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan, (ii) the Borrower or such ERISA Affiliate does not have reasonable grounds for contesting such Withdrawal
Liability or is not in fact contesting such Withdrawal Liability in a timely and appropriate manner and (iii) the amount of the
Withdrawal Liability specified in such notice, when aggregated with all other amounts required to be paid by the Borrower or any of its
ERISA Affiliates to Multiemployer Plans in connection with Withdrawal Liabilities (determined as of the date or dates of such notification)
exceeds $250,000,000 and Withdrawal Liabilities in an aggregate amount exceeding $250,000,000 remain unpaid 30 days after such payment
is due; or
(j) the
Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent
or in endangered or critical status or is being terminated, within the meaning of Section 305 and Title IV of ERISA, if solely
as a result of such insolvency or status or termination the aggregate contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in such insolvency or status or have been or are being terminated have been or will be increased over the amounts
required to be contributed to such Multiemployer Plans for their most recently completed plan years by an amount exceeding $250,000,000
and any such contribution in an amount exceeding $250,000,000 remains unpaid 30 days after such payment is due; or
(k) any
Loan Document shall not be for any reason, or shall be asserted by the Borrower (except as otherwise expressly provided in this Agreement
or such Loan Document) not to be, in full force and effect and enforceable in all material respects in accordance with its terms;
then, and in any such event, the Paying Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) to be terminated, whereupon the same
shall forthwith terminate, (ii) shall at the request, or may with the consent, of any Issuing Bank or of the Required Lenders, by
notice to the Borrower, declare the obligation of any Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (iii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon
the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c))
and of any Issuing Bank to issue Letters of Credit shall automatically be terminated and (B) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of Letters
of Credit. (a) If, at any time and from time to time, any Letters of Credit shall have been issued by any Issuing Bank
hereunder and (i) a Default shall have occurred and be continuing, (ii) the Borrower shall have prepaid in whole all Advances
pursuant to Section 2.10 and terminated all Commitments pursuant to Section 2.05, (iii) the latest Termination Date shall
have occurred or (iv) if at any time, the latest Termination Date shall be a date not more than 30 days following the expiration
of any Letter of Credit, then, upon the occurrence of any of the events described in clauses (i) through (iv) above, the Paying
Agent may, and upon the request of any Issuing Bank or of the Required Lenders shall, whether in addition to the taking by the Paying
Agent of any of the actions described in Article VI or otherwise, make demand upon the Borrower to, and forthwith upon such demand
the Borrower will, pay to the Paying Agent for its benefit and the ratable benefit of the Lenders in same day funds at the Paying Agent’s
office designated in such demand, for deposit in a special cash collateral account (the “Letter of Credit Collateral Account”)
to be maintained in the name of the Paying Agent and under the sole dominion and control of the Paying Agent for the benefit of the Paying
Agent and the ratable benefit of the Lenders at such place as shall be designated by the Paying Agent, an amount equal to the amount
of the Letter of Credit Obligations.
(b) The
Borrower hereby pledges and assigns to the Paying Agent for its benefit and the ratable benefit of the Lenders, and grants to the Paying
Agent for its benefit and the ratable benefit of the Lenders a lien on and a security interest in, the following collateral (the “Letter
of Credit Collateral”):
(i) the
Letter of Credit Collateral Account, all cash deposited therein, and all certificates and instruments, if any, from time to time representing
or evidencing the Letter of Credit Collateral Account;
(ii) all
Eligible Securities (as defined below) from time to time held by the Paying Agent and all certificates and instruments from time to time
representing or evidencing Eligible Securities;
(iii) all
notes, certificates of deposit and other instruments from time to time hereafter delivered to or otherwise possessed by the Paying Agent
for or on behalf of the Borrower in substitution for or in respect of any or all of the then existing Letter of Credit Collateral;
(iv) all
interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the then existing Letter of Credit Collateral; and
(v) to
the extent not covered by clauses (i) through (iv) above, all proceeds of any or all of the foregoing Letter of Credit
Collateral.
The lien and security interest granted hereby secures the payment
of all obligations of the Borrower now or hereafter existing hereunder and under any other Loan Document with respect to any Letters
of Credit outstanding after the occurrence of any of the events described in clause (a) above.
(c) The
Borrower hereby authorizes the Paying Agent to apply, from time to time after funds are deposited in the Letter of Credit Collateral
Account upon the occurrence of the events set forth in clause (a) above, funds then held in the Letter of Credit Collateral Account
to the payment of any amounts, in such order as the Paying Agent may elect, as shall have become or shall become due and payable by the
Borrower to the Lenders in respect of the Letters of Credit.
(d) Neither
the Borrower nor any Person claiming or acting on behalf of or through the Borrower shall have any right to withdraw any of the funds
held in the Letter of Credit Collateral Account, except as provided in Section 6.02(h); provided, however, that as
long as no Default shall have occurred and be continuing, and to the extent that there is an amount in excess of $1,000,000 in the Letter
of Credit Collateral Account at the end of any Business Day after taking into account applications of funds, if any, from the Letter
of Credit Collateral Account made pursuant to Section 6.02(c), the Paying Agent will, at the written request of the Borrower, from
time to time invest amounts on deposit in the Letter of Credit Collateral Account in such instruments described in clause (b), (c) or
(d) of the definition of the term “Permitted Investments” in Section 1.01 as the Borrower may select and the Paying
Agent may approve (the “Eligible Securities”); provided further that in order to provide the Paying Agent with
a perfected security interest therein, each investment in Eligible Securities shall be evidenced by negotiable certificates or instruments,
of which the Paying Agent shall take physical possession. If the Borrower shall have the right to have amounts on deposit in the Letter
of Credit Collateral Account invested by the Paying Agent, but shall have failed to request the Paying Agent to invest such amounts,
the Paying Agent will endeavor to invest such amounts in such Eligible Securities as the Paying Agent shall select. Any interest received
by the Paying Agent in respect of Eligible Securities shall be credited against the Letter of Credit Obligations. Non-interest proceeds
from Eligible Securities that are not invested or reinvested in Eligible Securities as provided above shall be deposited and held in
cash in the Letter of Credit Collateral Account under the sole dominion and control of the Paying Agent.
(e) The
Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create
or permit to exist any lien, security interest or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral,
except for the security interest created by this Section 6.02.
(f) If
any Event of Default shall have occurred and be continuing:
(i)
The Paying Agent may, in its sole discretion, without notice to the Borrower except as required by law and at any time from time to time,
charge, set off and otherwise apply all or any part of first, the Letter of Credit Obligations and second, the obligations
of the Borrower now or hereafter existing under any of the Loan Documents, against the Letter of Credit Collateral Account or any part
thereof, in such order as the Paying Agent shall elect. The Paying Agent agrees promptly to notify the Borrower after any such set-off
and application made by the Paying Agent, provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Paying Agent under this Section 6.02(f) are in addition to other rights and remedies
(including other rights of set-off) that the Paying Agent may have.
(ii) The
Paying Agent may also exercise, in its sole discretion, in respect of the Letter of Credit Collateral Account, in addition to the other
rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party upon default under
the Uniform Commercial Code in effect in the State of New York at that time, and the Paying Agent may, without notice except as specified
below, sell the Letter of Credit Collateral or any part thereof in one or more parcels at public or private sale, at any of the Paying
Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Paying Agent may deem
commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice
to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable
notification. The Paying Agent shall not be obligated to make any sale of Letter of Credit Collateral or any part thereof, regardless
of notice of sale having been given. The Paying Agent may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(iii) Any
cash held in the Letter of Credit Collateral Account, and all cash proceeds received by the Paying Agent in respect of any sale of, collection
from or other realization upon all or any part of the Letter of Credit Collateral Account may, in the discretion of the Paying Agent,
then or at any time thereafter be applied (after payment of any amounts payable pursuant to Section 8.03) in whole or in part by
the Paying Agent for the ratable benefit of the Lenders against all or any part of the obligations of the Borrower now or hereafter existing
under any of the Loan Documents in such order as the Paying Agent may elect.
(g) The
Paying Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Letter of Credit Collateral if
the Letter of Credit Collateral is accorded treatment substantially equal to that which the Paying Agent accords its own property, it
being understood that the Paying Agent shall not have any responsibility or liability (i) for ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Eligible Securities, whether or not the
Paying Agent has or is deemed to have knowledge of such matters, (ii) for taking any necessary steps to preserve rights against
any parties with respect to the Letter of Credit Collateral, (iii) for the collection of any proceeds from Eligible Securities,
(iv) by reason of any invalidity, lack of value or uncollectability of any of the payments received by the Paying Agent from obligors
with respect to Eligible Securities, or (v) for any loss resulting from investments made pursuant to Section 6.02(d), except
to the extent such loss was attributable to the Paying Agent’s gross negligence or willful misconduct in complying with Section 6.02(d),
or (vi) in connection with any investments made pursuant to Section 6.02(d) without a written request from the Borrower,
or any failure by the Paying Agent to make any such investment, provided that it acts in a reasonably prudent manner.
(h) Any
surplus of the funds held in the Letter of Credit Collateral Account and remaining after payment in full of all of the obligations of
the Borrower under this Agreement and under any other Loan Document after the latest Termination Date shall be paid to the Borrower or
to whomsoever may be lawfully entitled to receive such surplus.
SECTION 6.03. Actions in Respect of Certain
Funds Sublimit. Notwithstanding anything to the contrary herein, with respect to undrawn Commitments in an amount up to the Certain
Funds Sublimit, it is understood and agreed that without limiting (and subject to) the conditions precedent set forth in Section 3.01
and Section 3.03, during the period from and including the Effective Date and to and including the termination of the Commitments
hereunder, or the funding of the Certain Funds Advances hereunder on the Acorn Closing Date, and notwithstanding (a) any failure
by the Borrower or any of its Subsidiaries to comply with any of the affirmative covenants set forth in Section 5.01, the negative
covenants set forth in Section 5.02, the financial covenant set forth in Section 5.03 or any other covenant set forth herein
or in any other Loan Document, (b) the occurrence of any Event of Default (other than (x) an Event of Default under Section 6.01(a) with
respect to nonpayment of fees or (y) an Event of Default under Section 6.01(e) with respect to the Borrower) or (c) subject
to the parenthetical in clause (b) above, any provision to the contrary in the Loan Documents, none of the Paying Agent, the Co-Administrative
Agents or the Lenders shall be permitted to (i) rescind, terminate or cancel this Agreement or its Commitments hereunder, in each
case solely with respect to its Ratable Share of the Certain Funds Sublimit, or exercise any right or remedy hereunder or under the other
Loan Documents, to the extent to do so would prevent, limit or delay the making of the Certain Funds Advances hereunder on the Acorn
Closing Date, (ii) refuse to participate in making its Certain Funds Advance on the Acorn Closing Date or (iii) exercise any
right of set-off or counterclaim in respect of its Certain Funds Advances hereunder to the extent to do so would prevent, limit or delay
the making of its Certain Funds Advance on the Acorn Closing Date; provided that, it is understood that any Certain Funds Advance made
hereunder on the Acorn Closing Date shall be subject to the satisfaction (or waiver) of the conditions precedent set forth in Section 3.03.
The acceleration of the Certain Funds Advances in accordance with the last paragraph of Section 6.01 shall be permitted at any time
after the Certain Funds Advances have been funded only to the extent that an Event of Default is outstanding and continuing at such time.
For the avoidance of doubt, from the Acorn Closing Date after giving effect to the funding of the Certain Funds Advances on such date,
all of the rights, remedies and entitlements of the Paying Agent, the Co-Administrative Agents and the Lenders shall be available notwithstanding
that such rights were not available prior to such time as a result of the foregoing.
ARTICLE VII
THE PAYING AGENT
SECTION 7.01. Appointment and Authority.
Each Lender (in its capacity as a Lender and an Issuing Bank (if applicable)) hereby irrevocably appoints Wells Fargo to act on its behalf
as the Paying Agent hereunder and under the other Loan Documents and authorizes the Paying Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Paying Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Paying Agent and the Lenders,
and the Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use
of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Paying Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law.
Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.
SECTION 7.02. Rights as a Lender. The
Person serving as the Paying Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Paying Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Paying Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Paying Agent hereunder and without any duty to account therefor to the Lenders or to
provide notice to or consent of the Lenders with respect thereto.
SECTION 7.03. Exculpatory Provisions.
None of the Paying Agent, the Co-Administrative Agents or any Arranger shall have any duties or obligations to the Lenders except those
expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting
the generality of the foregoing, the Paying Agent, the Co-Administrative Agents or the Arrangers, as applicable:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents or that the Paying Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Paying Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may
expose the Paying Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt
any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any debtor relief law;
(c) shall
not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank,
any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness
of the Borrower or any of its Affiliates, that is communicated to, obtained or in the possession of, the Paying Agent, the Co-Administrative
Agents, any Arranger or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Paying Agent herein;
(d) shall
not be required to account to any Lender or any Issuing Bank for any sum or profit received by the Paying Agent for its own account;
(e) shall
not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Paying Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Section 8.01 and Article VI) or (ii) in the absence of its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Paying Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such Default is given in writing to the Paying Agent by the Borrower,
a Lender or an Issuing Bank; and
(f) 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 this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the satisfaction of
any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Paying Agent, or (vi) the utilization of any Issuing Bank’s L/C Commitment (it being understood and agreed that each
Issuing Bank shall monitor compliance with its own L/C Commitment without any further action by the Paying Agent).
SECTION 7.04. Reliance by Paying Agent.
The Paying Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
Paying Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person,
and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance,
or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender
or an Issuing Bank, the Paying Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Paying
Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Advance or the issuance
of such Letter of Credit. The Paying Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.
SECTION 7.05. Indemnification. (a) The
Lenders agree to indemnify the Paying Agent in its capacity as such (to the extent not reimbursed by the Borrower without limiting the
obligation of the Borrower to do so), ratably according to the respective principal amounts of the Revolving Credit Advances then owing
to each of them (or if no Revolving Credit Advances are at the time outstanding or if any Revolving Credit Advances are then owing to
Persons that are not Lenders, ratably according to the respective amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against the Paying Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Paying Agent under the Loan Documents (collectively, the “Indemnified Costs”),
provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Paying Agent’s gross
negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Paying Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Paying Agent in connection with the
preparation, execution, delivery, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Paying Agent is not reimbursed
for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this
Section 7.05 applies whether any such investigation, litigation or proceeding is brought by the Paying Agent, any Lender or a third
party.
(b) The
Lenders agree to indemnify each Issuing Bank (to the extent not reimbursed by the Borrower), ratably according to the respective principal
amounts of the Revolving Credit Advances then owing to each of them (or if no Revolving Credit Advances are at the time outstanding or
if any Revolving Credit Advances are then owing to Persons that are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any Issuing Bank in any way
relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank under the Loan Documents, provided
that no Lender shall be liable for any portion of such indemnified costs resulting from such Issuing Bank’s gross negligence
or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse such Issuing Bank promptly upon demand for
its ratable share of any costs and expenses (including counsel fees) payable by the Borrower under Section 8.03, to the extent such
Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower.
(c) The
failure of any Lender to reimburse the Paying Agent or any Issuing Bank promptly upon demand for its share of any amount required to
be paid by the Lenders to the Paying Agent or an Issuing Bank as provided herein shall not relieve any other Lender of its obligation
hereunder to reimburse the Paying Agent or such Issuing Bank for its Ratable Share of such amount, but no Lender shall be responsible
for the failure of any other Lender to reimburse the Paying Agent or any Issuing Bank for such other Lender’s Ratable Share of
such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each
Lender contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder.
In the case of any investigation, litigation or proceeding giving rise to any indemnification under this Section, this Section applies
whether any such investigation, litigation or proceeding is brought by the Paying Agent, an Issuing Bank, any Lender or a third party.
Each of the Paying Agent and each Issuing Bank agrees to return to the Lenders their respective shares of any amounts paid under this
Section that are subsequently reimbursed by the Borrower.
SECTION 7.06. Delegation of Duties.
The Paying Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document
by or through any one or more sub-agents appointed by the Paying Agent. The Paying Agent and any such sub-agent may perform any and all
of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Paying Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well as activities as Paying Agent. The
Paying Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent
jurisdiction determines in a final and nonappealable judgment that the Paying Agent acted with gross negligence or willful misconduct
in the selection of such sub-agents.
SECTION 7.07. Resignation of Paying Agent.
(a) The Paying Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, subject to the approval of the Borrower so long as no Event
of Default is continuing (such approval not to be unreasonably withheld or delayed), to appoint a successor, which shall be a bank with
an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent
gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective
Date”), then the retiring Paying Agent may on behalf of the Lenders and the Issuing Banks, subject to the approval of the Borrower
so long as no Event of Default is continuing (such approval not to be unreasonably withheld or delayed), appoint a successor Paying Agent
meeting the qualifications set forth above; provided that in no event shall any such successor Paying Agent be a Defaulting Lender.
Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation
Effective Date.
(b) If
the Person serving as Paying Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders
may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Paying Agent
and, subject to the approval of the Borrower so long as no Event of Default is continuing, appoint a successor. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as
shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become
effective in accordance with such notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring Paying Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security
held by the Paying Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring Paying Agent shall
continue to hold such collateral security until such time as a successor Paying Agent is appointed) and (2) if the Paying Agent
shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, all payments, communications and determinations
provided to be made by, to or through the Paying Agent shall instead be made by or to each Lender and each Issuing Bank directly, until
such time as the Required Lenders appoint a successor Paying Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Paying Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Paying Agent, and the retiring Paying Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable
by the Borrower to a successor Paying Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Paying Agent’s resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 8.03 shall continue in effect for the benefit of such retiring Paying 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 Paying Agent
was acting as the Paying Agent.
(b) Any
resignation by Wells Fargo as Paying Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank.
Upon the acceptance of a successor’s appointment as Paying Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank, (b) the retiring Issuing Bank shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank
shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect
to such Letters of Credit.
SECTION 7.08.
Non-Reliance on Paying Agent, the Co-Administrative Agents, the Arrangers and Other Lenders. Each Lender and each Issuing
Bank expressly acknowledges that none of the Paying Agent, the Co-Administrative Agents or any Arranger has made any representation or
warranty to it, and that no act by the Paying Agent, the Co-Administrative Agents or any Arranger hereafter taken, including any consent
to, and acceptance of any assignment or review of the affairs of the Borrower of any Affiliate thereof, shall be deemed to constitute
any representation or warranty by the Paying Agent, the Co-Administrative Agents or any Arranger to any Lender or any Issuing Bank as
to any matter, including whether the Paying Agent, the Co-Administrative Agents or the Arrangers have disclosed material information
in their (or their Related Parties’) possession. Each Lender and each Issuing Bank expressly acknowledges, represents and warrants
to the Paying Agent, the Co-Administrative Agents and the Arrangers that (a) the Loan Documents set forth the terms of a commercial
lending facility, (b) it is engaged in making, acquiring, purchasing or holding commercial loans in the ordinary course and is entering
into this Agreement and the other Loan Documents to which it is a party as a Lender or an Issuing Bank for the purpose of making, acquiring,
purchasing and/or holding the commercial loans set forth herein as may be applicable to it, and not for the purpose of investing in the
general performance or operations of the Borrower and its Subsidiaries, or for the purpose of making, acquiring, purchasing or holding
any other type of financial instrument such as a security, (c) it is sophisticated with respect to decisions to make, acquire, purchase
or hold the commercial loans applicable to it and either it or the Person exercising discretion in making its decisions to make, acquire,
purchase or hold such commercial loans is experienced in making, acquiring, purchasing or holding commercial loans, (d) it has,
independently and without reliance upon the Paying Agent, the Co-Administrative Agents, the Arrangers or any other Lender or any of their
respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and
appraisal of, and investigations into, the business, prospects, operations, property, assets, liabilities, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries, all applicable bank or other regulatory Applicable Laws relating to the transactions
contemplated by this Agreement and the other Loan Documents and (e) it has made its own independent decision to enter into this
Agreement and the other Loan Documents to which it is a party and to extend credit hereunder and thereunder. Each Lender and each Issuing
Bank also acknowledges and agrees that (i) it will, independently and without reliance upon the Paying Agent, the Co-Administrative
Agents, the Arrangers or any other Lender or any of their respective Related Parties (A) continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder based on such documents and information as it shall from time to time deem appropriate
and its own independent investigations and (B) continue to make such investigations and inquiries as it deems necessary to inform
itself as to the Borrower and its Subsidiaries and (ii) it will not assert any claim under any federal or state securities law or
otherwise in contravention of this Section 7.08.
SECTION 7.09. No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners, Co-Administrative Agents, Arrangers, syndication agent or co-documentation
agents 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 Paying Agent, a Lender or an Issuing Bank hereunder.
SECTION 7.10. Paying Agent May File
Proofs of Claim. In case of the pendency of any proceeding under any debtor relief law or any other judicial proceeding relative
to the Borrower, the Paying Agent (irrespective of whether the principal of any Advance or Letter of Credit Obligation shall then be
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Paying Agent shall have made any demand
on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Advances, Letter of Credit
Obligations 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 Paying Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the Issuing Banks and the Paying Agent and their respective agents and counsel
and all other amounts due the Lenders, the Issuing Banks and the Paying Agent under Sections 2.04 and 8.03) allowed in such judicial
proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments
to the Paying Agent and, in the event that the Paying Agent shall consent to the making of such payments directly to the Lenders and
the Issuing Banks, to pay to the Paying Agent any amount due for the reasonable compensation, expenses, disbursements and advances of
the Paying Agent and its agents and counsel, and any other amounts due the Paying Agent under Sections 2.04 and 8.03.
Nothing contained herein shall be deemed to authorize the Paying Agent
to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment
or composition affecting the obligations or the rights of any Lender or any Issuing Bank to authorize the Paying Agent to vote in respect
of the claim of any Lender or any Issuing Bank in any such proceeding.
SECTION 7.11. Lender
ERISA Representation. (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 Paying Agent and the Co-Administrative Agents and not, for the avoidance of doubt, to or for the benefit
of the Borrower, that at least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters
of Credit, the Commitments or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, 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 Advances, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Advances, 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 Advances, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Paying Agent and Co-Administrative Agents, in their
sole discretion, and such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Paying Agent and Co-Administrative Agents and not, for the avoidance of doubt, to or for the benefit
of the Borrower, that none of the Paying Agent and Co-Administrative Agents is a fiduciary with respect to the assets of such Lender
involved in such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters of Credit,
the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Paying Agent or Co-Administrative
Agents under this Agreement, any Loan Document or any documents related hereto or thereto).
As used in this Section, the following terms shall
have the following meanings:
“Benefit Plan” means any of (a) an
“employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined
in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee
benefit plan” or “plan”.
“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.
SECTION 7.12. Erroneous Payments.
(a) Each
Lender, each Issuing Bank and any other party hereto hereby severally agrees that if (i) the Paying Agent notifies (which such
notice shall be conclusive absent manifest error) such Lender or Issuing Bank or any other Person that has received funds from the Paying
Agent or any of its Affiliates, either for its own account or on behalf of a Lender or Issuing Bank (each such recipient, a “Payment
Recipient”) that the Paying Agent has determined in its sole discretion that any funds received by such Payment Recipient were
erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such
Payment Recipient) or (ii) any Payment Recipient receives any payment from the Paying Agent (or any of its Affiliates) (x) that
is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the
Paying Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was not preceded
or accompanied by a notice of payment, prepayment or repayment sent by the Paying Agent (or any of its Affiliates) with respect to such
payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or received
in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such amounts
specified in clauses (i) or (ii) of this Section 7.12(a), whether received as a payment, prepayment or repayment of principal,
interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case,
such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided
that nothing in this Section shall require the Paying Agent to provide any of the notices specified in clauses (i) or (ii) above.
Each Payment Recipient agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim,
defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Paying Agent for the return of any
Erroneous Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(b) Without
limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall
promptly notify the Paying Agent in writing of such occurrence.
(c) In
the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the Paying
Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Paying Agent, and upon demand from the
Paying Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf
to), promptly, but in all events no later than one Business Day thereafter, return to the Paying Agent the amount of any such Erroneous
Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received, together with
interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such
Payment Recipient to the date such amount is repaid to the Paying Agent at the greater of the Federal Funds Rate and a rate determined
by the Paying Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Paying Agent for any reason, after demand therefor by
the Paying Agent in accordance with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of
a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at
the sole discretion of the Paying Agent and upon the Paying Agent’s written notice to such Lender (i) such Lender shall be
deemed to have made a cashless assignment of the full face amount of the portion of its Loans (but not its Commitments) with respect
to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Paying Agent or, at the option
of the Paying Agent, the Paying Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment Return
Deficiency (or such lesser amount as the Paying Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous
Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus any accrued and unpaid interest on such
assigned amount, without further consent or approval of any party hereto and without any payment by the Paying Agent or its applicable
lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge and agree that (1) any
assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by
the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the event of any
conflict with the terms and conditions of Section 8.06 and (3) the Paying Agent may reflect such assignments in the Register
without further consent or action by any other Person.
(e) Each
party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient
that has received such Erroneous Payment (or portion thereof) for any reason, the Paying Agent (1) shall be subrogated to all the
rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts
at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Paying Agent to such
Payment Recipient from any source, against any amount due to the Paying Agent under this Section 7.12 or under the indemnification
provisions of this Agreement and (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this
Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed by the Borrower 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 Paying Agent from the Borrower for the purpose of making a payment on the obligations of the Borrower under
this Agreement.
(f) Each
party’s obligations under this Section 7.12 shall survive the resignation or replacement of the Paying Agent or any transfer
of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge
of all obligations of the Borrower under this Agreement (or any portion thereof) under any Loan Document.
(g) Nothing
in this Section 7.12 will constitute a waiver or release of any claim of the Paying Agent hereunder arising from any Payment Recipient’s
receipt of an Erroneous Payment.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01.
Waivers; Amendments, Etc. (a) No failure or delay on the part of the Paying Agent, the Issuing Banks or any
Lender in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuation 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 Paying Agent, the Issuing Banks and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement
or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below
(other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.17 or by an assignee
pursuant to Section 8.06, which may be waived by unilateral consent of the Borrower), and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof 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 and either acknowledged by or notified to
the Paying Agent or (ii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Borrower
and the applicable Issuing Bank; provided, however, that no such agreement shall (A) change the principal amount of
any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment
(but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.17), forgive any such payment
or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected
thereby, (B) increase the amount or extend the termination date of the Commitment (including the Acorn Closing Date Additional Commitment)
of any Lender (other than as provided in Section 2.17 or 2.19) or reduce or extend the date for payment of the Commitment Fees or
other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or (C) amend
or modify the proviso of Section 2.01(c)(ii), or the provisions of Section 2.13, this Section 8.01(b), the definition
of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required
to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior
written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights
or duties of the Paying Agent or the Issuing Banks hereunder without the prior written consent of the Paying Agent or the Issuing Banks,
respectively. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or
each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment
or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely
than other affected Lenders shall require the consent of such Defaulting Lender.
(c) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with
such enforcement shall be instituted and maintained exclusively by, the Paying Agent in accordance with Article VI for the benefit
of all the Lenders and the Issuing Banks; provided, however, that the foregoing shall not prohibit (a) the Paying
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Paying Agent) hereunder
and under the other Loan Documents, (b) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely
in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance
with Section 8.04 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and
filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief law; and provided,
further, that if at any time there is no Person acting as Paying Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Paying Agent pursuant to Article VI and (ii) in addition to
the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may,
with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 8.02.
Notices, Etc. (a) Notices. Except as otherwise expressly permitted herein, notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy, as follows:
(i) if
to the Borrower or the Paying Agent, to the address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 8.02; and
(ii) If
to any Lender (including in its capacity as Issuing Bank), at its address (or telecopy number) set forth on its Administrative Questionnaire
provided to the Paying Agent prior to the date hereof or in the Assumption Agreement or Assignment and Acceptance pursuant to which such
Lender shall have become a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight
courier service or sent by telecopy (except that, if a notice or communication sent by telecopy is 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
for the recipient), or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in Section 8.02 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 8.02. The Paying Agent shall deliver to the Borrower a copy of each Administrative
Questionnaire received by it.
(b) Electronic
Communications. Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Paying Agent, provided
that the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing Bank,
as applicable, has notified the Paying Agent that it is incapable of receiving notices under such Article by electronic communication.
The Paying Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Paying Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available
and identifying the website address therefor.
(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Paying
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender,
any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Paying Agent’s transmission of Borrower Materials through the Internet, except
to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final
and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change
of Address, Etc. Each of the Borrower, the Paying Agent and the Issuing Banks may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to the Borrower, the Paying Agent and the Issuing Banks.
In addition, each Lender agrees to notify the Paying Agent from time to time to ensure that the Paying Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications
may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual
at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable law, including United States Federal and state securities Laws, to make reference
to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state
securities laws.
(e) Reliance
by Paying Agent, Issuing Banks and Lenders. The Paying Agent, the Issuing Banks and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Notices of Issuance or Notices of Borrowings) purportedly given by or on behalf of the Borrower
even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.
The Borrower shall indemnify the Paying Agent, each Issuing Bank, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower,
except to the extent that such losses, costs, expenses and liabilities have resulted from the gross negligence or willful misconduct
of such Person. All telephonic notices to and other telephonic communications with the Paying Agent may be recorded by the Paying Agent,
and each of the parties hereto hereby consents to such recording.
SECTION 8.03. Expenses; Indemnity; Damage
Waiver. (a) The Borrower agrees to pay (i) the reasonable fees, disbursements and other charges of counsel for
the Paying Agent and the Issuing Banks incurred in connection with the preparation of this Agreement and the other Loan Documents or
in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) and (ii) all reasonable out-of-pocket expenses incurred by the Paying Agent, the Issuing Banks
or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents
or in connection with the Advances or the Letters of Credit issued hereunder, including the reasonable fees, disbursements and other
charges of Davis Polk & Wardwell LLP, counsel for the Paying Agent and the Issuing Banks, in connection with any such enforcement
or protection and the reasonable fees, disbursements and other charges of any other counsel for the Paying Agent, the Issuing Banks or
any Lender.
(b) The
Borrower agrees to indemnify the Paying Agent, the Issuing Banks and each Lender and each of their respective Related Parties (each such
person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees (but limited, in the case of legal fees and expenses, to
the reasonable and documented or invoiced out-of-pocket fees and expenses of one counsel, but excluding the allocated cost of internal
counsel, representing all of the Indemnitees, taken as a whole, and, if necessary, of a single local counsel in each appropriate jurisdiction
(which may include a single special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as whole (and, in the case
of an actual or perceived conflict of interest where the Indemnitee affected by such conflict notifies the Borrower of the existence
of such conflict and thereafter retains its own counsel, those of another firm of counsel for each such affected Indemnitee and, if necessary,
of a single local counsel in each appropriate jurisdiction)), disbursements and other charges, incurred by or asserted against any Indemnitee
by any third party or by the Borrower arising out of, in any way connected with, or as a result of (i) the execution or delivery
of this Agreement or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of
their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) the
use of the Letters of Credit or proceeds of the Advances or (iii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether brought by a third party or by the Borrower 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 losses, claims, damages, liabilities
or related expenses is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from (x) such
Indemnitee’s gross negligence or willful misconduct, (y) such Indemnitee’s material breach of its obligations under
this Agreement or (z) disputes solely among Indemnitees not arising from or in connection with any act or omission by the Borrower
or any of its affiliates (other than any proceedings against an Arranger, a Co-Administrative Agent or the Paying Agent, in each case,
in its capacity or in fulfilling its role as an administrative agent, paying agent or arranger or other similar role under this Agreement).
The Borrower shall not be liable for any settlement of any suit, litigation or proceeding effected without its prior written consent
(which consent shall not be unreasonably withheld or delayed), but if settled with the prior written consent of the Borrower or if there
is a final judgment in any such suit, litigation or proceeding, the Borrower shall indemnify and hold harmless each Indemnitee from and
against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with this
Section. This Section 8.03(b) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc.
arising from any non-Tax claim.
(c) If
any payment of principal of any Term SOFR Advance is made other than on the last day of the Interest Period for such Advance, as a result
of any Conversion, payment pursuant to Section 2.06, prepayment pursuant to Section 2.10(a) or acceleration of the maturity
of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of
such demand to the Paying Agent), pay to the Paying Agent for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may incur as a result of such payment, including any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(d) Each
of the Borrower and each of the Paying Agent, any Issuing Bank, any Lender or any of their respective Related Parties (each such person
being called a “Lender-Related Person”) agrees not to assert against any other party hereto any claim for special,
indirect, consequential or punitive damages arising out of or otherwise relating to the Advances, this Agreement, any of the transactions
contemplated hereby or the actual or proposed use of the Letters of Credit of the proceeds of the Advances; provided, that nothing in
this sentence shall limit the Borrower’s indemnity and reimbursement obligations set forth in Section 8.03(b) with respect
to any indirect, special, punitive or consequential damages included in any third party claim in connection with which an Indemnitee
is entitled to indemnification and reimbursement hereunder. No Lender-Related Person shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended recipients by such Lender-Related Person
through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence
or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.
(e) The
provisions of this Section 8.03 shall remain operative and in full force and effect regardless of the expiration of the term of
this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Advances, the invalidity or unenforceability
of any term or provision of this Agreement, or any investigation made by or on behalf of the Paying Agent, the Issuing Banks or any Lender.
All amounts due under this Section 8.03 shall be payable on written demand therefor.
SECTION 8.04.
Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized, in addition
to any other right or remedy that any Lender may have by operation of law or otherwise, at any time and from time to time, without notice
to the Borrower (any such notice being expressly waived by the Borrower), to exercise its banker’s lien or right of setoff and
apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement and any Note held by such Lender, irrespective of whether such Lender shall have made
any demand under this Agreement or any Note and although such obligations may be unmatured; 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 Paying Agent for further application in accordance with the provisions of Section 2.21 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 Paying Agent and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Paying Agent a statement describing in reasonable detail the obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender may have.
SECTION 8.05. Binding Effect. This Agreement
shall become effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of the Borrower, the Paying
Agent, the Issuing Banks and each Lender and their respective successors and assigns, except that the Borrower shall not have the right
to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.
SECTION 8.06.
Successors and Assigns. (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Paying Agent
and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (e) of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (g) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section 8.06
and, to the extent expressly contemplated hereby, the Related Parties of each of the Paying Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Advances (including for purposes of this subsection (b), participations
in Letter of Credit Obligations) at the time owing to it); provided that any such assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Advances at the time owing
to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such Assignments) that equal at least
the amount specified in clause (b)(i)(B) of this Section 8.06 in the aggregate or in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in
any case not described in clause (b)(i)(A) of this Section 8.06, the aggregate amount of the Commitment (which for this
purpose includes Advances and participations in Letter of Credit Obligations outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is delivered to the Paying Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Paying Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed).
(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Advances, the Letter of Credit Obligations and the Commitment assigned.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 8.06
and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default
pursuant to Section 6.01(a) or Section 6.01(e) has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented
to any such assignment unless it shall object thereto by written notice to the Paying Agent within ten Business Days after having received
notice thereof;
(B) the
consent of the Paying Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
(C) the
consent of each Issuing Bank shall be required for any assignment (such consent not to be unreasonably withheld or delayed).
(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Paying Agent an Assignment and Assumption, together
with a processing and recordation fee in the amount of $3,500; provided, however, that the Paying Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Paying Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons).
(vi) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Paying Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding,
with the consent of the Borrower and the Paying Agent, the applicable pro rata share of Advances previously requested but not funded
by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy
in full all payment liabilities then owed by such Defaulting Lender to the Paying Agent, any Issuing Bank or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in
Letters of Credit in accordance with its Ratable Share. Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of
this clause (vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until
such compliance occurs.
(vii) Subject
to acceptance and recording thereof by the Paying Agent pursuant to clause (c) of this Section 8.06, from and after
the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 2.11, 2.14 and 8.03 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided
that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute
a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request,
the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this clause (b) 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 clause (d) of this Section 8.06.
(c) Register.
The Paying Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for Tax purposes), shall maintain
at the Paying Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic
form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and
stated interest) of the Advances and Letter of Credit Obligations 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 Paying
Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Paying Agent, sell participations to any Person
(other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of
one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Advances (including such Lender’s participations in Letter of Credit Obligations)
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 Paying Agent, the Lenders and the Issuing Banks shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity
under Section 7.05 without regard to the existence of any participation.
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, waiver or other modification described
in the first proviso to Section 8.01(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.11, 2.14 and 8.03(c) to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to clause (b) of this Section 8.06 (it being understood that the documentation required under
Section 2.14(f) shall be delivered to the Lender who sells the participation); provided that such Participant (A) agrees
to be subject to the provisions of Section 2.22 as if it were an assignee under clause (b) of this Section 8.06 and (B) shall
not be entitled to receive any greater payment under Sections 2.11 or 2.14, with respect to any participation, than the Lender from whom
it acquired the applicable participation would have been entitled to receive, unless the sale of the participation to such Participant
is made with the Borrower’s prior written consent expressly acknowledging that such Participant’s entitlement to the benefits
under Sections 2.11 and 2.14 is not limited to what the participating Lender would have been entitled to receive absent the participation.
Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with
the Borrower to effectuate the provisions of Section 2.22 with respect to any Participant. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 8.04 as though it were a Lender; provided that such Participant
agrees to be subject to Section 2.13 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 Advances or other obligations under the Loan
Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or
any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s
interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) 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 Paying Agent
(in its capacity as Paying Agent) shall have no responsibility for maintaining a Participant Register.
(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Resignation
as L/C Issuer after Assignment. Notwithstanding anything to the contrary contained herein, if at any time any Issuing Bank assigns
all of its Commitment and Advances pursuant to clause (b) above, such Issuing Bank may, upon 30 days’ notice to the
Paying Agent, the Borrower and the Lenders, resign as an Issuing Bank. In the event of any such resignation as an Issuing Bank, the Borrower
shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of the applicable Issuing Bank as an Issuing Bank. If the
applicable Issuing Bank resigns as an Issuing Bank, it shall retain all the rights, powers, privileges and duties of an Issuing Bank
hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date of its resignation as an Issuing
Bank and all Letter of Credit Obligations with respect thereto (including the right to require the Lenders to make Base Rate Advances
or fund risk participations pursuant to Section 2.03(c)). Upon the acceptance of a successor’s appointment as an Issuing Bank
hereunder, (x) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank and (y) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to the applicable retiring Issuing Bank to effectively
assume the obligations of the applicable retiring Issuing Bank with respect to such Letters of Credit.
(g) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle (an “SPC”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender
to the Paying Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement provided that (i) nothing herein shall constitute
a commitment to make any Advance by any SPC and (ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making
of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for which
a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance
of the foregoing, each party hereto hereby agrees that, prior to the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.06, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the Paying Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (if consented to by
the Borrower and the Paying Agent) providing liquidity and/or credit facilities to or for the account of such SPC to fund the Advances
made by such SPC or to support the securities (if any) issued by such SPC to fund such Advances and (ii) disclose on a confidential
basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of a surety, guarantee
or credit or liquidity enhancement to such SPC.
SECTION 8.07. Confidentiality. Unless
otherwise agreed to in writing by the Borrower, the Paying Agent and each Lender hereby agree to keep all Proprietary Information (as
defined below) confidential and not to disclose or reveal any Proprietary Information to any Person other than the Paying Agent’s
or such Lender’s directors, officers, employees, Affiliates and agents and to actual or potential assignees and participants, and
then only on a confidential basis; provided, however, that the Paying Agent or any Lender may disclose Proprietary Information
(a) as required by law, rule, regulation or judicial process or in connection with any litigation or other proceeding relating to
this Agreement (provided that the applicable Person shall give the Borrower notice of such disclosure on the same day on which it determines
such disclosure to be necessary and in any event prior to such disclosure to the extent not prohibited by law, and, if prior notice is
prohibited by law, shall give notice of such disclosure as promptly as is legally permitted), (b) to its attorneys and accountants,
(c) as required by any state, or Federal or foreign authority or examiner regulating banks or banking, and (d) subject to an
agreement containing provisions substantially the same as those of this Section which inures to the benefit of the Borrower, to
(i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under
this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.17 or 2.19 or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations. For purposes of this
Agreement, the term “Proprietary Information” shall include all information about the Borrower or any of its Affiliates
that has been furnished by the Borrower or any of its Affiliates, whether furnished before or after the Effective Date, and regardless
of the manner in which it is furnished; provided, however, that Proprietary Information does not include information that
(i) is or becomes generally available to the public other than as a result of a disclosure by the Paying Agent or any Lender not
permitted by this Agreement, (ii) was available to the Paying Agent or any Lender on a nonconfidential basis prior to its disclosure
by the Paying Agent or such Lender by the Borrower or any of its Affiliates or (iii) becomes available to the Paying Agent or any
Lender on a nonconfidential basis from a Person other than the Borrower or its Affiliates who, to the best knowledge of the Paying Agent
or such Lender, as the case may be, is not otherwise bound by a confidentiality agreement with the Borrower or any of its Affiliates,
or is not otherwise prohibited from transmitting the information to the Paying Agent or such Lender. For the avoidance of doubt, nothing
herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations
to a governmental, regulatory or self-regulatory authority in accordance with applicable whistleblower laws.
SECTION 8.08. Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of New York; provided, however, that (a) the
interpretation of the definition of “Acorn Material Adverse Effect” (and whether or not an Acorn Material Adverse Effect
has occurred or would reasonably be expected to occur), (b) the determination of the accuracy of any Acorn Acquisition Agreement
Representation and whether as a result of such inaccuracy the Borrower (or an Affiliate of the Borrower) has the right to terminate its
obligations under the Acorn Acquisition Agreement or to decline to consummate the Acorn Acquisition as a result of a breach of such representations
in the Acorn Acquisition Agreement and (c) the determination of whether the Acorn Acquisition has been consummated in accordance
with the terms of the Acorn Acquisition Agreement shall, in each case, be governed by, and construed in accordance with, the laws of
the State of Delaware, without giving effect to the principles of conflicts of law thereof.
SECTION 8.09. Execution in Counterparts;
Integration. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic medium shall be effective
as delivery of a manually executed counterpart of this Agreement. This Agreement, the other Loan Documents and any separate letter agreements
with respect to fees payable to the Paying Agent, any Arranger or any Issuing Bank, 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.
SECTION 8.10.
Jurisdiction; Consent to Service of Process. (a) The Borrower hereby irrevocably and unconditionally agrees that
it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or
in tort or otherwise, against the Paying Agent, any Lender, or any affiliates, officers, directors, employees, agents and advisors
of the foregoing in any way relating to this Agreement or the transactions relating hereto, in any forum other than the courts of the
State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate
court from any thereof, and each of the parties hereto hereby irrevocably and unconditionally submits to the jurisdiction of such courts
and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(b) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that
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 in
any New York State or Federal court. 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.
(c) Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in
this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.11.
Patriot Act. Each Lender that is subject to the Act (as hereinafter defined) and the Paying Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the
Paying Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly following a request by
the Paying Agent or any Lender, provide all documentation and other information that the Paying Agent or such Lender reasonably requests
that is necessary to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering
rules and regulations, including the Act.
SECTION 8.12.
No Liability of the Issuing Banks. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no
Issuing Bank shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required
by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the Issuing Banks, the Paying Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of an Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability
of any document or instrument related to any Letter of Credit or Letter of Credit Agreement. The Borrower assumes all risks of the acts
or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies
as it may have against the beneficiary or transferee at law or under any other agreement. Neither an Issuing Bank, the Paying Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of such Issuing Bank shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should
prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation
of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower,
to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by such Issuing
Bank’s willful misconduct or gross negligence when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary,
and such Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; provided that nothing herein shall be deemed to excuse such Issuing Bank if it acts
with gross negligence or willful misconduct in accepting such documents. Each Issuing Bank may send a Letter of Credit or conduct
any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”)
message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
SECTION 8.13. No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services
regarding this Agreement provided by the Paying Agent, the Co-Administrative Agents, the Arrangers, the Issuing Banks and the Lenders
are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Paying Agent, the Co-Administrative
Agents, the Arrangers, the Issuing Banks and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Paying Agent, each Co-Administrative Agent, each Arranger, each Issuing Bank and each Lender is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) none of the Paying Agent, any Co-Administrative
Agent, any Arranger, any Issuing Bank or any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Paying Agent,
the Co-Administrative Agents, the Arrangers, the Issuing Banks and the Lenders and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Paying Agent,
any Co-Administrative Agent, any Arranger, any Issuing Bank or any Lender has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have
against the Paying Agent, the Co-Administrative Agents, the Arrangers, the Issuing Banks and the Lenders with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 8.14 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in this Agreement or in any other
agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any Affected Financial
Institution arising under this Agreement, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion
Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(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.
As used in this Agreement, the following terms shall
have the following meanings:
“Affected Financial Institution”
means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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).
“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.
“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.
“Resolution Authority” means
an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“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 8.15 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap
Contract 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):
(a) In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S.
Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)
were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of
a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that
might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As
used in this Section 8.15, the following terms have the following meanings:
“BHC Act Affiliate” of a party
means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of
the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned
to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Swap Contract” means (a) any
and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond
or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts,
or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind,
and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published
by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other
master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including
any such obligations or liabilities under any Master Agreement.
SECTION 8.16. Electronic
Execution of Assignments and Certain Other Documents . The words “execute,” “execution,” “signed,”
“signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the
transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Notices
of Borrowing, Notices of Issuance, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of
assignment terms and contract formations on electronic platforms approved by the Paying Agent, or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based
on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Paying
Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the
Paying Agent pursuant to procedures approved by it.
[The rest of this page is intentionally left
blank.]
SECTION 8.17
Waiver of Jury Trial. Each of the Borrower, the Paying Agent, the Issuing Banks and the Lenders hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating
to this Agreement or the actions of the Paying Agent, any Issuing Bank or any Lender in the negotiation, administration, performance
or enforcement thereof.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first
above written.
|
THE KROGER CO. |
|
|
|
By: |
/s/
Carin L. Fike |
|
Name: |
Carin L. Fike |
|
Title: |
Vice President and Treasurer |
[Signature Page to
Kroger Credit Agreement]
|
WELLS FARGO BANK,
NATIONAL
ASSOCIATION, as Co-Administrative
Agent and Paying Agent |
|
|
|
By: |
/s/
Bina Barnes |
|
Name: |
Bina Barnes |
|
Title: |
Vice President |
[Signature Page to
Kroger Credit Agreement]
|
WELLS FARGO BANK,
NATIONAL
ASSOCIATION, as a Lender and an Issuing
Bank |
|
|
|
By: |
/s/
Bina Barnes |
|
Name: |
Bina Barnes |
|
Title: |
Vice President |
[Signature Page to
Kroger Credit Agreement]
|
CITIBANK, N.A.,
as Co-Administrative
Agent |
|
|
|
By: |
/s/
Michael Vondriska |
|
Name: |
Michael Vondriska |
|
Title: |
Vice President |
[Signature Page to
Kroger Credit Agreement]
|
CITIBANK, N.A.,
as a Lender and an
Issuing Bank |
|
|
|
By: |
/s/
Michael Vondriska |
|
Name: |
Michael Vondriska |
|
Title: |
Vice President |
[Signature Page to
Kroger Credit Agreement]
|
MIZUHO BANK, LTD.,
as a Lender and an
Issuing Bank |
|
|
|
By: |
/s/
Tracy Rahn |
|
Name: |
Tracy Rahn |
|
Title: |
Managing Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
Truist Bank, as
a Lender and an
Issuing Bank |
|
|
|
By: |
/s/
Lisa Garling |
|
Name: |
Lisa Garling |
|
Title: |
Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
U.S. Bank National
Association, as a Lender and an
Issuing Bank |
|
|
|
By: |
/s/
Joyce P. Dorsett |
|
Name: |
Joyce P. Dorsett |
|
Title: |
Senior Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
Fifth Third Bank,
National Association, as a Lender |
|
|
|
By: |
/s/
Miranda C. Stokes |
|
Name: |
Miranda C. Stokes |
|
Title: |
Managing Director, SVP |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
GOLDMAN SACHS BANK
USA, as a Lender |
|
|
|
By: |
/s/
Ananda DeRoche |
|
Name: |
Ananda DeRoche |
|
Title: |
Authorized Signatory |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
JPMorgan Chase Bank,
N.A., as a Lender |
|
|
|
By: |
/s/
Charles W. Shaw |
|
Name: |
Charles W. Shaw |
|
Title: |
Executive Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
MUFG Bank, LTD.,
as a Lender |
|
|
|
By: |
/s/
Reema Sharma |
|
Name: |
Reema Sharma |
|
Title: |
Authorized Signatory |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
PNC Bank, National
Association, as a Lender |
|
|
|
By: |
/s/
Cory Schimmoeller |
|
Name: |
Cory Schimmoeller |
|
Title: |
Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
ROYAL BANK OF CANADA,
as a Lender |
|
|
|
By: |
/s/
Julia Ivanova |
|
Name: |
Julia Ivanova |
|
Title: |
Authorized Signatory |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
Sumitomo Mitsui
Banking Corporation, as a Lender |
|
|
|
By: |
/s/
Rosa Pritsch |
|
Name: |
Rosa Pritsch |
|
Title: |
Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
THE BANK OF NEW
YORK MELLON, as a Lender |
|
|
|
By: |
/s/
Thomas J. Tarasovich, Jr. |
|
Name: |
Thomas
J. Tarasovich, Jr. |
|
Title: |
Senior
Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
THE BANK OF NOVA
SCOTIA, as a Lender |
|
|
|
By: |
/s/
Todd Kennedy |
|
Name: |
Todd Kennedy |
|
Title: |
Managing Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
The Huntington National
Bank, as a Lender |
|
|
|
By: |
/s/
Scott Lyman |
|
Name: |
Scott Lyman |
|
Title: |
Assistant Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
BMO Bank N.A., as
a Lender |
|
|
|
By: |
/s/
Andrew Degrassi |
|
Name: |
Andrew Degrassi |
|
Title: |
Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
BNP Paribas, as
a Lender |
|
|
|
By: |
/s/
David Foster |
|
Name: |
David Foster |
|
Title: |
Director |
|
|
|
|
By: |
/s/
Claudia Zarate |
|
Name: |
Claudia Zarate |
|
Title: |
Managing Director |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
REGIONS BANK, as
a Lender |
|
|
|
By: |
/s/
Sankar R. Nair |
|
Name: |
Sankar R. Nair |
|
Title: |
Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
The Northern Trust
Company, as a Lender |
|
|
|
By: |
/s/
Andrew D. Holtz |
|
Name: |
Andrew D. Holtz |
|
Title: |
Senior Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
AGFIRST FARM CREDIT
BANK, as a Lender |
|
|
|
By: |
/s/
Matt Jeffords |
|
Name: |
Matt Jeffords |
|
Title: |
Senior Vice President |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
Farm Credit Bank
of Texas, as a Lender |
|
|
|
By: |
/s/
Luis M. H. Requejo |
|
Name: |
Luis M. H. Requejo |
|
Title: |
SVP Director Capital Markets |
|
|
|
[Signature Page to
Kroger Credit Agreement]
|
Farm Credit Mid-America,
PCA, as a Lender |
|
|
|
By: |
/s/
Steven L. Moore |
|
Name: |
Steven L. Moore |
|
Title: |
Vice President |
|
|
|
[Signature
Page to Kroger Credit Agreement]
SCHEDULE I
THE KROGER CO.
CREDIT AGREEMENT
COMMITMENTS
Name of Lender | |
L/C Commitment | | |
Commitment | | |
Acorn Closing
Date Additional
Commitment | | |
Anticipated
Aggregate
Commitments on
Acorn Closing
Date * | |
Wells Fargo Bank, National
Association | |
$ | 70,000,000 | | |
$ | 195,000,000 | | |
$ | 172,000,000 | | |
$ | 367,000,000 | |
Citibank, N.A. | |
$ | 70,000,000 | | |
$ | 195,000,000 | | |
$ | 172,000,000 | | |
$ | 367,000,000 | |
Mizuho Bank, Ltd. | |
$ | 70,000,000 | | |
$ | 195,000,000 | | |
$ | 172,000,000 | | |
$ | 367,000,000 | |
Truist Bank | |
$ | 70,000,000 | | |
$ | 195,000,000 | | |
$ | 172,000,000 | | |
$ | 367,000,000 | |
U.S. Bank National Association | |
$ | 70,000,000 | | |
$ | 195,000,000 | | |
$ | 172,000,000 | | |
$ | 367,000,000 | |
Fifth Third Bank, National Association | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
Goldman Sachs Bank USA | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
JPMorgan Chase Bank, N.A. | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
MUFG Bank, Ltd. | |
| | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
PNC Bank, National Association | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
Royal Bank of Canada | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
Sumitomo Mitsui Banking Corporation | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
The Bank of New York Mellon | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
The Bank of Nova Scotia | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
The Huntington National Bank | |
| - | | |
$ | 157,000,000 | | |
$ | 93,000,000 | | |
$ | 250,000,000 | |
BMO Bank N.A. | |
| - | | |
| - | | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
BNP Paribas | |
| - | | |
| - | | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
Regions Bank | |
| - | | |
| - | | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
The Northern Trust Company | |
| - | | |
$ | 70,000,000 | | |
$ | 55,000,000 | | |
$ | 125,000,000 | |
AgFirst Farm Credit Bank | |
| - | | |
$ | 95,000,000 | | |
| - | | |
$ | 95,000,000 | |
Farm Credit Bank of Texas | |
| - | | |
$ | 40,000,000 | | |
| - | | |
$ | 40,000,000 | |
Farm Credit Mid-America, PCA | |
| - | | |
| - | | |
$ | 30,000,000 | | |
$ | 30,000,000 | |
Total: | |
$ | 350,000,000 | | |
$ | 2,750,000,000 | | |
$ | 2,250,000,000 | | |
$ | 5,000,000,000 | |
* For
informational purposes only. Actual aggregate Commitment on the Acorn Closing Date may differ and is subject to adjustment pursuant to
the terms of the Agreement, including Section 2.05, Section 2.19, Section 2.22 and Section 8.06.
SCHEDULE 2.01(c)
STAND-BY LETTERS OF CREDIT
[Schedule on file with the Administrative Agent]
SCHEDULE 8.02
PAYING AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICES
BORROWER
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202-1100
Attn: Treasurer
PAYING AGENT:
Paying
Agent Office:
(For financial/loan activity – advances, pay down, interest/fee billing and payments, rollovers, rate-settings):
Wells Fargo Bank, National Association
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
MAC D110-019
Attention: Bonnie Kuhlmeyer
Tel: 704-590-2792
Email: agencyservices.requests@wellsfargo.com
Remittance
Instructions:
ABA #: 121000248
Account #: 01104331628807
Attn: Financial Cash Controls
A/C Name: Agency Services Clearing A/C
Issuing Bank’s Office:
(For fee payments due Issuing Bank only and new Letter of Credit
requests and amendments):
Wells Fargo Bank, National Association
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
MAC D110-019
Attention: Bonnie Kuhlmeyer
Tel: 704-590-2792
Email: agencyservices.requests@wellsfargo.com
Remittance
Instructions:
ABA #: 121000248
Account #: 01104331628807
Attn: Financial Cash Controls
A/C Name: Agency Services Clearing A/C
Other Notices as Paying Agent:
(For financial statements, compliance certificates, maturity extension
and commitment change notices, amendments, consents, vote taking, etc)
Wells Fargo Bank, National Association
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
MAC D110-019
Attention: Bina Barnes
Tel: 704-410-1719
Email:
bina.barnes@wellsfargo.com
EXHIBIT A-1 - FORM OF NOTICE OF
BORROWING
Wells Fargo Bank, National Association, as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
Attention:
Ladies and Gentlemen:
The undersigned, The Kroger Co., refers to the Credit
Agreement, dated as of September 13, 2024 (as amended or modified from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto, Citibank, N.A.,
as a Co-Administrative Agent, and Wells Fargo Bank, National Association, as a Co-Administrative Agent and Paying Agent for said Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests
a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed
Borrowing”) as required by Section 2.02(a) of the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is
, 202 .
(ii) The
Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Term SOFR Advances].
(iii) The
aggregate amount of the Proposed Borrowing is $ .
[(iv) The
initial Interest Period for each Term SOFR Advance made as part of the Proposed Borrowing is _____ month[s].]
[(v) The
Proposed Borrowing is a Certain Funds Advance.]
[The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the
representations and warranties contained in Section 4.01 of the Credit Agreement (other than the representations and warranties
in the last sentence of subsection (e) and in subsection (f)) are correct in all material respects (except for those representations
and warranties that are already qualified by “materiality,” “Material Adverse Effect” or similar language, which
shall be true and correct in all respects) on and as of the date of the Proposed Borrowing, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom (it being understood and agreed that (x) 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 (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect”
or similar language shall be true and correct in all respects on such specified date);
(B) no
event has occurred and is continuing, or would result from the Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(C) the
aggregate amount of the Proposed Borrowing and all other Borrowings to be made on the same day under the Credit Agreement does not exceed
the aggregate amount of the Unused Commitments.]1
|
Very truly yours, |
|
|
|
THE KROGER CO. |
|
|
|
By |
|
|
|
Title: |
1 Exclude if the requested Borrowing is a Certain Funds
Advance.
EXHIBIT A-2 - FORM OF
NOTICE OF ISSUANCE
, as Issuing Bank
[Address]
Wells Fargo Bank, National Association, as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
Attention:
Ladies and Gentlemen:
The undersigned, The Kroger Co., refers to the Credit
Agreement, dated as of September 13, 2024 (as amended or modified from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto, Citibank, N.A.,
as a Co-Administrative Agent, and Wells Fargo Bank, National Association, as a Co-Administrative Agent and Paying Agent for said Lenders,
and hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby requests a Letter of Credit
under the Credit Agreement, and in that connection sets forth below the information relating to the Issuance of such Letter of Credit
(the “Proposed Issuance”) as required by Section 2.03(a) of the Credit Agreement:
(i) The
Business Day of the Proposed Issuance is ,
202 .
(ii) The
Available Amount of such Letter of Credit is .
(iii) The
expiration date of such Letter of Credit is ,
202 .
(iv) The
name and address of the beneficiary of such Letter of Credit is .
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the Proposed Issuance:
(A) the
representations and warranties contained in Section 4.01 of the Credit Agreement (other than the representations and warranties
in the last sentence of subsection (e) and in subsection (f)) are correct in all material respects (except for those representations
and warranties that are already qualified by “materiality,” “Material Adverse Effect” or similar language, which
shall be true and correct in all respects) on and as of the date of the Proposed Issuance, before and after giving effect to the Proposed
Issuance and to the application of the proceeds therefrom (it being understood and agreed that (x) 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 (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect”
or similar language shall be true and correct in all respects on such specified date);
(B) no
event has occurred and is continuing, or would result from the Proposed Issuance or from the application of the proceeds therefrom, that
constitutes a Default; and
(C) the
Available Amount of the Proposed Issuance does not exceed (i) the aggregate amount of the Unused Commitments, (ii) the Letter
of Credit Sublimit and (iii) the L/C Commitment of the applicable Issuing Bank.
|
Very truly yours, |
|
|
|
THE KROGER CO. |
|
|
|
By |
|
|
|
Title: |
EXHIBIT A-3 - FORM OF
NOTICE OF
CONVERSION/CONTINUATION
Wells Fargo Bank, National Association, as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
Attention:
Ladies and Gentlemen:
The undersigned, The Kroger Co., refers to the Credit
Agreement, dated as of September 13, 2024 (as amended or modified from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto, Citibank, N.A.,
as a Co-Administrative Agent, and Wells Fargo Bank, National Association, as a Co-Administrative Agent and Paying Agent for said Lenders.
Pursuant to Section 2.09
of the Credit Agreement, the Borrower hereby gives you irrevocable notice of the [conversion][continuation] of the Advances specified
herein, that:
|
(A) |
Type of Advances2 comprising [conversion][continuation]: |
|
|
|
|
|
|
|
|
(B) |
Aggregate amount to be [converted][continued]: |
|
$ |
|
|
|
|
|
|
(C) |
Borrowing to be [converted into][continued as] [Term SOFR]
[Base Rate] Advance: |
|
$ |
|
|
|
|
|
|
(D) |
Date of conversion, which is a Business Day: |
|
|
|
|
|
|
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(E) |
Interest Period and the last day thereof:3 |
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[Signature page follows.]
2 Specify Term SOFR Advances or Base Rate Advances.
3 Applicable for Term SOFR Advances only (select from one
(1), three (3) or six (6) month Interest Periods).
IN WITNESS WHEREOF, the undersigned has caused this notice to be duly
executed and delivered by its proper and duly authorized officer as of the day and year first written above.
EXHIBIT B - FORM OF
ASSIGNMENT AND ACCEPTANCE
This Assignment and Assumption
(this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between
[the][each]4 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]5
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]6 hereunder are several and not joint.]7 Capitalized terms used but
not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and
restated, supplemented or otherwise modified, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged
by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by the Paying Agent as contemplated below (i) all of
[the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities
as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to
the percentage interest[s] identified below of all the outstanding rights and obligations under the Credit Agreement (including, without
limitation, the Letters of Credit) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities
as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively
as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except
as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1. |
Assignor[s]: |
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[Assignor [is] [is not] a Defaulting Lender] |
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2. | Assignee[s]: |
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| [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
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4 For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
5 For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
6 Select as appropriate.
7 Include bracketed language if there are either multiple
Assignors or multiple Assignees.
3. |
Borrower(s): |
The Kroger Co. |
4. | Paying Agent: Wells Fargo Bank, National Association, as the paying agent
under the Credit Agreement |
5. | Credit Agreement: Credit Agreement, dated as of September 13, 2024,
among The Kroger Co., the Lenders from time to time party thereto, Wells Fargo Bank, National Association,
as Paying Agent and Co-Administrative Agent, and Citibank, N.A., as Co-Administrative Agent. |
Assignor[s]8 |
Assignee[s]9 |
Aggregate
Amount of
Commitments / Advances
for all Lenders10 |
Amount of
Commitments / Advances
Assigned |
Percentage
Assigned of
Commitments / Advances11 |
CUSIP
Number |
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$________________ |
$_________ |
____________% |
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$________________ |
$_________ |
____________% |
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$________________ |
$_________ |
____________% |
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Effective Date: ,
20 [TO BE INSERTED BY PAYING AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
8 List each Assignor, as appropriate.
9 List each Assignee and, if available, its market entity
identifier, as appropriate.
10 Amounts in this column and in the column immediately
to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the
Effective Date.
11 Set forth, to at least 9 decimals, as a percentage of
the Commitment/ Advances of all Lenders thereunder.
12 To be completed if the Assignor(s) and the Assignee(s)
intend that the minimum assignment amount is to be determined as of the Trade Date.
The terms set forth in this Assignment and Assumption
are hereby agreed to:
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ASSIGNOR[S]13 |
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[NAME OF ASSIGNOR] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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[NAME OF ASSIGNOR] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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ASSIGNEE[S]14 |
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[NAME OF ASSIGNEE] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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[NAME OF ASSIGNEE] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
[Consented to and]15 Accepted:
Wells Fargo
Bank, National Association, |
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as Paying Agent |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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[Consented to:]16 |
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[NAME OF RELEVANT PARTY], as [ ] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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13 Add additional signature blocks as needed. Include both
Fund/Pension Plan and manager making the trade (if applicable).
14 Add additional signature blocks as needed. Include both
Fund/Pension Plan and manager making the trade (if applicable).
15 To be added only if the consent of the Paying Agent
is required by the terms of the Credit Agreement.
16 To be added only if the consent of the Borrower and/or
other parties (e.g. Issuing Bank[s]) is required by the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1. Assignor[s].
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned
Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has
full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates
or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee.
(1) [The][Each]
Assignee represents and warrants that:
(i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit Agreement;
(ii) it meets
all the requirements to be an assignee under Section 8.06(b)(iii) and (v) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 8.06(b)(iii) of the Credit Agreement);
(iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the
relevant] Assigned Interest, shall have the obligations of a Lender thereunder;
(iv) it is sophisticated
with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising
discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type;
(v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 5.01(h) thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest;
(vi) it has,
independently and without reliance upon the Paying Agent or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest; and
(vii) if it
is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by [the][such] Assignee;
(2) [The][Each]
Assignee agrees that:
(i) it will,
independently and without reliance upon the Paying Agent, [the][any] Assignor or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents;
and
(ii) it will
perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by
it as a Lender.;
2. Payments.
From and after the Effective Date, the Paying Agent shall make all payments in respect of [the][each] Assigned Interest (including payments
of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective
Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing,
the Paying Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date
to [the][the relevant] Assignee.
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the law of the State of New York.
EXHIBIT C - -FORM OF
SOLVENCY CERTIFICATE
[DATE]
This Solvency Certificate
(“Certificate”) of THE KROGER CO., an Ohio corporation (the “Borrower”), and its Subsidiaries is
delivered pursuant to Section 3.03(f)(ii) of the Credit Agreement, dated as of September 13, 2024 (as amended or modified
from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among
the undersigned, certain Lenders parties thereto, Citibank, N.A., as a Co-Administrative Agent, and Wells Fargo Bank, National Association,
as a Co-Administrative Agent and Paying Agent for said Lenders. Unless otherwise defined herein, capitalized terms used in this Certificate
shall have the meanings set forth in the Credit Agreement.
I, [__], the duly elected,
qualified and acting [__] of the Borrower, DO HEREBY CERTIFY, in that capacity only and not in my individual capacity (and without personal
liability), as follows:
1. I
have reviewed the Credit Agreement and the other Loan Documents referred to therein (collectively, the “Transaction Documents”)
and have made such investigation as I have deemed necessary to enable me to express a reasonably informed opinion as to the matters referred
to herein.
2. As
of the date hereof, after giving effect to the Acorn Transactions, the fair value and the present fair saleable value of any and all
property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the probable liability on existing debts of the
Borrower and its Subsidiaries, on a consolidated basis, as they become absolute and matured (it being understood that the amount of contingent
liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing as of the date
hereof, represents the amount that can reasonably be expected to become an actual or matured liability).
3. As
of the date hereof, after giving effect to the Acorn Transactions, the Borrower and its Subsidiaries, on a consolidated basis are able
to pay their debts (including, without limitation, contingent and subordinated liabilities) as they become absolute and mature (it being
understood that the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing as of the date hereof, represents the amount that can reasonably be expected to become an actual or matured
liability).
4. As
of the date hereof, before and after giving effect to the Acorn Transactions, the Borrower and its Subsidiaries are not engaged in businesses
or transactions, nor about to engage in businesses or transactions, for which any property remaining would, on a consolidated basis,
constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which they are engaged.
5. For
the purpose of the foregoing, I have assumed there is no Default under the Credit Agreement on the date hereof and will be no Default
under the Credit Agreement after giving effect to the funding under the Credit Agreement.
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THE KROGER CO. |
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By: |
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Name: |
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Title: |
EXHIBIT D
[Reserved]
EXHIBIT E - FORM OF
ISSUING BANK REPORT
Wells Fargo Bank, National Association, as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
1525 West WT Harris Blvd. 1B1
Charlotte, NC 28262
MAC D110-019
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated
as of September 13, 2024 (as amended or modified from time to time, the “Credit Agreement”) among The Kroger
Co., an Ohio corporation (the “Borrower”), the Lenders (as defined in the Credit Agreement), Wells Fargo Bank, National
Association, as a Co-Administrative Agent and Paying Agent for said Lenders, and Citibank, N.A., as a Co-Administrative Agent. Terms
defined in the Credit Agreement are used herein with the same meaning.
The
undersigned is an Issuing Bank under the Credit Agreement. Pursuant to Section 2.03(d) of the Credit Agreement, undersigned
hereby notifies you of the following event(s) (check all that apply):
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New
issue Letter of Credit |
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Cancellation
of Letter of Credit |
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Letter
of Credit expiry date change |
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Increase
of Available Amount of Letter of Credit |
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Decrease
of Available Amount of Letter of Credit |
Letter of Credit #: |
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Effective date: |
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Beneficiary: |
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Expiry date: |
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Original Available Amount: |
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New Available Amount: |
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Please contact __________ [name] at __________ [phone #] or __________ [email address]
with any questions. |
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[NAME OF ISSUING BANK], as Issuing Bank |
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By |
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Title: |
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Dated: _______________, 202__ |
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cc: The Kroger Co., Assistant Treasurer |
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EXHIBIT F-1
Form of
U.S.
TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Credit Agreement dated as of September 13, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among The Kroger Co., an Ohio corporation (the “Borrower”),
the Lenders (as defined in the Credit Agreement), Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent
for said Lenders, and Citibank, N.A., as a Co-Administrative Agent for said Lenders.
Pursuant to the provisions
of Section 2.14(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial
owner of the Advance(s) (as well as any Note(s) evidencing such Advance(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a
ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it
is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue
Code.
The undersigned has furnished
the Paying Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable).
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform the Borrower and the Paying Agent, and (2) the undersigned shall have at all times furnished the Borrower
and the Paying Agent with a properly completed and currently effective certificate in either the calendar year in which each payment
is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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Date: ________ __, 202__ |
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F-1
U.S. Tax Compliance Certificate
EXHIBIT F-2
Form of
U.S.
TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Credit Agreement dated as of September 13, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among The Kroger Co., an Ohio corporation (the “Borrower”),
the Lenders (as defined in the Credit Agreement), Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent
for said Lenders, and Citibank, N.A., as a Co-Administrative Agent for said Lenders.
Pursuant to the provisions
of Section 2.14(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial
owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Internal Revenue Code.
The undersigned has furnished
its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable). By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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Date: ________ __, 202__ |
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F-2
U.S. Tax Compliance Certificate
EXHIBIT F-3
Form of
U.S.
TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Credit Agreement dated as of September 13, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among The Kroger Co., an Ohio corporation (the “Borrower”),
the Lenders (as defined in the Credit Agreement), Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent
for said Lenders, and Citibank, N.A., as a Co-Administrative Agent for said Lenders.
Pursuant to the provisions
of Section 2.14(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the
participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial
owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members
is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning
of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its
direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Internal Revenue Code.
The undersigned has furnished
its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is
claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY
accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners
that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at
all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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Date: ________ __, 202__ |
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F-3
U.S. Tax Compliance Certificate
EXHIBIT F-4
FORM OF
U.S.
TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For
U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Credit Agreement dated as of September 13, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among The Kroger Co., an Ohio corporation (the “Borrower”),
the Lenders (as defined in the Credit Agreement), Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent
for said Lenders, and Citibank, N.A., as a Co-Administrative Agent for said Lenders.
Pursuant to the provisions
of Section 2.14(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the
Advance(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its
direct or indirect partners/members are the sole beneficial owners of such Advance(s) (as well as any Note(s) evidencing such
Advance(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither
the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into
in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none
of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to
the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished
the Paying Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an IRS
Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if
the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Paying Agent, and
(2) the undersigned shall have at all times furnished the Borrower and the Paying Agent with a properly completed and currently
effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
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By: |
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Name: [Type Signatory Name] |
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Title: [Type Signatory Title] |
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Date: ________ __, 202__ |
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F-4
U.S. Tax Compliance Certificate
Exhibit 10.2
EXECUTION COPY
AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT
This AMENDMENT NO.
2 TO TERM LOAN CREDIT AGREEMENT, dated as of September 13, 2024 (this “Amendment”), is entered into among THE
KROGER CO., an Ohio Corporation (the “Borrower”), the Lenders signatory hereto and CITIBANK, N.A., as administrative
agent (in such capacity, the “Administrative Agent”).
WHEREAS, the Borrower,
the Lenders from time to time party thereto and the Administrative Agent have entered into that certain Term Loan Credit Agreement, dated
as of November 9, 2022 (as amended by that certain Amendment No. 1 to Term Loan Credit Agreement, dated as of July 26,
2024, and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit
Agreement”).
WHEREAS, pursuant
to Section 8.01 of the Credit Agreement, the Borrower, the Lenders party hereto (constituting the Required Lenders under the Credit
Agreement on the Amendment Effective Date (immediately prior to giving effect to this Amendment)) and the Administrative Agent have agreed
to amend the Credit Agreement as provided for herein.
NOW, THEREFORE,
in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto hereby agree as follows:
1. Defined
Terms. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement.
2. Amendment.
Upon satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement is hereby amended to delete
the stricken text (indicated textually in the same manner as the following example: stricken text)
and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the pages of the Amended Credit Agreement in the form of Annex A hereto.
3. Effectiveness.
This Amendment will become effective upon the date (the “Amendment Effective Date”) on which the Administrative Agent
shall have received from the Borrower and the Required Lenders under the Credit Agreement on the Amendment Effective Date (immediately
prior to giving effect to this Amendment) an executed counterpart of this Amendment (or photocopies thereof sent by fax, .pdf or other
electronic means, each of which shall be enforceable with the same effect as a signed original).
4. Representations
and Warranties. The Borrower represents and warrants, as of the date hereof, that, after giving effect to the provisions of this
Amendment, (a) each of the representations and warranties made by the Borrower in Section 4.01 of the Credit Agreement is true
in all material respects on and as of the date hereof as if made on and as of the date hereof, except (i) to the extent that such
representations and warranties refer to an earlier date, in which case they were true in all material respects as of such earlier date
or (ii) to the extent that such representations and warranties are qualified as to materiality or Material Adverse Effect, in which
case such representations and warranties shall be true in all respects, and (b) no event shall have occurred and be continuing,
or would result from this Amendment or the transactions contemplated hereby, that would, as of the Amendment Effective Date, constitute
a Default.
5. Effect
of the Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute
a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any
other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of which, as amended, amended and restated, supplemented
or otherwise modified hereby, are ratified and affirmed in all respects and shall continue in full force and effect. Upon the effectiveness
of this Amendment, each reference in the Credit Agreement and in any exhibits attached thereto to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement after giving
effect to this Amendment.
6. Miscellaneous.
The provisions of Sections 8.03 (Expenses; Indemnity; Damage Waiver), 8.07 (Confidentiality), 8.08 (Governing Law), 8.09 (Execution in
Counterparts; Integration), 8.10 (Jurisdiction; Consent to Service of Process), 8.16 (Electronic Execution of Assignments and Certain
Other Documents) and 8.17 (Waiver of Jury Trial) of the Credit Agreement shall apply with like effect to this Amendment, mutatis mutandis.
This Amendment shall be a “Loan Document” for all purposes under the Credit Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY
BLANK]
IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
| THE KROGER CO. |
| |
| By: | /s/ Carin L. Fike |
| | Name: |
Carin L. Fike |
| | Title: |
Vice President and Treasurer |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| CITIBANK, N.A., as Administrative Agent |
| |
| By: | /s/ Michael Vondriska |
| | Name: |
Michael Vondriska |
| | Title: |
Vice
President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| CITIBANK, N.A., |
| as a Lender |
| |
| By: | /s/ Michael Vondriska |
| | Name: |
Michael Vondriska |
| | Title: |
Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, |
| as a Lender |
| |
| By: | /s/ Bina Barnes |
| | Name: |
Bina Barnes |
| | Title: |
Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| MIZUHO BANK, LTD., |
| as a Lender |
| |
| By: | /s/ Tracy Rahn |
| | Name: |
Tracy Rahn |
| | Title: |
Managing Director |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| Truist Bank |
| as a Lender |
| |
| By: | /s/ Lisa Garling |
| | Name: |
Lisa Garling |
| | Title: |
Director |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION, |
| as a Lender |
| |
| By: | /s/ Joyce P. Dorsett |
| | Name: |
Joyce P. Dorsett |
| | Title: |
Senior Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| JPMORGAN CHASE BANK, N.A., |
| as a Lender |
| |
| By: | /s/ Charles W. Shaw |
| | Name: |
Charles W. Shaw |
| | Title: |
Executive Director |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| MUFG Bank, LTD., |
| as a Lender |
| |
| By: | /s/ Reema Sharma |
| | Name: |
Reema Sharma |
| | Title: |
Authorized Signatory |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| PNC BANK, NATIONAL ASSOCIATION, |
| as a Lender |
| |
| By: | /s/ Cory Schimmoeller |
| | Name: |
Cory Schimmoeller |
| | Title: |
Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| ROYAL BANK OF CANADA, |
| as a Lender |
| |
| By: | /s/ Julia Ivanova |
| | Name: |
Julia Ivanova |
| | Title: |
Authorized Signatory |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| The Huntington National Bank, |
| as a Lender |
| |
| By: | /s/ Scott Lyman |
| | Name: |
Scott Lyman |
| | Title: |
Assistant Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| Fifth Third Bank, National Association, |
| as a Lender |
| |
| By: | /s/ Miranda C. Stokes |
| | Name: |
Miranda C. Stokes |
| | Title: |
Managing Director, SVP |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| The Northern Trust Company, |
| as a Lender |
| |
| By: | /s/ Andrew D. Holtz |
| | Name: |
Andrew D. Holtz |
| | Title: |
Senior Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| The Bank of Nova Scotia, |
| as a Lender |
| |
| By: | /s/ Todd Kennedy |
| | Name: |
Todd Kennedy |
| | Title: |
Managing Director |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| THE BANK OF NEW YORK MELLON, |
| as a Lender |
| |
| By: | /s/ Thomas J. Tarasovich, Jr. |
| | Name: |
Thomas J. Tarasovich, Jr. |
| | Title: |
Senior Vice President |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
| Farm Credit Bank of Texas, |
| as a Lender |
| |
| By: | /s/ Luis M. H. Requejo |
| | Name: |
Luis M. H. Requejo |
| | Title: |
SVP Director Capital Markets |
[Signature Page to Amendment No. 2 to
Term Loan Credit Agreement]
Execution
VersionAnnex A
U.S. $4,750,000,000
TERM LOAN CREDIT AGREEMENT
Dated as of November 9, 2022
Among
THE KROGER CO.
as Borrower
and
THE LENDERS
and
CITIBANK, N.A.
as Administrative Agent
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
MIZUHO BANK, LTD.,
TRUIST BANK,
and
U.S. BANK NATIONAL ASSOCIATION
as Co-Syndication Agents
and
JPMORGAN CHASE BANK, N.A.,
MUFG BANK, LTD.,
PNC BANK, NATIONAL ASSOCIATION,
ROYAL BANK OF CANADA
and
THE HUNTINGTON NATIONAL BANK
as Co-Documentation Agents
CITIBANK, N.A.,
WELLS FARGO SECURITIES LLC,
MIZUHO BANK, LTD.,
TRUIST SECURITIES, INC.
and
U.S. BANK NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I |
|
|
|
SECTION 1.01. Certain Defined Terms |
6 |
|
|
SECTION 1.02. Computation of Time Periods |
24 |
|
|
SECTION 1.03. Accounting Terms |
24 |
|
|
SECTION 1.04. Divisions |
24 |
|
|
SECTION 1.05. Interest Rates |
24 |
|
|
ARTICLE II |
|
|
|
SECTION 2.01. The Advances |
25 |
|
|
SECTION 2.02. Making the Advances |
25 |
|
|
SECTION 2.03. [Reserved] |
26 |
|
|
SECTION 2.04. Fees |
26 |
|
|
SECTION 2.05. Termination or Reduction of the Commitments |
26 |
|
|
SECTION 2.06. Repayment of Advances |
26 |
|
|
SECTION 2.07. Interest on Advances |
26 |
|
|
SECTION 2.08. Interest Rate Determination |
27 |
|
|
SECTION 2.09. Conversion of Advances |
29 |
|
|
SECTION 2.10. Prepayments |
29 |
|
|
SECTION 2.11. Increased Costs; Illegality |
30 |
|
|
SECTION 2.12. Payments and Computations |
30 |
|
|
SECTION 2.13. Sharing of Payments, Etc. |
31 |
|
|
SECTION 2.14. Taxes |
31 |
|
|
SECTION 2.15. Evidence of Debt |
34 |
|
|
SECTION 2.16. Use of Proceeds |
3335 |
|
|
SECTION 2.17. [Reserved] |
35 |
SECTION 2.18. [Reserved] |
35 |
|
|
SECTION 2.19. [Reserved] |
35 |
|
|
SECTION 2.20. [Reserved] |
35 |
|
|
SECTION 2.21. Defaulting Lenders |
35 |
|
|
SECTION 2.22. Mitigation Obligations; Replacement of Lenders |
36 |
|
|
ARTICLE III |
|
|
|
SECTION 3.01. Conditions Precedent to the Effective Date |
37 |
|
|
SECTION 3.02. Conditions Precedent to Borrowing on the Closing Date |
38 |
|
|
SECTION 3.03. Determinations Under Section 3.01 and Section 3.02 |
40 |
|
|
ARTICLE IV |
|
|
|
SECTION 4.01. Representations and Warranties of the Borrower |
40 |
|
|
ARTICLE V |
|
|
|
SECTION 5.01. Affirmative Covenants |
42 |
|
|
SECTION 5.02. Negative Covenants |
45 |
|
|
SECTION 5.03. Financial Covenant |
48 |
|
|
ARTICLE VI |
|
|
|
SECTION 6.01. Events of Default |
48 |
|
|
SECTION 6.02. Limitations on Remedies Between Effective Date and Closing Date |
50 |
|
|
ARTICLE VII |
|
|
|
SECTION 7.01. Appointment and Authority |
51 |
|
|
SECTION 7.02. Rights as a Lender |
51 |
|
|
SECTION 7.03. Exculpatory Provisions |
4851 |
|
|
SECTION 7.04. Reliance by Administrative Agent |
52 |
|
|
SECTION 7.05. Indemnification |
4952 |
|
|
SECTION 7.06. Delegation of Duties |
52 |
|
|
SECTION 7.07. Resignation of Administrative Agent |
52 |
|
|
SECTION 7.08. Non-Reliance on Administrative Agent, Co-Documentation Agents, Co-Syndication Agents, Arrangers and Other Lenders |
53 |
SECTION 7.09. No Other Duties, Etc. |
54 |
|
|
SECTION 7.10. Administrative Agent May File Proofs of Claim |
54 |
|
|
SECTION 7.11. Lender ERISA Representation |
54 |
|
|
SECTION 7.12. Erroneous Payments |
55 |
|
|
ARTICLE VIII |
|
|
|
SECTION 8.01. Waivers; Amendments, Etc. |
57 |
|
|
SECTION 8.02. Notices, Etc. |
58 |
|
|
SECTION 8.03. Expenses; Indemnity; Damage Waiver |
60 |
|
|
SECTION 8.04. Right of Set-off |
5961 |
|
|
SECTION 8.05. Binding Effect |
61 |
|
|
SECTION 8.06. Successors and Assigns |
61 |
|
|
SECTION 8.07. Confidentiality |
65 |
|
|
SECTION 8.08. Governing Law |
65 |
|
|
SECTION 8.09. Execution in Counterparts; Integration; |
66 |
|
|
SECTION 8.10. Jurisdiction; Consent to Service of Process |
66 |
|
|
SECTION 8.11. Patriot Act |
66 |
|
|
SECTION 8.12. [Reserved] |
66 |
|
|
SECTION 8.13. No Advisory or Fiduciary Responsibility |
66 |
|
|
SECTION 8.14. Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
67 |
|
|
SECTION 8.15. Acknowledgement Regarding Any Supported QFCs |
68 |
|
|
SECTION 8.16. Electronic Execution of Assignments and Certain Other Documents |
69 |
|
|
SECTION 8.17 Waiver of Jury Trial |
69 |
|
|
Schedules |
|
Schedule I - Commitments |
|
Schedule 8.02 - Administrative Agent’s Office; Certain Addresses for Notices |
Exhibits |
|
|
|
|
|
Exhibit A |
- |
Form of Notice of Borrowing |
|
|
|
Exhibit B |
- |
Form of Assignment and Acceptance |
|
|
|
Exhibit C |
- |
[Reserved] |
|
|
|
Exhibit D |
- |
[Reserved] |
|
|
|
Exhibit E |
- |
Form of Solvency Certificate |
|
|
|
Exhibit F |
- |
Forms of U.S. Tax Compliance Certificates |
TERM LOAN CREDIT AGREEMENT
Dated as of November 9, 2022
THE KROGER CO., an Ohio corporation (the “Borrower”),
the banks, financial institutions and other institutional lenders party hereto, and CITIBANK, N.A. (“Citibank”), as
administrative agent (in such capacity, the “Administrative Agent”) for the Lenders (as hereinafter defined), agree
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Term Loan Credit Agreement (this “Agreement”),
the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
“Acorn” means Albertsons
Companies, Inc., a Delaware corporation.
“Acorn Acquisition”
means the acquisition by the Borrower, directly or indirectly, of all the issued and outstanding equity interests in Acorn pursuant to
the Acorn Acquisition Agreement.
“Acorn Acquisition Agreement”
means that certain Agreement and Plan of Merger, dated as of October 13, 2022 (together with the exhibits and schedules thereto),
among the Borrower, Kettle Merger Sub, Inc. and Acorn (as the same may be amended, supplemented or otherwise modified from time
to time in accordance therewith and herewith).
“Acorn Acquisition Agreement
Representations” means such of the representations made by or on behalf of Acorn and its Subsidiaries in the Acorn Acquisition
Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or an Affiliate of the Borrower)
has the right to terminate its or its Affiliates’ obligations under the Acorn Acquisition Agreement or to decline to consummate
the Acorn Acquisition as a result of a breach of such representations in the Acorn Acquisition Agreement.
“Acorn Bridge Commitment Letter”
means that certain Commitment Letter, dated as of October 13, 2022, among Citigroup Global Markets Inc., WF Bank, WF Securities
and the Borrower.
“Acorn Bridge Facility”
means the $17,400,000,000 senior unsecured bridge term loan credit facility contemplated by the Acorn Bridge Commitment Letter.
“Acorn Fee Letters”
means (i) that certain Permanent Loan Financing Arranger Fee Letter, dated October 13, 2022, among Citigroup Global Markets
Inc., WF Bank, WF Securities and the Borrower and (ii) that certain Agent Fee Letter, dated October 13, 2022, between Citigroup
Global Markets Inc. and the Borrower pertaining to the term loan credit facilities provided for in this Agreement.
“Acorn Material Adverse Effect”
has the meaning assigned to the term “Company Material Adverse Effect” in the Acorn Acquisition Agreement as in effect on
October 13, 2022.
“Acorn Outside Date”
hasmeans the meaning
assigned toearlier of (a) the term
“Outside Date” under and as defined in
the Acorn Acquisition Agreement (as in
effect on October 13, 2022, including giving effect to any extensions thereto in accordance with Section 8.1(e) of the
Acorn Acquisition Agreement as in effect on Octoberamended,
restated, amended and restated, supplemented or otherwise modified from time to time) and (b) December 313,
20224.
“Acorn Specified Dispositions”
means certain asset dispositions consummated by the Borrower and/or its Subsidiaries (including, upon consummation of the Acorn Acquisition,
Acorn) before, concurrently with, or after the Closing Date, in each case, that are required to be made pursuant to the terms of the
Acorn Acquisition Agreement as in effect on October 13, 2022, in order to obtain regulatory approval to consummate the Acorn Acquisition,
in each case, in excess of (x) $5,000,000 for any individual asset disposition and (y) $10,000,000 for all such asset dispositions
(calculated without giving effect to any individual asset dispositions in clause (x)).
“Administrative Agent”
has the meaning specified in the preamble.
“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 8.02, or such
other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
“Administrative Questionnaire”
means an Administrative Questionnaire in the form approved by the Administrative Agent from time to time.
“Advance” means a
Tranche A Advance or a Tranche B Advance made by a Lender to the Borrower as part of a Borrowing, and refers to a Base Rate Advance or
a Term SOFR Advance.
“Affected Financial Institution”
has the meaning specified in Section 8.14.
“Affiliate” means,
with respect to any designated Person, any other Person that has a relationship with the designated Person whereby either of such Persons
directly or indirectly controls or is controlled by or is under common control with the other of such Persons. The term “control”
means the possession, directly or indirectly, of the power, whether or not exercised, to direct or cause the direction of the management
or policies of any Person, whether through ownership of voting securities, by contract or otherwise.
“Agent Parties” has
the meaning specified in Section 8.02(c).
“Agreement” has the
meaning specified in the preliminary statement of this Section 1.01.
“Anti-Corruption Laws”
means all laws, rules, and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time concerning
or relating to bribery, corruption, or money laundering.
“Applicable Margin”
means, on any date, a percentage per annum determined by reference to the Borrower's Public Debt Rating in effect on such date as set
forth below:
Public Debt Rating (S&P/ Moody’s) | |
Applicable Margin for Base Rate Advances | | |
Applicable Margin for Term SOFR Advances | |
Level 1 > A / A2 | |
| 0.000 | % | |
| 0.875 | % |
Level 2 A- / A3 | |
| 0.000 | % | |
| 1.000 | % |
Level 3 BBB+ / Baa1 | |
| 0.125 | % | |
| 1.125 | % |
Level 4 BBB / Baa2 | |
| 0.250 | % | |
| 1.250 | % |
Level 5 < BBB- / Baa3 | |
| 0.375 | % | |
| 1.375 | % |
“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arrangers” means
Citibank, WF Securities, Mizuho Bank, Ltd., Truist Securities, Inc., and U.S. Bank National Association.
“Assignment and Acceptance”
means an assignment and acceptance entered into by a Lender and an assignee, and to the extent required by Section 8.06, accepted
by the Borrower and the Administrative Agent, in substantially the form of Exhibit B hereto or such other form as shall be approved
by the Administrative Agent.
“Bail-In Action”
has the meaning specified in Section 8.14.
“Base
Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%,
(b) the rate of interest in effect for such day as publicly announced from time to time by Citibank as its “prime rate,”
and (c) Term SOFR plus 1.00%. Any change in such prime rate announced by Citibank shall take effect at the opening of business
on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest
pursuant to Section 2.08(e) hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall
be determined without reference to clause (c) above.
“Base Rate Advance”
means an Advance that bears interest as provided in Section 2.07(a)(i).
“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.
“Borrower” has the
meaning specified in the preamble.
“Borrower Materials”
has the meaning specified in Section 5.01(h).
“Borrowing” means
a borrowing consisting of simultaneous Advances of the same Tranche and of the same Type and, to the extent applicable, with the same
Interest Period, made by each of the Lenders pursuant to Section 2.01.
“Business
Day” means any day other than a Saturday, Sunday or other day on which banks are not required or authorized to close
in New York City; provided that when used in connection with any Term SOFR Advance or the Term SOFR component of any Base
Rate Advance, the term “Business Day” shall also exclude any day on which is not a U.S. Government Securities Business Day.
“Change of Control”
means any one or more of the following events:
(a) the
acquisition, by contract or otherwise, by any Person or group (as such term is defined for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations pertaining thereto),
other than the trusts for the employee benefit plans (as defined in Section 3(2) of ERISA) maintained by the Borrower or any
Subsidiary of the Borrower that is an ERISA Affiliate, of beneficial ownership (within the meaning of Rule 13d-3, or any regulation
or ruling promulgated to replace or supplement Rule 13d-3, of the General Rules and Regulations under the Exchange Act), directly
or indirectly, of securities of the Borrower representing 35% or more of the voting power of all securities of the Borrower, or
(b) during
any period of up to 24 consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning
of such period were directors of the Borrower (together with any new directors whose election by the Board of Directors or whose nomination
for election by the stockholders of the Borrower was approved by a vote of at least a majority of the directors then in office who either
were directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease for
any reason to constitute at least a majority of the Board of Directors of the Borrower.
“Citibank” has the
meaning specified in the preamble.
“Closing Date” means
the date on which the conditions precedent in Section 3.02 have been satisfied (or waived in accordance with Section 8.01).
“CME” means CME Group
Benchmark Administration Limited.
“Co-Documentation Agents”
means JPMorgan Chase Bank, N.A., MUFG Bank, Ltd., PNC Bank, National Association, Royal Bank of Canada and The Huntington National
Bank.
“Commitment” means, as to each Lender, the sum
of its Tranche A Commitment and its Tranche B Commitment.
“Commitment Fee” has the meaning specified in Section 2.04.
“Commitment Fee Percentage”
means, on any date, a percentage per annum determined by reference to the Borrower’s Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating (S&P/ Moody’s) | |
Commitment Fee Percentage | |
Level 1 > A / A2 | |
| 0.070 | % |
Level 2 A- / A3 | |
| 0.090 | % |
Level 3 BBB+ / Baa1 | |
| 0.100 | % |
Level 4 BBB / Baa2 | |
| 0.125 | % |
Level 5 < BBB- / Baa3 | |
| 0.175 | % |
“Commitment
Termination Date” means the earliest of (a) the Acorn Outside Date, (b) the date that the Acorn Acquisition
Agreement is terminated or expires in accordance with the terms thereof, (c) receipt by the Administrative Agent of written notice
from the Borrower of its election to terminate all Commitments hereunder in full and (d) the Closing Date (after giving effect to
the funding of any Advances on such date).
“Conforming
Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor
Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term
SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical,
administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S.
Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length
of lookback periods) as may be appropriate, as determined by the Administrative Agent in consultation with the Borrower, to reflect the
adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a
manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such
market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other
manner of administration as the Administrative Agent, in consultation with the Borrower, determines is reasonably necessary in connection
with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch
profits Taxes.
“Consolidated” refers
to the consolidation of accounts in accordance with GAAP, including principles of consolidation, consistent with those applied in the
preparation of the Consolidated financial statements referred to in Section 4.01(e).
“Consolidated EBITDA”
means, for any period, on a Consolidated basis for the Borrower and its Subsidiaries, (a) the sum of (i) Consolidated Net Income
for such period, (ii) depreciation and amortization expense for such period, (iii) interest expense (excluding estimated
interest expense with respect to anythe
Excluded Ocado CFCs Amountsusing
a weighted average of the lease rates of the Excluded Ocado CFCs for the applicable period) net of interest income for such period,
(iv) Federal and state income taxes for such period as determined in accordance with GAAP, (v) expenses or losses that are
of an unusual nature or infrequently occurring for such period and (vi) LIFO charges that have been included in the calculation
of Consolidated Net Income for such period minus (b) the sum of (i) income or gains that are of an unusual nature or
infrequently occurring for such period and (ii) LIFO credits that have been included in the calculation of Consolidated Net Income
for such period.
“Consolidated Net Income”
means, for any period, the net income of the Borrower and its Consolidated Subsidiaries for such period, before the payment of dividends
on all capital stock, determined in accordance with GAAP.
“Consolidated Net Tangible
Assets” means, to the Borrower and its Subsidiaries on a Consolidated basis determined in accordance with generally accepted
accounting principles, the aggregate amounts of assets (less depreciation and valuation reserves and other reserves and items deductible
from gross book value of specific asset accounts under generally accepted accounting principles) which under generally accepted accounting
principles would be included on a balance sheet after deducting therefrom (a) all liability items except deferred income taxes,
commercial paper, short-term bank Debt, Funded Indebtedness (as defined in the Indenture), other long term liabilities and shareholders’
equity and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles,
which in each case would be so included on such balance sheet.
“Consolidated Tangible Assets”
means, to the Borrower and its Subsidiaries on a Consolidated basis determined in accordance with generally accepted accounting principles,
the aggregate amounts of assets (less depreciation and valuation reserves and other reserves and items deductible from gross book value
of specific asset accounts under generally accepted accounting principles) which under generally accepted accounting principles would
be included on a balance sheet after deducting therefrom all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which would be so included on such balance sheet.
“Convert”, “Conversion”
and “Converted” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.
“Co-Syndication Agents”
means WF Bank, Mizuho Bank, Ltd., Truist Bank and U.S. Bank National Association.
“Covenant Reset Notice”
has the meaning specified in Section 5.03.
“Covenant Reset Period”
has the meaning specified in Section 5.03.
“Debt” of any Person
means, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property
or services (including all obligations, contingent or otherwise, of such Person in connection with letter of credit facilities, acceptance
facilities or other similar facilities and in connection with any agreement to purchase, redeem, exchange into debt securities, convert
into debt securities or otherwise acquire for value (i) any capital stock of such Person or (ii) any warrants, rights or options
to acquire such capital stock, now or hereafter outstanding) (but excluding,
for the avoidance of doubt, trade letters of credit and other trade payables), (b) all obligations of such Person evidenced
by bonds, notes, debentures or other similar instruments, (c) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such property), (d) all Finance Lease
Obligations of such Person, (e) all Debt referred to in clause (a), (b), (c) or (d) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any lien, security interest or other charge
or encumbrance upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt, (f) all Guaranteed Debt of such Person and (g) any preferred stock of such Person
that is classified as a liability on such Person’s Consolidated balance sheet.
“Default” means any
Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or
both.
“Default Interest”
has the meaning specified in Section 2.07(b).
“Default Rate” has
the meaning specified in Section 2.07(b).
“Defaulting
Lender” means, subject to Section 2.21(b), any Lender that, as determined by the Administrative Agent, (a) has failed
to perform any of its funding obligations hereunder, including in respect of its Advances, within three Business Days of the date required
to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure
is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
(b) has notified the Borrower or the Administrative Agent in writing that it
does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations
hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that
effect (unless such writing or public statement relates to such Lender’s obligation to fund an Advance hereunder and states that
such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three Business Days after request by the Administrative Agent or the Borrower, to confirm in a manner reasonably satisfactory
to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by
the Administrative Agent and the Borrower),
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any debtor relief
law or a Bail-In Action, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender
shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct
or indirect parent company thereof by a governmental authority so long as such ownership interest does not result in or provide
such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such governmental authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting
Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
“Effective Date” has
the meaning specified in Section 3.01. The Effective Date occurred on November 9, 2022.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 8.06(b)(iii) and (v) (subject to such consents,
if any, as may be required under Section 8.06(b)(iii)).
“Environmental Laws”
means all current and future Federal, state, local and foreign laws, rules or regulations, codes, ordinances, orders, decrees, judgments
or injunctions issued, promulgated, approved or entered thereunder or other requirements of Governmental Authorities or the common law,
relating to health, safety, or pollution or protection of the environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances, or wastes into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances, or wastes, or underground storage tanks and emissions therefrom.
“ERISA” means the
Employee Retirement Income Security Act of 1974, or any successor statute, as the same may be amended from time to time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414
of the Internal Revenue Code.
“Erroneous Payment”
has the meaning specified in Section 7.12(a).
“Erroneous
Payment Deficiency Assignment” has the meaning assigned to it in Section 7.12(d)(i).
“Erroneous
Payment Impacted Class” has the meaning assigned to it in Section 7.12(d)(i).
“Erroneous
Payment Return Deficiency” has the meaning assigned to it in Section 7.12(d)(i).
“Erroneous
Payment Subrogation Rights” has the meaning assigned to it in Section 7.12(e).
“Events of Default”
has the meaning specified in Section 6.01.
“Exchange Act” has
the meaning specified in the definition of “Change of Control”.
“Excluded Ocado CFC”
means, as of any date, each Ocado CFC designated by the Borrower in writing to the Administrative Agent as an “Excluded Ocado CFC”
(which notification may be made through a compliance certificate delivered
to the Administrative Agent pursuant to Section 5.01(h)(iii)); provided that, the Borrower may designate no more than twenty
Ocado CFCs as “Excluded Ocado CFCs” during the term of this Agreement.
“Excluded Ocado CFC Amount”
means, as of any date of determination, with respect to any Excluded Ocado CFC, an amount equal to the lesser of (x) the aggregate
principal amount of Finance Lease Obligations of the Borrower and its Subsidiaries with respect to such Excluded Ocado CFC which have
been (or have been required to be) recorded as a Finance Lease Obligation on the consolidated balance sheet of the Borrower and its Subsidiaries
for no more than five years as of such date of determination (which Finance
Lease Obligations shall be amortized using a “straight-line” method over a 10-year average useful life) and (y) $130,000,000.
“Excluded Taxes” means
any of the following Taxes imposed on or with respect to any 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 an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender
acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.22)
or (ii) such Lender changes its applicable Lending Office, except in each case to the extent that, pursuant to Section 2.14(a) or
(c), amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto
or to such Lender immediately before it changed its applicable Lending Office, (c) Taxes attributable to such Recipient’s failure
to comply with Section 2.14(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that
is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or
regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental
Authorities entered into in connection with the implementation of the foregoing.
“Federal Bankruptcy Code”
means Title 11 of the United States Code.
“Federal Funds Rate”
means a fluctuating rate per annum equal for each day to the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes
of this Agreement.
“Finance Lease Obligation”
means, with respect to any lessee, the obligations under any lease of property that, in accordance with GAAP, should be capitalized and
reflected on such lessee’s balance sheet as “finance leases”. For the avoidance of doubt, “Finance Lease Obligations”
shall not include any obligations or liabilities that are reflected on any lessee’s balance sheet as a liability in respect of any
“operating lease”.
“Financial Officer”
means, with respect to any corporation, the chief financial officer, principal accounting officer, treasurer or controller of such corporation.
“Fiscal Quarter” means
(a) with respect to the first Fiscal Quarter of any Fiscal Year, the first 16 calendar weeks of such Fiscal Year, (b) with
respect to the second Fiscal Quarter of such Fiscal Year, the next successive period of 12 calendar weeks in such Fiscal Year, (c) with
respect to the third Fiscal Quarter of any Fiscal Year, the next successive period of 12 calendar weeks in such Fiscal Year and (d) with
respect to the last Fiscal Quarter of any Fiscal Year, the period of time after the first three Fiscal Quarters of such Fiscal Year through
the last day of such Fiscal Year.
“Fiscal Year” means
a year of 364 or 371 days, as the case may be, ending on the Saturday closest to the 31st day of January in any calendar year,
and such Fiscal Year, when referred to from time to time herein by reference to a calendar year shall be the Fiscal Year that includes
February 28th of such calendar year.
“Fitch” means Fitch, Inc.
“Foreign Lender” means
(a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender
that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Fund” means any Person
(other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its activities.
“GAAP” has the meaning
specified in Section 1.03.
“Governmental Authority”
means any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
“Granting Lender”
has the meaning specified in Section 8.06(g).
“Guaranteed Debt”
of any Person means all Debt referred to in clause (a), (b), (c), (d) or (e) of the definition of the term “Debt”
in this Section guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (a) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such
Debt, (b) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (c) to supply funds to, or in
any other manner invest in, the debtor (including any agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (d) otherwise to assure a creditor against loss, but excluding leases at a rental at
least as favorable to the Borrower as could be obtained in an arm’s-length transaction with a party that is not an Affiliate.
“Hazardous Materials”
means any toxic substance, hazardous waste, hazardous constituents, hazardous materials, asbestos or asbestos containing material, polychlorinated
biphenyls, per- and polyfluoroalkyl substances, petroleum, including
crude oil and any fractions thereof, or other wastes, chemicals, substances or materials regulated by any Environmental Laws.
“Impacted Advances”
has the meaning specified in Section 2.08(c).
“Indemnified Costs”
has the meaning specified in Section 7.05.
“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
the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the
meaning specified in Section 8.03(b).
“Initial GAAP” has
the meaning specified in Section 1.03.
“Indenture” means
the indenture dated as of June 25, 1999 between the Borrower and U.S. Bank National Association, as trustee (as it may be modified
or supplemented from time to time).
“Interest Period”
means, for each Term SOFR Advance comprising part of the same Borrowing, the period commencing on the date of such Term SOFR Advance or
the date of the Conversion of any Base Rate Advance into such Term SOFR Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be one, three or six months, as the Borrower may, upon notice received by the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the
Borrower may not select any Interest Period for Advances under any Tranche that ends after the Maturity Date then in effect for such Tranche;
(ii) Interest
Periods commencing on the same date for Term SOFR Advances comprising part of the same Borrowing shall be of the same duration;
(iii) whenever
the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business
Day; and
(iv) whenever
the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Lender-Related Person”
has the meaning specified in Section 8.03(d).
“Lenders” means each
of the banks, financial institutions and other institutional lenders listed on Schedule I hereto and each Person that shall become a party
hereto pursuant to Section 8.06.
“Lending Office” means,
with respect to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire,
or such other office or offices as a Lender may from time to time specify in writing to the Borrower and the Administrative Agent, which
office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context
otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Leverage Ratio” means
the ratio (determined as of the last day of each Fiscal Quarter for the Rolling Period ending on such day) of (i) Net Debt on such
day to (ii) Consolidated EBITDA for such Rolling Period. If, during the Rolling Period, the Borrower or any Subsidiary has made
an acquisition or a disposition, Consolidated EBITDA for such Rolling Period will be calculated after giving pro forma effect as if the
acquisition or disposition occurred on the first date of the Rolling Period.
“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge, assignment for security (whether collateral or otherwise), hypothecation,
encumbrance, lease, sublease, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, finance lease or title retention agreement relating to such asset and (c) in the case of securities,
any purchase option, call or similar right of a third party with respect to such securities.
“LIFO” means the pretax
charge against income determined by using the last-in-first-out method of valuing inventory.
“Loan Documents” means
this Agreement and the Notes, if any, and any guarantees executed by Subsidiaries of the Borrower pursuant to the provisions of Section 5.01(i) of
this Agreement.
“Material Adverse Change”
means any material adverse change in the business, operations, properties or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole.
“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect on, the business, operations, properties or condition (financial
or otherwise) of the Borrower and its Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Borrower to
perform any of its obligations under any Loan Document to which it is or will be a party or (c) material impairment of the rights
of or benefits available to the Administrative Agent or the Lenders under any Loan Document.
“Material Subsidiary”
means any Subsidiary of the Borrower that would be a “significant subsidiary” of the Borrower within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
“Maturity Date” means
the Tranche A Maturity Date or the Tranche B Maturity Date, as the context may require.
“Moody’s” means
Moody’s Investors Service, IncRatings.
“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate (other than
one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal Revenue Code) is
making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation
to make contributions.
“Net Cash Proceeds”
means, with respect to a sale or other disposition of any assets or property of the Borrower or any of its Subsidiaries, the excess, if
any, of (i) the amount of cash actually received in connection therewith (including any cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) payments
made to with respect to any Debt or other obligations (x) that are secured by a Lien on such asset and that is required to be repaid
in connection with the sale thereof or (y) that must by its terms, or in order to obtain a necessary consent to such sale or disposition,
or by applicable laws, be repaid out of the proceeds from such sale or other disposition, (B) all attorneys’ fees, accountants’
fees, brokerage, consultant and other customary fees and commissions, title and recording tax expenses and other reasonable expenses incurred
by the Borrower or any of its Subsidiaries in connection therewith, (C) taxes paid or reasonably estimated to be payable or required
to be accrued in connection with such sale or other disposition, (D) the amount of all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint ventures as a result of such sale or other disposition, or to any other
Person (other than to the Borrower or any of its Subsidiaries) owning a beneficial interest in the assets disposed of in such asset sale
or disposition, (E) the amount of reserves established by the Borrower or any of its Subsidiaries in good faith for adjustments in
respect of the sale price of such asset or assets or to fund indemnities or liabilities, contingent or otherwise, in each case, in accordance
with applicable generally accepted accounting principles, provided that if the amount of such reserves exceeds the amounts charged against
such reserve, then such excess, upon the determination thereof, shall then constitute Net Cash Proceeds, (F) the amount of any funded
escrow established pursuant to the documents evidencing any such asset sale or disposition to secure any indemnification obligations or
adjustments to the purchase price associated with any such sale or disposition, provided, that to the extent that any amounts are released
from such escrow to the Borrower or a Subsidiary, such amounts net of any related expenses shall then constitute Net Cash Proceeds, (G) the
amount of cash proceeds of such sale or disposition to the extent such proceeds are required to be used in another manner pursuant to
contractual or other obligations entered into in connection with financing the acquisition, construction or development of such property
and (H) the amount of cash proceeds arising from a sale or disposition by a Subsidiary organized outside of the United States to
the extent that (x) the repatriation thereof would be unlawful, as reasonably determined by the Borrower or (y) material adverse
tax consequences would result from the repatriation thereof, as reasonably determined by the Borrower
“Net Debt” means,
on a Consolidated basis for the Borrower and its Subsidiaries as of any date, (a) Debt minus (b) the sum as of such
date of (i) the aggregate outstanding amount of Debt represented by investments made by the Borrower in Debt of another Person in
connection with a real estate transaction, so long as the Borrower or one of its Subsidiaries is or becomes an anchor tenant of the real
estate development with respect thereto and no more than two anchor tenants exist with respect to such real estate development or the
Borrower or one of its Subsidiaries has a contractual obligation to make lease or other payments to such Person as a result of the real
estate transaction in which such Debt was issued, (ii) the aggregate amount of Permitted Investments and (iii) the lesser of
(x) the aggregate Excluded Ocado CFC Amounts of all Excluded Ocado CFCs as of such date and (y) $2,600,000,000.
“Non-Approving Lender”
means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders
in accordance with the terms of Section 8.01 and (b) has been approved by the Required Lenders.
“Note” has the meaning
specified in Section 2.15.
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“Ocado CFC” means
any customer fulfilment center constructed by the Borrower and/or any of its Subsidiaries in partnership with Ocado Group plc or Ocado
Solutions Limited (or their applicable affiliates).
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced
any Loan Document, or sold or assigned an interest in any Advance or 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 2.22).
“Participant” has
the meaning specified in Section 8.06(d).
“Participant Register”
has the meaning specified in Section 8.06(d).
“Patriot Act” has
the meaning specified in Section 8.11.
“Payment Recipient”
has the meaning specified in Section 7.12(a).
“PBGC” means the Pension
Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Permitted Investments”
means (a) cash, (b) readily marketable securities issued or guaranteed by the government of the United States of America or
any agency thereof having a maturity at the time of issuance not exceeding one year, (c) commercial paper rated at least A-1 by S&P,
P-1 by Moody’s or F-1 by Fitch, in each case having a maturity at the time of issuance not exceeding 270 days, (d) commercial
paper rated at least A-2 by S&P, P-2 by Moody’s or F-2 by Fitch, in each case having a maturity at the time of issuance not
exceeding 30 days and not exceeding for any issuer thereof $50,000,000, and (e) certificates of deposit of or time deposits with
any commercial bank, the long-term debt of which has been assigned a rating of at least BBB by S&P or A3 by Moody’s and which
is a Lender and is organized and existing or doing business under the laws of the United States of America or any state thereof or the
District of Columbia.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture,
limited liability company or other entity, or a government (domestic or foreign) or any political subdivision or agency thereof.
“Plan” means any pension
plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan),
subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code or
Section 302 of ERISA that is maintained for current or former employees, or any beneficiary thereof, of the Borrower
or any ERISA Affiliate.
“Platform” has the
meaning specified in Section 5.01(h).
“Proprietary Information”
has the meaning specified in Section 8.07.
“Public Debt Rating”
means, as of any date, the rating that has been most recently announced by either S&P or Moody’s, as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a) if only one
of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Commitment Fee Percentage shall
be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin and the Commitment Fee Percentage will be set in accordance with Level 5 under the definition of “Applicable
Margin” or “Commitment Fee Percentage”, as the case may be; (c) if the ratings established by S&P and Moody’s
shall fall within different levels, the Applicable Margin and the Commitment Fee Percentage shall be based upon the higher rating unless
such ratings differ by two or more levels, in which case the applicable level will be deemed to be one level below the higher of such
levels; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall
change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as
the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.
“Public Lender” has
the meaning specified in Section 5.01(h).
“Ratable Share” of
any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator of which is
the amount of such Lender’s aggregate Commitment at such time (or, if the Commitments shall have been terminated in full, such Lender’s
aggregate Advances at such time) and the denominator of which is the aggregate amount of all Commitments at such time (or, if the Commitments
shall have been terminated in full, the aggregate amount of all Advances at such time).
“Recipient” means
the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder.
“Register” has the
meaning specified in Section 8.06(c).
“Related Parties”
means, with respect to any Person, (i) such Person’s controlled Affiliates and (ii) each of such Person’s and of
such Person’s controlled Affiliates’ respective directors, officers, employees, controlling members, controlled affiliates,
successors and assigns and/or agents or representatives, in each case, acting on such Person’s instructions.
“Removal Effective Date”
has the meaning as defined in Section 7.07(b).
“Reportable Event”
means any reportable event as defined in Section 4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Internal Revenue Code).
“Required Lenders”
means, at any time, Lenders holding more than 50% of the then aggregate unpaid principal amount of all outstanding Advances or, if no
such principal amount is then outstanding, Lenders having more than 50% of the Commitments; provided that the Commitment of, and
the portion of the Advances held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
“Rescindable Amount”
has the meaning as defined in Section 2.12(e).
“Resignation Effective Date”
has the meaning as defined in Section 7.07(a).
“Responsible Officer”
of any corporation means any executive officer or Financial Officer of such corporation and any other officer or similar official thereof
responsible for the administration of the obligations of such corporation in respect of this Agreement.
“Rolling Period” means,
in respect of any Fiscal Quarter, such Fiscal Quarter and the three preceding Fiscal Quarters.
“S&P” means S&P
Global Ratings, a division of S&P Global Inc.
“SPC” has the meaning
specified in Section 8.06(g).
“Sanctioned Country”
means, at any time, a country, region or territory which is, or whose government is, itself
the subject or target of any comprehensive territorial Sanctions (at the time of this Agreement, the
so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran,
North Korea and Syria).
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European
Union, Canada, any European Union member state, or
His Majesty’s Treasury of the United Kingdom, or any Person in which one or more such
listed Persons owns, directly or indirectly, a 50 percent or greater interest, or (b) any
Person located, organized or resident in a Sanctioned Country.
“Sanctions” means
economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) 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, Canada, any European Union member state, or His Majesty’s Treasury of the United Kingdom.
“SEC” means the United
States Securities and Exchange Commission.
“SOFR” means the Secured
Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment”
means 0.10% (10.0 basis points).
“Solvent” means, as
of the Closing Date, after giving effect to the Transactions, (i) the fair value and the present fair saleable value of any and all
property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the probable liability on existing debts of the
Borrower and its Subsidiaries, on a consolidated basis, as they become absolute and matured (it being understood that the amount of contingent
liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing as of the Closing
Date, represents the amount that can reasonably be expected to become an actual or matured liability), (ii) the Borrower and its
Subsidiaries, on a consolidated basis are able to pay their debts (including, without limitation, contingent and subordinated liabilities)
as they become absolute and mature (it being understood that the amount of contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances existing as of the Closing Date, represents the amount that can reasonably
be expected to become an actual or matured liability) and (iii) the Borrower and its Subsidiaries are not engaged in businesses or
transactions, nor about to engage in businesses or transactions, for which any property remaining would, on a consolidated basis, constitute
unreasonably small capital after giving due consideration to the prevailing practice in the industry in which they are engaged.
“Specified Representations”
means the representations and warranties of the Borrower made on the Closing Date under Section 4.01(a); Section 4.01(b)(i);
Section 4.01(b)(ii)(y) (solely to the extent such representation and warranty is made with respect to debt instruments of the
Borrower in a principal or committed amount in excess of $250,000,000 after giving pro forma effect to the Transactions, in each case,
as they relate to the entering into and performance of the Loan Documents); Section 4.01(d); Section 4.01(g); Section 4.01(h);
the second and third sentences of Section 4.01(i) (solely to the extent such representation and warranty is made with respect
to the use of proceeds of the Advances hereunder); and Section 4.01(l).
“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than
50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.
“Successor Rate” has
the meaning specified in Section 2.08(e).
“Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means:
| (a) | for any Interest Period with respect to a Term SOFR Advance, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government
Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that
if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the
first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment; and |
| (b) | for any interest calculation with respect to a Base Rate Advance on any date, the rate per annum equal to the Term SOFR Screen Rate
with a term of one month commencing that day; |
provided
that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise
be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Advance”
means an Advance that bears interest as provided in Section 2.07(a)(ii).
“Term SOFR Screen Rate”
means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent)
and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may
be designated by the Administrative Agent from time to time).
“Tranche” means the
Tranche A Commitments and Tranche A Advances, or the Tranche B Commitments and the Tranche B Advances, as the context may require.
“Tranche A Advance”
has the meaning specified in Section 2.01(a).
“Tranche A Commitment”
means, as to any Lender, (a) the amount set forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Tranche
A Commitment” or (b) if such Lender has entered into an Assignment and Acceptance, the amount set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section 8.06(c) with respect to Tranche A Commitments, as such
amount may be reduced pursuant to Section 2.05. As of the Effective Date, the aggregate Tranche A Commitments of all the Tranche
A Lenders is $3,000,000,000.
“Tranche A Lender”
means a Lender with a Tranche A Commitment or holding a Tranche A Advance.
“Tranche A Maturity Date”
means the date that is three years after the Closing Date.
“Tranche B Advance”
has the meaning specified in Section 2.01(b).
“Tranche B Commitment”
means, as to any Lender, (a) the amount set forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Tranche
B Commitment” or (b) if such Lender has entered into an Assignment and Acceptance, the amount set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section 8.06(c) with respect to Tranche B Commitments, as such
amount may be reduced pursuant to Section 2.05. As of the Effective Date, the aggregate Tranche B Commitments of all the Tranche
B Lenders is $1,750,000,000.
“Tranche B Lender”
means a Lender with a Tranche B Commitment or holding a Tranche B Advance.
“Tranche B Maturity Date”
means the date that is 18 months after the Closing Date.
“Transactions” means,
collectively, any and all of the following (whether or not consummated): (i) the Acorn Acquisition, (ii) the entry into the
Acorn Acquisition Agreement and the consummation of the transactions contemplated thereunder, (iii) the entry into this Agreement
and the borrowing of Loans hereunder, (iv) the incurrence by the Borrower and/or its Subsidiaries of up to $12,650,000,000 in aggregate
principal amount of senior unsecured notes, (iv) the entry into the definitive documentation for the Acorn Bridge Facility and the
borrowing of any loans thereunder and (v) the payment of fees and expenses incurred with the foregoing.
“Type” refers to the
distinction between Base Rate Advances and Term SOFR Advances.
“U.S. Government Securities
Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets
Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal
holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Person” means
any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate”
has the meaning specified in Section 2.14(f)(ii)(B)(III).
“WF Bank” means Wells
Fargo Bank, National Association.
“WF Securities” means
Wells Fargo Securities LLC.
“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.
“Withholding Agent”
means the Borrower and the Administrative Agent.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally accepted accounting principles as in effect in the United
States from time to time (“GAAP”), provided that (a) if there is any change in GAAP from such principles
applied in the preparation of the audited financial statements referred to in Section 4.01(e) (“Initial GAAP”),
that is material in respect of the calculation of compliance with the covenants set forth in Section 5.03, the Borrower shall give
prompt notice of such change to the Administrative Agent and the Lenders, (b) if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment of any provision hereof to eliminate the effect of any change in GAAP (or the application thereof)
from Initial GAAP (or if the Administrative Agent or the Required Lenders request an amendment of any provision hereof for such purpose),
regardless of whether such notice is given before or after such change in GAAP (or the application thereof), then such provision shall
be applied on the basis of generally accepted accounting principles as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such provision is amended in accordance herewith.
SECTION 1.04. Divisions. Any reference herein to a merger,
transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to
apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the
unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment,
sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability
company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint
venture or any other like term shall also constitute such a Person or entity).
SECTION 1.05.
Interest Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have
any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or
with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment)
that is an alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component
of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates
or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative,
successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related
spread or other adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information
sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or
replacement rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing), in each case
pursuant to the terms of this Agreement, and shall have no liability to the 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 other action or omission related to or affecting
the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
(a) Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single Advance in U.S. dollars to the Borrower
on the Closing Date in an amount not to exceed such Lender’s Tranche A Commitment (such Advances, the “Tranche A Advances”).
Each Borrowing shall be in an aggregate minimum amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably according to their respective Tranche A Commitments.
Once repaid or prepaid, Tranche A Advances may not be reborrowed.
(b) Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single Advance in U.S. dollars to the Borrower
on the Closing Date in an amount not to exceed such Lender’s Tranche B Commitment (such Advances, the “Tranche B Advances”).
Each Borrowing shall be in an aggregate minimum amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably according to their respective Tranche B Commitments.
Once repaid or prepaid, Tranche B Advances may not be reborrowed.
SECTION 2.02. Making the Advances. (a) Each Borrowing
shall be made on notice, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Term SOFR Advances, or the Business Day of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier; provided that, notwithstanding the foregoing, notice of any Borrowing to be made on the Closing
Date may be delivered by the Borrower to the Administrative Agent at any time prior to 11:00 A.M. (New York City time) on the Business
Day prior to the date of the proposed Borrowing (or at such later time as the Administrative Agent may consent to in its sole discretion).
Each such notice of a Borrowing (a “Notice of Borrowing”) shall be in writing, or telecopier in substantially the
form of Exhibit A hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type and Tranche of Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Term
SOFR Advances, initial Interest Period for each such Advance. Each Lender shall, before 12:00 noon (New York City time) on
the date of such Borrowing, make available for the account of its applicable Lending Office to the Administrative Agent at the Administrative
Agent’s Office, in same day funds, such Lender’s ratable portion of such Borrowing. After the Administrative Agent’s
receipt of such funds and upon the fulfillment of the conditions set forth in Section 3.02, the Administrative Agent will make such
funds available to the Borrower at its account notified to the Administrative Agent at the Administrative Agent’s address referred
to in Section 8.02.
(b) Anything
in subsection (a) above or Section 2.09 to the contrary notwithstanding, there shall not be more than ten Interest Periods
in effect.
(c) Except
as otherwise provided in this Agreement, each Notice of Borrowing shall be irrevocable and binding on the Borrower; provided, however,
that any Notice of Borrowing may be conditioned on the occurrence of any event, in which case such notice may be revoked by the Borrower
(by notice delivered to the Administrative Agent on or prior to the date of the proposed Borrowing) if such condition is not satisfied
(it being understood that any revocation of a Notice of Borrowing shall be subject to the provisions in the succeeding sentence). In
respect of any Borrowing comprised of or including Term SOFR Advances specified in such Notice of Borrowing, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender solely as a result of any failure by the Borrower to borrow on
the date specified in the Notice of Borrowing for such Borrowing, including any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Term SOFR
Advance to be made by such Lender as part of such Borrowing when such Term SOFR Advance, solely as a result of such failure, is not made
on such date. Without prejudice to the survival of any other provision of this Agreement, the provisions of this paragraph shall survive
any termination of this Agreement.
(d) Unless
the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing (or in the case of a Base Rate Borrowing,
prior to 12:00 noon (New York City time) on the date of such Borrowing) that such Lender will not make available to the Administrative
Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent such Lender shall not have so made available to the Administrative Agent on the date of any Borrowing such Lender’s
ratable portion of such Borrowing, such Lender agrees, and the Borrower agrees, to pay or repay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from the date such amount is made available to the Borrower until
the date such amount is paid or repaid to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing
and (ii) in the case of the Borrower, the rate applicable to such Borrowing (provided that such payment at the Federal Funds
Rate with respect to any Term SOFR Advance shall not affect the status of such Advance as a Term SOFR Advance). If such Lender shall
pay to the Administrative Agent such amount, the amount so paid shall constitute such Lender’s Advance as part of such Borrowing
for purposes of this Agreement from and including the date of such Borrowing.
(e) The
failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender
to make the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. [Reserved].
SECTION 2.04. Fees. (a) Commitment
Fees. The Borrower agrees to pay to the Administrative Agent, on the Commitment Termination Date, for distribution to each Lender
a commitment fee (the “Commitment Fee”) with respect to such Lender’s undrawn Commitment, calculated at a rate
per annum equal to the Commitment Fee Percentage from time to time in effect on the amount of such Lender’s actual daily undrawn
Commitment, which Commitment Fee will accrue from (and including) February 10, 2023 to (but excluding) the Commitment Termination
Date.
(b) Administrative
Agent’s Fees. The Borrower agrees to pay to the Administrative Agent, for its own account, such fees as may from time to time
be agreed between the Borrower and the Administrative Agent (including the applicable Acorn Fee Letters).
SECTION 2.05. Termination or Reduction of the Commitments
. (a) The Commitment of each Lender shall be automatically terminated on the Commitment Termination Date.
(b) The
Borrower shall have the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in whole or
permanently reduce ratably in part (in a minimum principal amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof),
the Commitments. Voluntary Commitment reductions shall be allocated between Tranche A Commitments and Tranche B Commitments as determined
by the Borrower.
(c) Solely
to the extent the aggregate commitments and loans under the Acorn Bridge Facility have been reduced to $0, and without duplication of
any reduction to the Tranche B Commitments pursuant to clause (I)(y) of the proviso to Section 3.02(b), the aggregate Tranche
B Commitments shall be permanently reduced, without penalty or premium, in each case, dollar-for-dollar, by 100% of the Net Cash Proceeds
of the Acorn Specified Dispositions received by the Borrower and its Subsidiaries on or prior to the Closing Date. It is understood and
agreed that no Net Cash Proceeds received by Acorn or any of its Subsidiaries for any reason whatsoever prior to the Closing Date shall
result in any mandatory Commitment reduction pursuant to this clause (c). For the avoidance of doubt, no mandatory reduction of Tranche
A Commitments shall be required pursuant to this clause (c). Any required reduction to the Tranche B Commitments pursuant to this clause
(c) shall be automatically effective on the same day as such Net Cash Proceeds are received.
(d) The
Borrower shall notify the Administrative Agent as soon as practicable and, in any event, within three Business Days of any event under
clauses (a) or (c) above, unless the Commitment reduction under clause (a) above is a result of the occurrence of the
Closing Date.
SECTION 2.06. Repayment of Advances. The Borrower shall
repay to the Administrative Agent for the account of each Tranche A Lender on the Tranche A Maturity Date the aggregate principal amount
of the Tranche A Advances owing to such Tranche A Lender on such date. The Borrower shall repay to the Administrative Agent for the account
of each Tranche B Lender on the Tranche B Maturity Date the aggregate principal amount of the Tranche B Advances owing to such Tranche
B Lender on such date.
SECTION 2.07. Interest on Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following rates per annum:
(i) Base
Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time plus (y) the Applicable Margin, payable quarterly in arrears on the third day of each
January, April, July and October and on the date such Base Rate Advance shall be Converted into a Term SOFR Advance or paid
in full.
(ii) Term
SOFR Advances. During such periods as such Advance is a Term SOFR Advance, a rate per annum equal at all times during each Interest
Period for such Advance to the sum of (x) Term SOFR for such Interest Period plus (y) the Applicable Margin, payable
on the last day of each Interest Period and, if such Interest Period has a duration of six months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period.
(b) Default
Interest. Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a) or (e), the Administrative
Agent shall, and upon the occurrence and during the continuance of any other Event of Default, the Administrative Agent may, and upon
the request of the Required Lenders shall, require, the Borrower to pay interest (“Default Interest”) on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) of
this Section 2.07, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i) or (a)(ii) of this Section 2.07 and (ii) the amount of any interest, fee or other amount
payable hereunder or any other Loan Document that is not paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) of this Section 2.07
(the “Default Rate”), provided, however, that following acceleration of the Advances pursuant to Section 6.01,
Default Interest shall accrue and be payable whether or not previously required by the Administrative Agent.
SECTION 2.08. Interest Rate Determination. (a) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.07(a).
(b) If
the Borrower shall fail to select the duration of any Interest Period for any Term SOFR Advances in accordance with the provisions contained
in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify the Borrower
and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(c) If
in connection with any request for a Term SOFR Advance or a conversion to or continuation thereof, (i) the Administrative Agent determines
that (x) adequate and reasonable means do not exist for determining Term SOFR for any requested Interest Period with respect to a
proposed Term SOFR Advance or in connection with an existing or proposed Base Rate Advance and (y) the circumstances described in
Section 2.08(e) do not apply (in each case with respect to this clause (i), “Impacted Advances”), or (ii) the
Administrative Agent or the Required Lenders determine that for any reason Term SOFR for any requested Interest Period with respect to
a proposed Term SOFR Advance does not adequately and fairly reflect the cost to such Lenders of funding such Term SOFR Advance, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Term
SOFR Advances shall be suspended, (to the extent of the affected Term SOFR Advances or Interest Periods), and (y) in the event of
a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term
SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination
by the Required Lenders described in clause (ii) of the first sentence of this Section 2.08(c), until the Administrative Agent
upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, Conversion to or continuation of Term SOFR Advances (to the extent of the affected Term SOFR Advances or Interest
Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Advances in the amount
specified therein.
(d) Notwithstanding
the foregoing, if the Administrative Agent has made the determination described in clause (i) of the first sentence of Section 2.08(c),
the Administrative Agent, in consultation with the Borrower and Required Lenders, may establish an alternative interest rate for the
Impacted Advances, in which case, such alternative rate of interest shall apply with respect to the Impacted Advances until (i) the
Administrative Agent revokes the notice delivered with respect to the Impacted Advances under clause (i) of the first sentence
of Section 2.08(c), (ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower
that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Advances,
or (iii) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful,
for such Lender or its applicable Lending Office to make, maintain or fund Advances whose interest is determined by reference to such
alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed
material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower
written notice thereof.
(e) Replacement
of Term SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if
the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders
notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders
(as applicable) have determined, that:
(i) adequate
and reasonable means do not exist for ascertaining Term SOFR, including, without limitation, because the Term SOFR Screen Rate is not
available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative
Agent or such administrator with respect to its publication of the Term SOFR Screen Rate, in each case acting in such capacity, has made
a public statement identifying a specific date after which all tenors of the Term SOFR Screen Rate shall or will no longer be made available,
or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease,
provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that
will continue to provide such tenors of the Term SOFR Screen Rate after such specific date;
or if the events or circumstances of
the type described in Section 2.08(e)(i) or (ii) have occurred with respect to the Successor Rate then in
effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term
SOFR or any then current Successor Rate in accordance with this Section 2.08(e) at the end of any Interest Period, relevant
interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration
to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United
States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due
consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented
in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information
service as selected by the Administrative Agent in consultation with the Borrower from time to time in its reasonable discretion and may
be periodically updated. Any such proposed rate and adjustments shall constitute a “Successor Rate”. Any such amendment
shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment
to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative
Agent written notice that such Required Lenders object to such amendment.
The Administrative Agent will promptly
(in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in
a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for
the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent
in consultation with the Borrower.
Notwithstanding anything else herein,
if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for
the purposes of this Agreement and the other Loan Documents.
In connection with the implementation
of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything
to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected,
the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably
promptly after such amendment becomes effective.
SECTION 2.09. Conversion of Advances. (a) The
Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 a.m. (New York City
time) on the third Business Day prior to the date of the proposed Conversion, and subject to the provisions of Sections 2.02(b),
2.08, 2.09(d) and 2.11(d), Convert all or any Advances of one Type into Advances of the other Type; provided, however,
that (i) except as provided in Section 2.11(d), any Conversion of any Term SOFR Advances into Base Rate Advances shall be made
on, and only on, the last day of an Interest Period for such Term SOFR Advances, (ii) the Borrower may not Convert any Base Rate
Advances into Term SOFR Advances unless such Base Rate Advances are in an aggregate amount not less than $10,000,000 and (iii) no
conversion of any Advances shall result in more separate Interests periods than permitted under Section 2.02(b)(iv). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Type and aggregate
amount of Advances to be Converted and (iii) if such Conversion is into Term SOFR Advances, the duration of the Interest Period for
such Advances.
(b) Each
notice of Conversion shall be irrevocable and binding on the Borrower and, in respect of any notice of Conversion to Term SOFR Advances,
the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender solely as a result of any failure
to Convert on the date specified in such notice, including any loss (including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Term SOFR Advance to be made
by such Lender as part of such Conversion when such Term SOFR Advance, solely as a result of such failure, is not made on such date.
Without prejudice to the survival of any other provision of this Agreement, the provisions of this paragraph shall survive any termination
of this Agreement.
(c) On
the date on which the aggregate unpaid principal amount of Term SOFR Advances having the same Interest Period shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances.
(d) Upon
the occurrence of any Default and so long as such Default shall continue, (i) each Term SOFR Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders
to make, or to Convert any Advances into, Term SOFR Advances shall be suspended.
SECTION 2.10. Prepayments. (a) Optional Prepayments.
The Borrower may, upon at least two Business Days’ notice in the case of Term SOFR Advances, and upon at least one Business Day’s
notice in the case of Base Rate Advances, to the Administrative Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (i) each partial prepayment pursuant to this Section 2.10 shall be in an aggregate
principal amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) in the event of any such prepayment
of a Term SOFR Advance, such prepayment shall either be made on the last day of an Interest Period for such Term SOFR Advance or shall
be made together with payment of all amounts required pursuant to Section 8.03(c). Voluntary prepayments shall be allocated between
Tranche A Advances and Tranche B Advances as determined by the Borrower.
(b) Mandatory
Prepayments. Solely to the extent the aggregate commitments and loans under the Acorn Bridge Facility have been reduced to $0, the
Borrower shall prepay an aggregate amount of Tranche B Advances equal to 100% of the Net Cash Proceeds of the Acorn Specified Dispositions
received by the Borrower or its Subsidiaries after the Closing Date. The Borrower shall notify the Administrative Agent as soon as practicable
and, in any event, within three Business Days of its receipt of any Net Cash Proceeds from Acorn Specified Dispositions after the Closing
Date. Any mandatory prepayment of Tranche B Advances resulting from the receipt of Net Cash Proceeds from Acorn Specified Dispositions
after the Closing Date required by the this clause (b) shall be made within five Business Days of receipt of such Net Cash Proceeds.
For the avoidance of doubt, no mandatory prepayments of Tranche A Advances shall be required pursuant to this clause (b).
SECTION 2.11. Increased Costs; Illegality. (a) If,
due to either (i) the introduction of or any change (including any change by way of imposition or increase of reserve requirements)
in or change in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Term SOFR Advances, other than (A) Indemnified Taxes, (B) Taxes described
in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes, then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If
any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to
be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital or liquidity is increased
by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type, then, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account
of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender in the light of
such circumstances, to the extent that such Lender reasonably determines such increase in capital or liquidity to be allocable to the
existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts, submitted to the Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(c) [Reserved].
(d) Notwithstanding
any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall
make it unlawful, as reasonably determined by any Lender, or any central bank or other Governmental Authority shall assert that it is
unlawful, for such Lender or its Lending Office to perform its obligations hereunder to make Term SOFR Advances or to continue to fund
or maintain Term SOFR Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative
Agent, (i) the obligation of such Lender to make Term SOFR Advances and to Convert Advances into Term SOFR Advances shall terminate
and (ii) the Borrower shall forthwith Convert all Term SOFR Advances of such Lender then outstanding into Base Rate Advances in
accordance with Section 2.09, except that such Conversion may occur, notwithstanding Section 2.09, other than on the last day
of the respective Interest Periods for such Term SOFR Advances, if the Borrower has paid all amounts payable under Section 8.03(c).
(e) For
the avoidance of doubt and notwithstanding anything herein to the contrary, for the purposes of this Section 2.11, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives
thereunder or issued in connection therewith (whether or not having the force of law) and (y) all requests, rules, regulations,
guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority ) or the applicable United States or foreign regulatory authorities (whether or not having the
force of law), in case for this clause (y) pursuant to Basel III, shall in each case be deemed to be a change in law regardless
of the date enacted, adopted, issued, promulgated or implemented.
(f) Without
prejudice to the survival of any other provision of this Agreement, the provisions of this Section 2.11 shall survive any termination
of this Agreement.
SECTION 2.12. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes, if any, without condition or deduction for counterclaim, defense, recoupment
or setoff, not later than 12:00 noon (New York City time) on the day when due in U.S. dollars to the Administrative Agent at
the Administrative Agent’s Office in same day funds. The Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or Commitment Fees ratably (other than amounts payable pursuant to Section 2.04(b),
2.11, 2.14 or 8.03(c)) to the Lenders for the account of their respective applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account of its applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.06(c), from and after the effective date specified in such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under the Notes, if any, in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between themselves.
(b) The
Borrower hereby authorizes each Lender, if and to the extent payment is not made when due hereunder, to charge from time to time against
any or all of the Borrower’s accounts with such Lender any amount so due to such Lender prior to any sharing under Section 2.13.
Nothing contained in this subsection (b) shall impair the obligations of any Lender under Section 2.13, the rights of the Administrative
Agent or any Lender under Section 8.04 or any other rights and remedies (including other rights of set-off) that the Administrative
Agent or such Lender may have.
(c) All
computations of interest based on the Base Rate (including when determined by reference to Term SOFR or the Federal Funds Rate) shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based
on Term SOFR and fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the period for which such interest or commitment fees are payable
(which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue
on each Advance for the day on which the Advance is made, and shall not accrue on an Advance, or any portion thereof, for the day on
which the Advance or such portion is paid, provided that any Advance that is repaid on the same day on which it is made shall
bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever
any payment hereunder or under the Notes, if any, shall be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of
interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal
of Term SOFR Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless
the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed
to each Lender on such due date an amount equal to the amount then due such Lender.
SECTION 2.13. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the
Advances made by it of any Tranche excess of its ratable share of payments on account of the Advances of such Tranche obtained by all
the Lenders of such Tranche, such Lender shall forthwith purchase from the other Lenders of such Tranche such participations in the Advances
of such Tranche made by the other Lenders of such Tranche as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall be rescinded and each such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount equal to each such other Lender’s ratable share
(according to the proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered and (b) the provisions of this Section shall not be construed to apply to any payment made by or on behalf
of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from
the existence of a Defaulting Lender). The Borrower agrees that any Lender so purchasing a participation from another Lender may, pursuant
to this Section 2.13, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.
SECTION 2.14.
Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower
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 Borrower 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 2.14)
the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment
of Other Taxes by Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law,
or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification
by Borrower. The Borrower shall indemnify each Recipient, within 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 2.14)
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. Notwithstanding the foregoing, in the case of any Taxes not required by law to be deducted by the Borrower
from or in respect of any sum payable hereunder to any Recipient, payment under this indemnification must be made by the Borrower only
if such written demand has been made within 60 days from the date on which such Recipient makes payment of the Taxes to the relevant
Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and 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, accompanied
by a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts shall be conclusive absent
manifest error.
(d) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative
Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 8.06(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 set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative
Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d).
(e) Evidence
of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided in this Section 2.14,
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 any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(f) Status
of Lenders; Tax Documentation.
(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 2.14(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.
(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),
executed copies 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 United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, 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-E (or W-8BEN, 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) executed
copies of IRS Form W-8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal
Revenue Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed
copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-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 F-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 Internal Revenue 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 Internal Revenue 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.
(iii) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 2.14 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.
(g) Treatment
of Certain Refunds. If any Recipient 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 by the Borrower or with respect to which the Borrower has paid additional amounts pursuant
to this Section 2.14, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 2.14 with respect to the Taxes giving rise to such refund), net of
all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Recipient, agrees to repay
the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to
the contrary in this clause (g), in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this
clause (g) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have
been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and
the indemnification payments or additional amounts with respect to such Tax had never been paid. Such Recipient shall, at the Borrower’s
request, provide the Recipient with a copy of any notice of assessment or other evidence of the requirement to repay such refund received
from the relevant taxing authority (provided that such Recipient may redact any information therein that such Recipient deems confidential).
This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to
its Taxes that it deems confidential) to the Borrower or any other Person.
(h) Survival.
Each party’s obligations under this Section 2.14 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 other obligations of the Borrower under the Loan Documents.
SECTION 2.15. Evidence of Debt. (a) 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 Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice
to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order
for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a promissory note or other evidence of indebtedness, in form and
substance reasonably satisfactory to the Borrower and such Lender (each a “Note”) with respect to such Advances.
(b) The
Register maintained by the Administrative Agent pursuant to Section 8.06(c) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder,
the Tranche and Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder, and (iv) the amount of any sum received by the Administrative
Agent from the Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account
or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative
Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.16. Use of
Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) to fund a portion
of the cash consideration for the Acorn Acquisition and to pay fees and expenses incurred in connection with the Transactions. Neither
the Borrower nor any of its Subsidiaries shall use the proceeds of any Borrowing 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.
Neither the Borrower nor any of its Subsidiaries shall use the proceeds of any Borrowing (x) for the purpose of financing any activities,
business or transaction of or with any Sanctioned Person or a Person known by the Borrower to be controlled by a Sanctioned Person, or
in any Sanctioned Country, except where such activities, business or transaction could be conducted legally by a U.S. Person or (y) in
any other manner that would result in a violation of Sanctions by any Lender.
SECTION 2.17. [Reserved].
SECTION 2.18.
[Reserved].
SECTION 2.19. [Reserved].
SECTION 2.20. [Reserved].
SECTION 2.21. Defaulting Lenders. (a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in Section 8.01.
(ii) Reallocation
of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise, and including any amounts made
available to the Administrative Agent by such Defaulting Lender pursuant to Section 8.04) under this Agreement, 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, as the Borrower may request (so long as no Default exists),
to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement;
third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account
and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; fourth, to the
payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against
such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so
long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; and seventh, 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 Advances in respect of which such Defaulting Lender has not
fully funded its appropriate share and (y) such Advances were made at a time when the conditions set forth in Section 3.02 were
satisfied or waived, such payment shall be applied solely to pay the Advances of all non-Defaulting Lenders on a pro rata basis prior
to being applied to the payment of any Advances of such Defaulting Lender. 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 pursuant to this Section 2.21(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain
Fees. Such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 2.04(a) for any period
during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have
been required to have been paid to such Defaulting Lender).
(b) Defaulting
Lender Cure. If the Borrower and the Administrative Agent agree in writing in
their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein,
that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver
or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
SECTION 2.22. Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 2.11, or requires the Borrower to pay any Indemnified
Taxes in accordance with Section 2.14(c) or additional amounts to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.14, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate
a different Lending Office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.11 or 2.14, as the case may be, in the future, and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any Indemnified Taxes
in accordance with Section 2.14(c) or additional amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.14 and, in each case, such Lender has declined or is unable to designate a different lending office
in accordance with paragraph (a) of this Section that eliminate or reduce the amounts payable pursuant to Section 2.11
or 2.14, or if any Lender is a Defaulting Lender or a Non-Approving Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 8.06), all of its interests, rights (other than its existing
rights to payments pursuant to Section 2.11 or Section 2.14) and obligations under this Agreement and the related Loan Documents
to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that:
(i) the
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 8.06;
(ii) such
Lender shall have received payment of an amount equal to the outstanding principal amount of its Advances, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.11)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant
to Section 2.14, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such
assignment does not conflict with applicable law; and
(v) in
the case of any assignment resulting from a Lender becoming a Non-Approving Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment
or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
Notwithstanding anything in this Section to
the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 7.07.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to the Effective Date.
This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions
precedent have been satisfied (or waived in accordance with Section 8.01):
(a) There
shall have occurred no Material Adverse Change since January 29, 2022.
(b) The
Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory
to the Administrative Agent:
(i) Certified
copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and of all documents (including, for the
avoidance of doubt, corporate organizational documents and a good standing certificate from the secretary of state of the Borrower’s
jurisdiction of organization) evidencing the taking of any necessary corporate action with respect to this Agreement and the other Loan
Documents.
(ii) A
certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement, each other Loan Document and the other documents to be delivered hereunder or thereunder.
(iii) A
favorable opinion of (i) Christine S. Wheatley, Group Vice President, Secretary and General Counsel for the Borrower, and of (ii) Weil
Gotshal & Manges LLP, special New York counsel for the Borrower, as to the enforceability of this Agreement under New York law,
in each case, in customary form and substance.
(iv) at
least three Business Days prior to the Effective Date, any documentation or other evidence reasonably requested by the Administrative
Agent or any Lender in order to comply with all necessary “know your customer” or other similar checks under all applicable
laws and regulations and, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, a duly executed Beneficial Ownership Certification, in each case, to the extent requested at least five days prior to the
anticipated Effective Date.
(c) The
Arrangers, the Administrative Agent and the Lenders shall have received (or shall simultaneously receive) all fees and invoiced expenses
required to be paid on or prior to the Effective Date pursuant to the Acorn Fee Letters or the Loan Documents; provided, that,
in the case of expenses, the Borrower has received a reasonably detailed summary of such expenses not less than two Business Days prior
to the Effective Date.
SECTION 3.02. Conditions Precedent to Borrowing on the Closing
Date. The obligation of each Lender to make an Advance to the Borrower on the Closing Date shall be subject to the following conditions
precedent having been satisfied (or waived in accordance with Section 8.01):
(a) The
Effective Date shall have occurred.
(b) The
Acorn Acquisition shall have been consummated substantially concurrently with the Borrowing of Advances hereunder on the Closing Date
materially in accordance with the Acorn Acquisition Agreement as in effect on October 13, 2022 and the Acorn Acquisition Agreement
as in effect on October 13, 2022 shall not have been amended or modified, and no condition shall have been waived or consent granted
by the Borrower, in any respect that is materially adverse to the Lenders without the Administrative Agent’s prior written consent
(such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (a) any decrease in the purchase
price shall not be materially adverse to the interests of the Lenders so long as such decrease is less than 15% of the aggregate consideration
for the Acorn Acquisition (it being understood and agreed that any purchase price decreases contemplated in the proviso below shall not
count towards such 15% cap) and such reduction is applied, subject to the applicable mandatory prepayment and commitment reduction requirements
of the Acorn Bridge Facility, to reduce the Commitments hereunder on a dollar-for-dollar basis (which reduction shall be allocated first
to a reduction of Tranche B Commitments and then to a reduction of Tranche A Commitments), (b) any decrease in the purchase price
shall be materially adverse to the interests of the Lenders if such decrease is equal to or greater than 15% of the aggregate consideration
for the Acorn Acquisition (it being understood and agreed that any purchase price decreases contemplated in the proviso below shall not
count towards such 15% cap) and,
(c) any increase in the purchase price shall not be materially adverse to the Lenders so long as such increase is not funded with
third-party debt for borrowed money and (d) any extension of the “Outside
Date” under the Acorn Acquisition Agreement shall not be materially adverse to the interests of the Lenders so long as such “Outside
Date” is not extended past December 31, 2024); provided that, notwithstanding anything to the contrary in the
foregoing, (I) any purchase price decrease pursuant to the terms of the Acorn Acquisition Agreement as in effect on October 13,
2022 shall not be materially adverse to the interests of the Lenders and (x) no amount of any such purchase price decrease (other
than any purchase price decrease described in clause (y) below) shall be required to be applied to reduce the Commitments or
any other indebtedness of the Borrower and (y) any purchase price decrease pursuant to the definition of “SpinCo Consideration
Adjustment Amount” in the Acorn Acquisition Agreement as in effect on October 13, 2022 shall, subject to the mandatory prepayment
and commitment reduction requirements of the Acorn Bridge Facility, automatically reduce the Tranche B Commitments (but not Tranche A
Commitments) on a dollar-for-dollar basis and (II) any increase in the number of stores contributed to SpinCo (as defined in the
Acorn Acquisition Agreement as in effect on October 13, 2022) and any waiver, modification, amendment or consent, to the extent it
effects the foregoing changes, shall not be materially adverse to the Lenders, so long as there is a purchase price decrease pursuant
to the definition of “SpinCo Consideration Adjustment Amount” with respect to such stores and either the Acorn
Bridge Facility or the Tranche B Commitments is correspondingly reduced in accordance with clause (I)(y) above.
(c) Except
(x) as disclosed in the reports, schedules, forms, statements and other documents filed by the Company with or furnished by the Company
to the SEC on or after June 20, 2020 (excluding any disclosures set forth in any such Filed Company SEC Documents in any risk factor
section, any forward-looking disclosure or any other statements that are non-specific, predictive or primarily cautionary in nature other
than historical facts included therein and solely where the relevance of the information as an exception to (or disclosure for purposes
of) a particular representation is reasonably apparent on the face of such disclosure) and publicly available prior to the date of the
Agreement, (y) as set forth in the disclosure letter delivered by the Company to Parent as of the date hereof, or (z) to the
extent relating to SpinCo, the SpinCo Business, SpinCo Assets, SpinCo Liabilities or SpinCo Employees or any Divestment Actions, and disregarding
the Divestment Actions (including, for the avoidance of doubt, the Separation and the Distribution) or any effects thereof, since February 26,
2022, there has not been any Company Material Adverse Effect. Solely for purposes of this Section 3.02(c), all capitalized terms
used in this Section 3.02(c) shall have the meanings attributed thereto in the Acorn Acquisition Agreement as in effect on October 13,
2022.
(d) To
the extent also provided to Citibank and WF Securities, each in its capacity as lead arranger of the Acorn Bridge Facility, the Arrangers
shall have received (a) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity
and cash flows of each of Borrower and Acorn for the two most recent fiscal years ended at least 100 days prior to the Closing Date and
(b) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of
each of Borrower and Acorn for each subsequent fiscal quarter (other than the fourth fiscal quarter) ended at least 50 days before
the Closing Date (and the corresponding period in the prior year); provided, that the financial statements required to be delivered
by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting
rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3. The
Arrangers hereby acknowledge that the Borrower’s and Acorn’s respective public filings with the SEC under the Exchange Act
of any required financial statements will satisfy the requirements of this clause (d).
(e) To
the extent also provided to Citibank and WF Securities, each in its capacity as lead arranger of the Acorn Bridge Facility, the Arrangers
shall have received, as required by Rule 3-05 and Article 11 of Regulation S-X, customary pro forma financial statements of
the Borrower giving effect to the Transactions, regardless of when such pro forma financial statements are required to be filed with the
SEC, meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting rules and
regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3.
(f) The
Administrative Agent shall have received a duly completed and executed (i) Notice of Borrowing substantially the form of Exhibit A
hereto and (ii) solvency certificate in substantially the form of Exhibit E hereto.
(g) The
Arrangers, the Administrative Agent and the Lenders shall have received (or shall simultaneously receive) all fees and invoiced expenses
required to be paid on or prior to the Closing Date pursuant to the Fee Letters or the Loan Documents; provided, that, in the case
of expenses, the Borrower has received a reasonably detailed summary of such expenses not less than two Business Days prior to the Closing
Date (which amounts may be offset against the proceeds of the Advances).
(h) No
Event of Default under Section 6.01(a) (with respect to fees) or Section 6.01(e) (with respect to the Borrower)
shall have occurred and be continuing (after giving pro forma effect to the Transactions).
(i) The
Specified Representations and the Acorn Acquisition Agreement Representations shall be true and correct in all material respects on and
as of the Closing Date.
(j) The
Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, to the extent reasonably requested by the Administrative
Agent at least 10 Business Days prior to the Closing Date.
(k) On
the Closing Date, the Administrative Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated
the Closing Date, stating that the conditions precedent set forth in Sections 3.02(b), (c), (h) and (i) have been satisfied.
SECTION 3.03. Determinations Under Section 3.01 and Section 3.02.
Without limiting the generality of the provisions of the last paragraph of Section 7.03, for purposes of determining compliance with
the conditions specified in Section 3.01 and/or Section 3.02, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior
to the proposed Effective Date and/or Closing Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
On each of the Effective Date (other than with respect to the representation and warranty contained in clause (l) below) and the
Closing Date, the Borrower represents and warrants as follows:
(a) The
Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio.
(b) The
execution, delivery and performance by the Borrower of the Loan Documents and the other documents which are delivered hereunder and the
consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Borrower’s charter, regulations or by-laws, as applicable,
or (ii) (x) any law or (y) any contractual restriction, in each case, binding on or affecting the Borrower, except,
in the case of this clause (ii), for such contraventions that would not reasonably be expected to result in a Material Adverse Effect.
(c) No
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by the Borrower of any Loan Document, except for (i) those
authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and
effect and (ii) those authorizations, approvals, actions, notices and filings the failure to obtain, take, give or make, would not
reasonably result in a Material Adverse Effect.
(d) This
Agreement has been, and each of the other Loan Documents when delivered will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the other Loan Documents, when delivered hereunder, will be, the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with their respective terms, except as such enforceability may be limited by
any bankruptcy, insolvency or other similar debtor relief laws or other laws affecting creditors’ rights generally and by general
principles of equity and principles of good faith and fair dealing.
(e) The
Consolidated balance sheet of the Borrower and its Subsidiaries and variable interest entities in which the Borrower is the primary beneficiary
as at January 29February 3,
20224, and the related
Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year ended as of January 29February 3,
20224, accompanied
by an opinion of PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to each Lender, fairly
present the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting
principles consistently applied. Since January 29February 3,
20224, there has
been no Material Adverse Change.
(f) There
is no pending or threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before
any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (other than any
litigation disclosed on any of the Borrower’s periodic or current reports on Form 10-K, 10-Q or 8-K filed with the SEC) or
(ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated
hereby and thereby.
(g) The
Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) The
Borrower is not an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The
Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower, its
Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower
and its Subsidiaries are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. The proceeds of the
Advances made hereunder on the Closing Date shall not be used in violation of the Patriot Act. None of the Borrower, any Subsidiary or
any of their respective directors or officers, or, to the knowledge of the Borrower, any of their respective employees or any agent of
the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby,
is, or is controlled by, a Sanctioned Person.
(j) The
Borrower is not an Affected Financial Institution.
(k) The
information included in the Beneficial Ownership Certification, if any, provided by the Borrower on or prior to the date of this Agreement
to any Lender in connection with this Agreement is true and correct in all respects on and as of the Effective Date.[Reserved.]
(l) As
of the Closing Date and immediately after giving effect to the Transactions, the Borrower and its Subsidiaries, on a consolidated basis,
are Solvent.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01.
Affirmative Covenants. From and after the Effective Date, and for so long as any Advance shall remain unpaid or any Lender
shall have any Commitment hereunder shall remain outstanding, the Borrower will:
(a) Compliance
with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and Environmental Laws, except, in each case, to the extent that failure
to so comply would result in a Material Adverse Effect, and maintain in effect policies and procedures reasonably designed to promote
compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws
and applicable Sanctions.
(b) Payment
of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all material
lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves are being maintained in
accordance with GAAP.
(c) Maintenance
of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar
properties in the same industries in which the Borrower or such Subsidiary operates; provided, however, that the Borrower
and its Subsidiaries may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties
in the same industries in which the Borrower or such Subsidiary operates and to the extent consistent with prudent business practice.
(d) Preservation
of Corporate Existence, Etc. Preserve and maintain, and cause each of its Material Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b) and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right or franchise if a Responsible Officer of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Borrower or such Subsidiary,
as the case may be, and that the loss thereof would not reasonably be expected to result in a Material Adverse Effect.
(e) Visitation
Rights. At any reasonable time and from time to time, permit the Administrative Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower
and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any of
their officers or directors and with their independent certified public accountants; provided that unless an Event of Default is
continuing, such visitation shall be limited to once per year for each of the Administrative Agent and each Lender.
(f) Keeping
of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance
of Properties, Etc. Maintain and preserve all of its properties in good working order and condition, ordinary wear and tear excepted,
and maintain all necessary licenses and permits if, in each case, failure to so maintain and preserve would result in a Material Adverse
Effect.
(h) Reporting
Requirements. Furnish to the Lenders:
(i) as
soon as available and in any event within 50 days after the end of each of the first three quarters of each Fiscal Year of the Borrower,
the Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the
end of such quarter, duly certified (subject to year-end audit adjustments) by a Financial Officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and certificates of a Financial Officer of the Borrower as to compliance with
the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.03;
provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as
soon as available and in any event within 100 days after the end of each Fiscal Year of the Borrower, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, containing the Consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such Fiscal Year and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized
standing, provided that in the event of any change in generally accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to GAAP;
(iii) together
with the delivery of the financial statements required under clauses (h)(i) and (h)(ii) above, a schedule (1) identifying
each Excluded Ocado CFC (which shall, subject to the limitations contained in the definition of “Excluded Ocado CFC”, constitute
the written notice of such designation required by the definition thereof) and (2) setting forth in reasonable detail the calculation
of the Excluded Ocado CFC Amount with respect to each Excluded Ocado CFC as of the end of such fiscal quarter, including (I) the
initial Excluded Ocado CFC Amount at the time the applicable Ocado CFC was first designated as an Excluded Ocado CFC and (II) commencing
with the second fiscal quarter ending after any Ocado CFC has been designated as an Excluded Ocado CFC, the change in the Excluded Ocado
CFC Amount with respect to such Excluded Ocado CFC from the previous fiscal quarter end.;
(iv) as
soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement
of a Financial Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to
take with respect thereto;
(v) promptly
after the sending or filing thereof, copies of all quarterly and annual reports and proxy solicitations that the Borrower sends to any
of its securityholders, and copies of all reports on Form 8-K that the Borrower or any Subsidiary files with the SEC (other than
reports on Form 8-K filed solely for the purpose of incorporating exhibits into a registration statement previously filed with the
SEC);
(vi) promptly
after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and
(vii) such
other information respecting the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time
reasonably request.
The financial statements required to be delivered pursuant
to clauses (i) and (ii) and the reports required to be delivered pursuant to clause (v) of this Section 5.01(h) shall
be deemed to have been delivered on the date on which the same have been posted on the SEC’s website at www.sec.govwww.sec.gov.
The Borrower hereby acknowledges that (a) the Administrative
Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
(w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders
to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials
constitute Proprietary Information, they shall be treated as set forth in Section 8.07); (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only
for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower
shall be under no obligation to mark any Borrower Materials “PUBLIC.”
(i) Subsidiary
Guarantors. Notify the Administrative Agent at the time that any Subsidiary of the Borrower becomes a guarantor of any senior unsecured
Debt of the Borrower in an outstanding principal amount in excess of $50,000,000, and promptly thereafter (and in any event within 30
days), cause such Subsidiary to (a) become a guarantor of the Borrower’s obligations under the Loan Documents by executing
and delivering to the Administrative Agent a counterpart of a guaranty in form and substance as the Administrative Agent shall deem appropriate
for such purpose, and (b) deliver to the Administrative Agent documents of the types referred to in clauses (ii) and (iii) of
Section 3.01(d) and favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent. Each Subsidiary that becomes a guarantor of the Borrower’s obligations under the Loan
Documents pursuant to this Section 5.01(i) shall be automatically released from its guarantee obligations upon either (x) such
Subsidiary ceasing to be a Subsidiary of the Borrower as a result of a transaction permitted hereunder or (y) such subsidiary ceasing
to guarantee senior unsecured Debt of the Borrower (other than Debt constituting obligations under the Loan Documents) in an outstanding
principal amount in excess of $50,000,000. The Lenders irrevocably authorize the Administrative Agent to, at the sole expense of the Borrower,
execute and deliver any documentation reasonably requested by the Borrower or any Subsidiary to evidence any release in accordance with
the immediately preceding sentence.
SECTION 5.02. Negative Covenants. From and after the Effective
Date, and for so long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder shall remain outstanding, the
Borrower will not:
(a) Liens,
Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
(i) Liens
on any property or assets of any corporation existing at the time such corporation becomes a Subsidiary; provided that such Lien
does not extend to any other property of the Borrower or any of its Subsidiaries;
(ii) Liens
on any property or assets (including stock) existing at the time of acquisition of such property or assets by the Borrower or any of its
Subsidiaries, or Liens to secure the payment of all or any part of the purchase price of such property or assets (including stock), upon
the acquisition of such property or assets by the Borrower or any of its Subsidiaries or to secure Debt incurred, assumed or guaranteed
by the Borrower or any of its Subsidiaries for the purpose of financing all or any part of the purchase price of such property or in the
case of real property, construction or improvements thereon, which Debt is incurred, assumed or guaranteed prior to, at the time of, or
within 18 months after such acquisition (or in the case of real property, completion of construction (including any improvements on an
existing asset) or commencement of full operations at such property, whichever is later (which in the case of a retail store is the opening
of the store for business to the public)), provided that in the case of any such acquisition, construction or improvement, the
Lien shall not apply to any other property or assets theretofore owned by the Borrower or any of its Subsidiaries; or Liens attaching
to property substituted by the Borrower to obtain the release of a Lien on other property of the Borrower on which a Lien then exists;
(iii) Liens
securing Debt owing by any Subsidiary of the Borrower to the Borrower or to another Subsidiary of the Borrower;
(iv) Liens
on any property or assets of a corporation existing at the time such corporation is merged into or consolidated with the Borrower or any
of its Subsidiaries or at the time of a purchase, lease or other acquisition or the assets of a corporation or firm as an entirety or
substantially as an entirety by the Borrower or any of its Subsidiaries; provided that such Lien does not extend to any other property
of the Borrower or any of its Subsidiaries;
(v) Liens
on any property or assets of the Borrower or any of its Subsidiaries in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of
any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any Debt incurred or guaranteed for the purpose of financing all or any part of the purchase price (or, in the
case of real property, the cost of construction) of the property or assets subject to such Liens (including, but not limited to, Liens
incurred in connection with pollution control, industrial revenue or similar financing);
(vi) Liens
existing on properties or assets of the Borrower or any of its Subsidiaries existing on the Effective Date; provided that such
Liens shall secure only those obligations which they secure on the Effective Date or any extension, renewal or replacement thereof;
(vii) any
extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses (i) to (vi), inclusive; provided that such extension, renewal or replacement shall be limited to all
or a part of the property or assets to which the Lien so extended, renewed or replaced had attached (plus improvements and construction
on real property);
(viii) Liens
imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’ warehouseman’s,
vendors’, or other similar Liens arising in the ordinary course of business of the Borrower or any of its Subsidiaries, or governmental
(federal, state or municipal) Liens arising out of contracts for the sale of products or services by the Borrower or any of its Subsidiaries,
or deposits or pledges to obtain the release of any of the foregoing Liens;
(ix) pledges,
Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently
dischargeable, or in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Borrower or
any of its Subsidiaries is a party, or to secure the public or statutory obligations of the Borrower or any of its Subsidiaries, or in
connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or to secure surety, appeal or customs bonds to which the
Borrower or any of its Subsidiaries is a party, or in litigation or other proceedings such as, but not limited to, interpleader proceedings,
and other similar pledges, Liens or deposits made or incurred in the ordinary course of business;
(x) Liens
created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including
Liens arising out of judgments or awards against the Borrower or any of its Subsidiaries, with respect to which the Borrower or such Subsidiary
is in good faith prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final
unappealable judgment Liens which are satisfied within 30 days of the date of judgment; or Liens incurred by the Borrower or any of its
Subsidiaries for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Borrower
or such Subsidiary is a party; or Liens securing judgments which would not result in an Event of Default under Section 6.01(f);
(xi) Liens
for taxes or assessments of governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other
Liens or charges incidental to the conduct of the business of the Borrower or any of its Subsidiaries or the ownership of the property
or assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and
which do not, in the opinion of the Borrower, materially impair the use of such property or assets in the operation of the business of
the Borrower or such Subsidiary or the value of such property or assets for the purposes of such business; or
(xii) Liens
not permitted by the foregoing clauses (i) to (xi), inclusive, if at the time of, and after giving effect to, the creation or assumption
of such Lien, the aggregate amount of all Debt of the Borrower and its Subsidiaries secured by all Liens not so permitted by the foregoing
clauses (i) through (xi) above together with the Attributable Debt in respect of Sale and Lease-Back Transactions (as such terms
are defined in, and such amount is calculated in accordance with, the Indenture) does not exceed 10% of Consolidated Net Tangible Assets.
(b) Mergers,
Etc. Merge or consolidate with or into any Person, or permit any of its Subsidiaries to do so, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole, except that (i) any Subsidiary of the Borrower may merge or consolidate with or into or dispose of
assets to any other Subsidiary of the Borrower or into any other Person (so long as the surviving corporation is a Subsidiary of the Borrower);
provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would
result therefrom and (ii) any Subsidiary of the Borrower or any other Person may merge into or dispose of assets to the Borrower.
(c) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any significant change in accounting policies or reporting
practices, except as required by generally accepted accounting principles. The parties acknowledge that the Borrower and its Subsidiaries
may change their fiscal years to conform the fiscal years of the Borrower and its Subsidiaries.
(d) [Reserved].
(e) Subsidiary
Debt. Permit any of its Subsidiaries (other than any Subsidiary that is a guarantor of the Borrower’s obligations under the
Loan Documents) to create or suffer to exist, any Debt other than:
(i) Debt
owed to the Borrower or to a wholly owned Subsidiary of the Borrower;
(ii) Debt
consisting of Finance Lease Obligations;
(iii) Debt
(after deducting Debt permitted under clauses (i), (ii), and (iv) of this Section 5.02(e))
aggregating for all of the Borrower’s Subsidiaries not more than 5% of Consolidated Tangible Assets at any one time
outstanding; and
(iv) endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business.
SECTION 5.03.
Financial Covenant. From and following the Closing Date, the Borrower will maintain a Leverage Ratio (determined as of the last
day of each Fiscal Quarter for the Rolling Period ending on such day) of not greater than 4.50:1.00, with step-downs to (1) 4.25:1.00
for the Rolling Periods ending on the last day of the third and fourth full Fiscal Quarters after the Closing Date, (2) 4.00:1.00
for the Rolling Periods ending on the last day of the fifth and sixth full Fiscal Quarters after the Closing Date, (3) 3.75:1.00
for the Rolling Periods ending on the last day of the seventh and eighth full Fiscal Quarters after the Closing Date and (4) 3.50:1.00
for the Rolling Periods ending on the last day of the ninth full Fiscal Quarter after the Closing Date and each Rolling Period thereafter;
provided, further, that following (but excluding) the last day of the ninth full Fiscal Quarter after the Closing Date,
upon the written notice of the Borrower (such notice, which shall include a listing of the acquisition or acquisitions so made, a “Covenant
Reset Notice”) to the Administrative Agent that the Borrower and/or any of its Subsidiaries has, during the prior twelve month
period, made an acquisition or series of acquisitions whose aggregate cash consideration equals or exceeds $1,000,000,000, the maximum
Leverage Ratio permitted under this Section 5.03 shall be automatically, without any action on the part of the Administrative Agent
or any Lender, increase from 3.50:1.00 to 4.00:1.00 for a period of four fiscal quarters (a “Covenant Reset Period”),
commencing with the fiscal quarter during which the first subject acquisition included in the Covenant Reset Notice is consummated; provided,
further, that before becoming entitled to an additional Covenant Reset Period, the Borrower shall deliver to the Administrative
Agent compliance certificates pursuant to Section 5.01(h) evidencing the Borrower’s compliance with a Leverage Ratio of
3.50 to 1.00 for at least two full fiscal quarters prior to the beginning of such additional Covenant Reset Period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events (“Events of Default”) shall occur and be continuing:
(a) The
Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest
on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within three Business Days
after the same becomes due and payable; or
(b) Any
representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) in connection with any Loan Document
shall prove to have been incorrect in any material respect when made; or
(c) (i) The
Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.16, 5.01(d), (with respect to the
Borrower only) or (h)(iv), 5.02 (other than subsection (c)) or 5.03, or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(d) The
Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal
or notional amount of at least $250,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating
to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof;
or
(e) The
Borrower or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Borrower or any of its Material Subsidiaries seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of
the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower
or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e);
or
(f) Any
judgment or order for the payment of money in excess of $250,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 6.01(f) if
and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant
and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best Company,
has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order; or
(g) Any
Change of Control shall have occurred; or
(h) (x) A
Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 430(j) of
the Internal Revenue Code) shall have occurred with respect to any Plan or Plans, (y) a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans or (z) the PBGC shall institute proceedings (including giving notice of intent
thereof) to terminate any Plan or Plans, that, in any such case, results in liability of the Borrower or any of its Subsidiaries to the
PBGC or to a Plan in an aggregate amount exceeding $250,000,000 and an amount due the PBGC or a Plan in respect of such liability in an
amount exceeding $250,000,000 remains unpaid 30 days after such payment is due; or
(i) (i) the
Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan, (ii) the Borrower or such ERISA Affiliate does not have reasonable grounds for contesting such Withdrawal
Liability or is not in fact contesting such Withdrawal Liability in a timely and appropriate manner and (iii) the amount of the Withdrawal
Liability specified in such notice, when aggregated with all other amounts required to be paid by the Borrower or any of its ERISA Affiliates
to Multiemployer Plans in connection with Withdrawal Liabilities (determined as of the date or dates of such notification) exceeds $250,000,000
and Withdrawal Liabilities in an aggregate amount exceeding $250,000,000 remain unpaid 30 days after such payment is due (unless
such Withdrawal Liability is being contested in good faith by the Borrower or any ERISA Affiliate); or
(j) the
Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent
or in endangered or critical status or is being terminated,
within the meaning of Section 305 of ERISA or Section 432 of the Internal Revenue Code, or
is insolvent or being terminated, within the meaning ofand
Title IV of ERISA, if solely as a result of such insolvency or status
or termination the aggregate contributions of the Borrower and its ERISA Affiliates to all Multiemployer Plans that are then in such insolvency
or status or have been or are being terminated have been or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an amount exceeding $250,000,000 and any such contribution in an amount
exceeding $250,000,000 remains unpaid 30 days after such payment is due; or
(k) any
Loan Document shall not be for any reason, or shall be asserted by the Borrower (except as otherwise expressly provided in this Agreement
or such Loan Document) not to be, in full force and effect and enforceable in all material respects in accordance with its terms;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall forthwith terminate, (ii) [reserved], and (iii) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect
to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated
and (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything herein to
the contrary, this Section 6.01 is qualified by Section 6.02 below.
SECTION 6.02. Limitations on Remedies Between Effective Date
and Closing Date. Without limiting (and subject to) the conditions precedent set forth in Section 3.01 and Section 3.02,
during the period from and including the Effective Date and to and including the termination of the Commitments hereunder, or the funding
of the Advances hereunder on the Closing Date, and notwithstanding (a) any failure by the Borrower or any of its Subsidiaries to
comply with any of the affirmative covenants set forth in Section 5.01, the negative covenants set forth in Section 5.02, the
financial covenant set forth in Section 5.03 or any other covenant set forth herein or in any other Loan Document, (b) the occurrence
of any Event of Default (other than (x) an Event of Default under Section 6.01(a) with respect to nonpayment of fees or
(y) an Event of Default under Section 6.01(e) with respect to the Borrower) or (c) subject to the parenthetical in
clause (b) above, any provision to the contrary in the Loan Documents, neither the Administrative Agent nor the Lenders shall be
permitted to (i) rescind, terminate or cancel this Agreement or its Commitments hereunder, or exercise any right or remedy hereunder
or under the other Loan Documents, to the extent to do so would prevent, limit or delay the making of the Advances hereunder on the Closing
Date, (ii) refuse to participate in making its Advance on the Closing Date or (iii) exercise any right of set-off or counterclaim
in respect of its Advances hereunder to the extent to do so would prevent, limit or delay the making of its Advance on the Closing Date;
provided that, it is understood that (A) the Borrowing hereunder on the Closing Date shall be subject to the satisfaction (or waiver)
of the conditions precedent set forth in Section 3.02 and (B) Commitments shall be reduced as provided under Section 2.05.
The acceleration of the Advances in accordance with the last paragraph of Section 6.01 shall be permitted at any time after the Advances
have been funded only to the extent that an Event of Default is outstanding and continuing at such time. For the avoidance of doubt, from
the Closing Date after giving effect to the funding of the Advances on such date, all of the rights, remedies and entitlements of the
Administrative Agent and the Lenders shall be available notwithstanding that such rights were not available prior to such time as a result
of the foregoing.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authority. Each Lender (in
its capacity as a Lender) hereby irrevocably appoints Citibank to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not
have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent”
herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used
as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 7.02. Rights as a Lender. The Person serving as
the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 7.03. Exculpatory Provisions. None of the Administrative
Agent, the Co-Syndication Agents, the Co-Documentation Agents nor any Arranger shall have any duties or obligations to the Lenders except
those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without
limiting the generality of the foregoing, the Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents or the Arrangers,
as applicable:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents or that the Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including
for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law;
(c) shall
not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender any credit or other
information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower
or any of its Affiliates, that is communicated to, obtained or in the possession of, the Administrative Agent, the Co-Syndication Agents,
the Co-Documentation Agents, any Arranger or any of their Related Parties in any capacity, except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent herein;
(d) shall
not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Section 8.01 and Article VI) or (ii) in the absence of its own gross negligence
or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative
Agent by the Borrower or a Lender; and
(e) 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 this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.
SECTION 7.04. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Advance.
The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
SECTION 7.05. Indemnification. (a) The Lenders agree
to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower without limiting the obligation
of the Borrower to do so), ratably according to the respective Commitments of the Lenders or the respective principal amounts of the Advances
then owing to each of them, as applicable, from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against
the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative
Agent under the Loan Documents (collectively, the “Indemnified Costs”), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Administrative Agent’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery,
modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or a third party.
(b) [Reserved].
(c) The
failure of any Lender to reimburse the Administrative Agent promptly upon demand for its share of any amount required to be paid by the
Lenders to the Administrative Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the
Administrative Agent for its Ratable Share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse
the Administrative Agent for such other Lender’s Ratable Share of such amount. Without prejudice to the survival of any other agreement
of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall survive the payment in
full of principal, interest and all other amounts payable hereunder. In the case of any investigation, litigation or proceeding giving
rise to any indemnification under this Section, this Section applies whether any such investigation, litigation or proceeding is
brought by the Administrative Agent, any Lender or a third party. The Administrative Agent agrees to return to the Lenders their respective
shares of any amounts paid under this Section that are subsequently reimbursed by the Borrower.
SECTION 7.06. Delegation of Duties. The Administrative
Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and
all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to
the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted
with gross negligence or willful misconduct in the selection of such sub-agents.
SECTION 7.07. Resignation of Administrative Agent. (a)
The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, subject to the approval of the Borrower so long as no Event of Default is continuing,
to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by
the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may on behalf of the
Lenders, subject to the approval of the Borrower so long as no Event of Default is continuing, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting
Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation
Effective Date.
(b) If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required
Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative
Agent and, subject to the approval of the Borrower so long as no Event of Default is continuing, appoint a successor. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall
be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective
in accordance with such notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, all payments,
communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 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 the Administrative Agent.
SECTION 7.08.
Non-Reliance on Administrative Agent, Co-Documentation Agents, Co-Syndication Agents, Arrangers and Other Lenders. Each
Lender expressly acknowledges that none of the Administrative Agent, any Co-Documentation Agent, any Co-Syndication Agent or any Arranger
has made any representation or warranty to it, and that no act by the Administrative Agent, any Co-Documentation Agent, any Co-Syndication
Agent or any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of the Borrower
of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, any Co-Documentation
Agent, any Co-Syndication Agent or any Arranger to any Lender as to any matter, including whether the Administrative Agent, the Co-Documentation
Agents, the Co-Syndication Agents or the Arrangers have disclosed material information in their (or their Related Parties’) possession.
Each Lender represents to the Administrative Agent, the Co-Documentation Agents, the Co-Syndication Agents and the Arrangers that it has,
independently and without reliance upon the Administrative Agent, any Co-Documentation Agent, any Co-Syndication Agent, any Arranger,
any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries, and all applicable bank or other regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Co-Documentation Agent, any Co-Syndication
Agent, any Arranger, any other Lender or any of their Related Parties and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such
investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial
lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into
this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein
as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument,
and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated
with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable
to such Lender, 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.
SECTION 7.09. No Other Duties, Etc. Anything herein to
the contrary notwithstanding, none of the Co-Documentation Agents, the Co-Syndication Agents or the Arrangers 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 or a Lender hereunder.
SECTION 7.10. Administrative Agent May File Proofs of
Claim. In case of the pendency of any proceeding under any debtor relief law or any other judicial proceeding relative to the Borrower,
the Administrative Agent (irrespective of whether the principal of any Advance shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Advances 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
and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative
Agent under Sections 2.04 and 8.03) allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to
the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.04 and 8.03.
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 any plan of reorganization, arrangement, adjustment or composition
affecting the obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
SECTION 7.11. Lender ERISA
Representation. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least
one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments
or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration
of and performance of the Advances, 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
Advances, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative
Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration
of and performance of the Advances, the Commitments and this Agreement (including in connection with the reservation or exercise of any
rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
As used in this Section, the following terms shall have the following
meanings:
“Benefit Plan” means any of (a) an “employee
benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject
to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee
benefit plan” or “plan”.
“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.
SECTION 7.12. Erroneous Payments.
(a) If
the Administrative Agent (x) notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender
or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative
Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that
any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent
or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment
Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received
as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous
Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment
shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 7.12
and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received
such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or
such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount
of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received),
together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including
the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative
Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment
Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without
limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of
their respective successors and assigns) agrees that if it receives a payment, prepayment or repayment (whether received as a payment,
prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates)
(x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment,
prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment,
(y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any
of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error
or by mistake (in whole or in part), then in each such case:
(i) it
acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed
to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been
made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such
Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf
to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in
immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment,
the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 7.12(b).
For the avoidance of doubt, the failure to deliver a notice
to the Administrative Agent pursuant to this Section 7.12(b) shall not have any effect on a Payment Recipient’s obligations
pursuant to Section 7.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each
Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under
any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender under any Loan Document with respect
to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned
under immediately preceding clause (a).
(d)
(i) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or
from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount,
an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time,
then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed
to have assigned its Advances (but not its Commitments) of the relevant Tranche with respect to which such Erroneous Payment was made
(the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser
amount as the Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted
Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any
accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together
with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating
an Assignment and Acceptance by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants)
with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the
Borrower or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the
foregoing assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment
Deficiency Assignment, (C) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as
applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender,
as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations
under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender,
(D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any
such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest
in the Advances subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment
will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject
to Section 8.06 (but excluding, in all events, any assignment consent or approval requirements (other than the requirement
to obtain the Borrower’s consent, if any)), the Administrative Agent may, in its discretion, sell any Advances acquired pursuant
to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing
by the applicable Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Administrative
Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its
respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the
proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received
by the Administrative Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency
Assignment (to the extent that any such Advances are then owned by the Administrative Agent) and (y) may, in the sole discretion
of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time
to time.
(e) The
parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an
Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion
thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and,
in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender) under the
Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrower’s
obligations hereunder and under the other Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative
of such obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment)
and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by the Borrower hereunder
or under any other Loan Document; provided that this Section 7.12 shall not be interpreted to increase (or accelerate the
due date for), or have the effect of increasing (or accelerating the due date for), the obligations of the Borrower relative to the amount
(and/or timing for payment) of the obligations that would have been payable had such Erroneous Payment not been made by the Administrative
Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not
apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised
of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge
for value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 7.12 shall survive the resignation or replacement of the Administrative
Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all obligations (or any portion thereof) owed by the Borrower hereunder or under any Loan Document.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01.
Waivers; Amendments, Etc. (a) No failure or delay on the part of the Administrative Agent or any Lender in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuation 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 and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure
by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than
a waiver of the minimum amount of Commitments or Advances assumed by an assignee pursuant to Section 8.06, which may be waived by
unilateral consent of the Borrower), and then such waiver or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders (or, in the case of any waiver, amendment or modification that only affects the rights and
obligations of the Lenders, Advances or Commitments of one Tranche but not the other, the Lenders holding more than 50% of the outstanding
Commitments or Advances of such affected Tranche) and either acknowledged by or notified to the Administrative Agent; provided,
however, that no such agreement shall (A) change the principal amount of any Advance, extend the final scheduled maturity
of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance, forgive any such
payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender
affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender or reduce or extend the
date for payment of the Commitment Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written
consent of such Lender or (C) amend or modify the provisions of Section 2.13, this Section 8.01(b), the definition of the
term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent
of each Lender directly and adversely affected thereby; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent; and provided,
further, that no waiver, amendment or modification that affects the Lenders under any Tranche adversely vis-a-vis the other Tranche
shall be effective without the prior written consent of the requisite Lenders (i.e., Lenders holding more than 50% of the outstanding
Commitments or Advances) in the adversely and differently affected Tranche. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders
other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender
that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting
Lender.
(c) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with
such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Article VI for the
benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder
and under the other Loan Documents, (b) [reserved], (c) any Lender from exercising setoff rights in accordance with Section 8.04
(subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Article VI and (ii) in addition
to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may,
with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 8.02.
Notices, Etc. (a) Notices. Except as otherwise expressly permitted herein, notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy, as follows:
(i) if
to the Borrower or the Administrative Agent, to the address, telecopier number, electronic mail address or telephone number specified
for such Person on Schedule 8.02; and
(ii) If
to any Lender, at its address (or telecopy number) set forth on its Administrative Questionnaire provided to the Administrative Agent
prior to the date hereof or in the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier
service or sent by telecopy (except that, if a notice or communication sent by telecopy is 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 for
the recipient), or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in Section 8.02 or in accordance with the latest unrevoked direction from
such party given in accordance with this Section 8.02. The Administrative Agent shall deliver to the Borrower a copy of each Administrative
Questionnaire received by it.
(b) Electronic
Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available
and identifying the website address therefor.
(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of
its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in
no event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).
(d) Change
of Address, Etc. Each of the Borrower and the Administrative Agent may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be
sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual
at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable law, including United States Federal and state securities Laws, to make reference
to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may
contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state
securities laws.
(e) Reliance
by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower, except to the extent that such losses, costs, expenses and liabilities have resulted from the gross negligence
or willful misconduct of such Person. All telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
SECTION 8.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower agrees to pay (i) the reasonable fees, disbursements and other charges of counsel for the Administrative Agent incurred
in connection with the preparation of this Agreement and the other Loan Documents or in connection with any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions hereby contemplated shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any Lender in connection with the enforcement or protection
of their rights in connection with this Agreement and the other Loan Documents or in connection with the Advances, including the reasonable
fees, disbursements and other charges of Davis Polk & Wardwell LLP, counsel for the Administrative Agent, in connection with
any such enforcement or protection and the reasonable fees, disbursements and other charges of any other counsel for the Administrative
Agent or any Lender, in each case within 30 days after receipt of a reasonably detailed written invoice therefor (together with, if reasonably
requested, documentation supporting such reimbursement request).
(b) The
Borrower agrees to indemnify the Administrative Agent and each Lender and each of their respective Related Parties (each such person being
called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including reasonable counsel fees (but limited, in the case of legal fees and expenses, to the reasonable and documented
or invoiced out-of-pocket fees and expenses of one counsel, but excluding the allocated cost of internal counsel, representing all of
the Indemnitees, taken as a whole, and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a
single special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as whole (and, in the case of an actual or perceived
conflict of interest where the Indemnitee affected by such conflict notifies the Borrower of the existence of such conflict and thereafter
retains its own counsel, those of another firm of counsel for each such affected Indemnitee and, if necessary, of a single local counsel
in each appropriate jurisdiction))), disbursements and other charges, incurred by or asserted against any Indemnitee by any third party
or by the Borrower arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or
any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) the use of the proceeds of the
Advances or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether brought by a third
party or by the Borrower 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 losses, claims, damages, liabilities or related expenses is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted from (x) such Indemnitee’s bad faith, gross negligence
or willful misconduct, (y) such Indemnitee’s material breach of its obligations under this Agreement or (z) any claim,
litigation, investigation or proceeding solely among Indemnitees not arising from or in connection with any act or omission by the Borrower
or any of its affiliates (other than any proceedings against an Arranger or the Administrative Agent, in each case, in its capacity or
in fulfilling its role as an administrative agent or arranger or other similar role under this Agreement). The Borrower shall not be liable
for any settlement of any suit, litigation or proceeding effected without its prior written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with the prior written consent of the Borrower or if there is a final judgment in any such suit,
litigation or proceeding, the Borrower shall indemnify and hold harmless each Indemnitee from and against any and all losses, claims,
damages, liabilities and expenses by reason of such settlement or judgment in accordance with this Section. This Section 8.03(b) shall
not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) If
any payment of principal of any Term SOFR Advance is made other than on the last day of the Interest Period for such Advance, as a result
of any Conversion, payment pursuant to Section 2.06, prepayment pursuant to Section 2.10(a) or 2.10(b), or acceleration
of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required
to compensate such Lender for any additional losses, costs or expenses that such Lender may incur as a result of such payment, including
any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) Each
of the Borrower and each of the Administrative Agent, any Lender or any of their respective Related Parties (each such person being called
a “Lender-Related Person”) agrees not to assert against any other party hereto any claim for special, indirect, consequential
or punitive damages arising out of or otherwise relating to the Advances, this Agreement, any of the transactions contemplated hereby
or the actual or proposed use of the proceeds of the Advances; provided, that nothing in this sentence shall limit the Borrower’s
indemnity and reimbursement obligations set forth in Section 8.03(b) with respect to any indirect, special, punitive or consequential
damages included in any third party claim in connection with which an Indemnitee is entitled to indemnification and reimbursement hereunder.
No Lender-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Lender-Related Person through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and non-appealable
judgment of a court of competent jurisdiction.
(e) The
provisions of this Section 8.03 shall remain operative and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Advances, the invalidity or unenforceability
of any term or provision of this Agreement, or any investigation made by or on behalf of the Administrative Agent or any Lender. All amounts
due under this Section 8.03 shall be payable on written demand therefor.
SECTION 8.04.
Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized, in addition to
any other right or remedy that any Lender may have by operation of law or otherwise, at any time and from time to time, without notice
to the Borrower (any such notice being expressly waived by the Borrower), to exercise its banker’s lien or right of setoff and apply
any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement and any Note held by such Lender, irrespective of whether such Lender shall have made any demand under this
Agreement or any Note and although such obligations may be unmatured; 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 2.21 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 and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting
Lender as to which it exercised such right of setoff. The rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender may have.
SECTION 8.05. Binding Effect. This Agreement shall become
effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent
and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.06.
Successors and Assigns. (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (e) of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (g) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section 8.06
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Advances at the time owing to it); provided that any such assignment shall
be subject to the following conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Advances at the time owing
to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such Assignments) that equal at least
the amount specified in clause (b)(i)(B) of this Section 8.06 in the aggregate or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in
any case not described in clause (b)(i)(A) of this Section 10.06, the aggregate amount of the Commitment or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default pursuant to Section 6.01(a) or Section 6.01(e) has
occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Advances and the Commitment assigned.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 8.06
and, in addition:
(A) (x) prior
to the Closing Date, the consent of the Borrower shall be required (which consent shall be in the Borrower’s sole discretion), unless
such assignment is to a Lender and (y) on and following the Closing Date, the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default pursuant to Section 6.01(a) or Section 6.01(e) has
occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund; provided that solely in the case of clause (y), the Borrower shall be deemed to have consented to any such assignment unless
it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof; and
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person
that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment
and Acceptance. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is
not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons).
(vi) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested
but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its
Ratable Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under applicable law without compliance with the provisions of this clause (vi), then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Subject
to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section 8.06, from and
after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 2.11, 2.14 and 8.03 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided
that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver
or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower
(at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this clause (b) 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 clause (d) of this Section 8.06.
(c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for Tax purposes),
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it (or the equivalent
thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts (and stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit
of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each,
a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Advances owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender
shall be responsible for the indemnity under Section 7.05 without regard to the existence of any participation.
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, waiver or other modification described
in the first proviso to Section 8.01(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.11, 2.14 and 8.03(c) to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to clause (b) of this Section 8.06 (it being understood that the documentation required under
Section 2.14(f) shall be delivered to the Lender who sells the participation); provided that such Participant (A) agrees
to be subject to the provisions of Section 2.22 as if it were an assignee under clause (b) of this Section 8.06 and (B) shall
not be entitled to receive any greater payment under Sections 2.11 or 2.14, with respect to any participation, than the Lender from whom
it acquired the applicable participation would have been entitled to receive, unless the sale of the participation to such Participant
is made with the Borrower’s prior written consent expressly acknowledging that such Participant’s entitlement to the benefits
under Sections 2.11 and 2.14 is not limited to what the participating Lender would have been entitled to receive absent the participation.
Each Lender that sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate with the
Borrower to effectuate the provisions of Section 2.22 with respect to any Participant. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 8.04 as though it were a Lender; provided that such Participant agrees to
be subject to Section 2.13 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 Advances or other obligations under the Loan Documents (the
“Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of
the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments,
loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) 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.
(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) [Reserved].
(g) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle (an “SPC”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement provided that (i) nothing herein shall
constitute a commitment to make any Advance by any SPC and (ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The
making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance
were made by the Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for
which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance
of the foregoing, each party hereto hereby agrees that, prior to the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States
or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 8.06, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (if consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit facilities to or for the account of such SPC to fund the Advances
made by such SPC or to support the securities (if any) issued by such SPC to fund such Advances and (ii) disclose on a confidential
basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of a surety, guarantee
or credit or liquidity enhancement to such SPC.
SECTION 8.07. Confidentiality. Unless otherwise agreed
to in writing by the Borrower, the Administrative Agent and each Lender hereby agree to keep all Proprietary Information (as defined below)
confidential and not to disclose or reveal any Proprietary Information to any Person other than the Administrative Agent’s or such
Lender’s directors, officers, employees, legal counsel, independent auditors, professionals, other experts or agents of such Person
(collectively, “Representatives”), its Affiliates and their respective Representatives, and to actual or potential
assignees and participants (in each case to the extent an Eligible Assignee), and then only on a confidential basis; provided,
however, that the Administrative Agent or any Lender may disclose Proprietary Information (a) as required by law, rule, regulation
or judicial process or in connection with any litigation or other proceeding relating to this Agreement (provided that except with respect
to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory
authority, the applicable Person shall give the Borrower notice of such disclosure on the same day on which it determines such disclosure
to be necessary and in any event prior to such disclosure to the extent not prohibited by law, and, if prior notice is prohibited by law,
shall give notice of such disclosure as promptly as is legally permitted), (b) [reserved], (c) as required by any state, or
Federal or foreign authority or examiner regulating banks or banking or other regulatory authority having jurisdiction or claiming to
have jurisdiction over such Person (provided that except with respect to any audit or examination conducted by bank accountants or any
governmental bank regulatory authority exercising examination or regulatory authority, the applicable Person shall give the Borrower notice
of such disclosure on the same day on which it determines such disclosure to be necessary and in any event prior to such disclosure to
the extent not prohibited by law, and, if prior notice is prohibited by law, shall give notice of such disclosure as promptly as is legally
permitted), (d) subject to an agreement containing provisions substantially the same as those of this Section which inures to
the benefit of the Borrower, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (e) [reserved], (f) to bank market-data collectors and other similar
bank trade publications, such information to consist of deal terms and other information customarily found in such publications, and (g) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement and the other Loan
Documents, or the transactions contemplated hereby or enforcement hereof and thereof. For purposes of this Agreement, the term “Proprietary
Information” shall include all information about the Borrower or any of its Affiliates that has been furnished by the Borrower
or any of its Affiliates, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished;
provided, however, that Proprietary Information does not include information that (i) is or becomes generally available
to the public other than as a result of a disclosure by the Administrative Agent or any Lender not permitted by this Agreement, (ii) was
available to the Administrative Agent or any Lender on a nonconfidential basis prior to its disclosure by the Administrative Agent or
such Lender by the Borrower or any of its Affiliates, (iii) becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a Person other than the Borrower or its Affiliates who, to the best knowledge of the Administrative Agent or such Lender, as
the case may be, is not otherwise bound by a confidentiality agreement with the Borrower or any of its Affiliates, or is not otherwise
prohibited from transmitting the information to the Administrative Agent or such Lender or (iv) is independently developed by the
Administrative Agent or any Lender. The Administrative Agent and each Lender shall be responsible for its Representatives’ compliance
with this Section 8.07. For the avoidance of doubt, nothing herein prohibits
any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental,
regulatory or self-regulatory authority in accordance with applicable whistleblower laws.
SECTION 8.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York; provided, however, that (a) the interpretation
of the definition of “Acorn Material Adverse Effect” (and whether or not an Acorn Material Adverse Effect has occurred or
would reasonably be expected to occur), (b) the determination of the accuracy of any Acorn Acquisition Agreement Representation and
whether as a result of such inaccuracy the Borrower (or an Affiliate of the Borrower) has the right to terminate its obligations under
the Acorn Acquisition Agreement or to decline to consummate the Acorn Acquisition as a result of a breach of such representations in the
Acorn Acquisition Agreement and (c) the determination of whether the Acorn Acquisition has been consummated in accordance with the
terms of the Acorn Acquisition Agreement shall, in each case, be governed by, and construed in accordance with, the laws of the State
of Delaware, without giving effect to the principles of conflicts of law thereof.
SECTION 8.09. Execution in Counterparts; Integration. This
Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier or other electronic medium shall be effective as delivery
of a manually executed counterpart of this Agreement. This Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent or any Arranger, constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof.
SECTION 8.10.
Jurisdiction; Consent to Service of Process. (a) The Borrower hereby irrevocably and unconditionally agrees that it
will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in
tort or otherwise, against the Administrative Agent, any Lender, or any affiliates, officers, directors, employees, agents and
advisors of the foregoing in any way relating to this Agreement or the transactions relating hereto, in any forum other than the courts
of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, and each of the parties hereto hereby irrevocably and unconditionally submits to the jurisdiction
of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such
New York State court or, to the fullest extent permitted by applicable law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that any Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.
(b) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that
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 in
any New York State or Federal court. 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.
(c) Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in
this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.11.
Patriot Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation, it is required
to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower
and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with
the Patriot Act and the Beneficial Ownership Regulation. The Borrower shall, promptly following a request by the Administrative Agent
or any Lender, provide all documentation and other information that the Administrative Agent or such Lender reasonably requests that is
necessary to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act and the Beneficial Ownership Regulation.
SECTION 8.12. [Reserved].
SECTION 8.13. No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding
this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between
the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, (B) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents; (ii) (A) the Administrative Agent, each Arranger and each Lender is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) none of the Administrative Agent,
any Arranger or any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers
and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower and its Affiliates, and none of the Administrative Agent, any Arranger or any Lender has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases
any claims that it may have against the Administrative Agent, the Arrangers and the Lenders with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 8.14 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in this Agreement or in any other
agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any Affected Financial
Institution arising under this Agreement, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers
of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement; or
(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.
As used in this Agreement, the following terms shall
have the following meanings:
“Affected Financial Institution”
means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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).
“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.
“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.
“Resolution Authority” means an
EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution” means
any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority” means
the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“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 8.15 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap
Contract 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):
(a) In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such
QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed
by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply
to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
(b) As
used in this Section 8.15, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate”
(as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified
financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Swap Contract” means (a) any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations
or liabilities under any Master Agreement.
SECTION 8.16. Electronic
Execution of Assignments and Certain Other Documents . The words “execute,” “execution,” “signed,”
“signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the
transactions contemplated hereby (including without limitation Assignment and Acceptances, amendments or other modifications, Notices
of Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and
contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is
under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative
Agent pursuant to procedures approved by it.
SECTION 8.17 Waiver of Jury Trial. Each
of the Borrower, the Administrative Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of the Administrative
Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
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Kroger (NYSE:KR)
Historical Stock Chart
From Sep 2024 to Oct 2024
Kroger (NYSE:KR)
Historical Stock Chart
From Oct 2023 to Oct 2024